TMI Blog1955 (11) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... t himself married but she refused to help him. He was also under the impression that, in the event of David's death, he would be preferential heir to the estate of Vengamma and, therefore, harboured the idea of doing away with Vengamma and Bhagyamma and become the manager of the estate. With these motives, on the night of 18-9-1954, when P.W. 5 was away, he entered the house, murdered Vengamma and Bhagyamma, the former by strangling her and the latter by stabbing her and took away the mud pot containing money by removing it from the place where it was buried and also took away a pair of silver bangles from the body of Vengamma. 4. Dr. K. Rajeswari who conducted the autopsy on the dead bodies of the two victims, found the following wounds on the body of Bhagyamma: 1. A lacerated irregularly cut edged wound right across the front portion of the neck extending 3 inches from the back of the right ear as far as 2-1/2 inches to the back of the left ear. Both the ends of the wound were tapering upwards to the occipital region. The wound is at the level of the IIIrd cervical vertebrae and it extends from the front part of the neck to the body of the cervical vertebrae, cutting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the accused by circumstantial evidence. 6. Coming to the motive, the suggestion that the accused would succeed Vengamma after David has no foundation. P.W. 5, the husband of the deceased, Bhagyamma, speaks to the request made by the accused to Vengamma for monetary help to get himself married and her refusal to do so. He says that when she refused to help him the accused left her house in anger. In cross-examination he further adds that about 8 days prior to the occurrence, the accused demanded Vengamma to give money and that when she refused, he threatened to kill her, and went away. This witness gave the first information report Ex. P-17, wherein he stated that, on the night of 18-9-54 he was sleeping on a slab covered over a granary pit, outside his house in its northeastern corner that in the early morning he was awakened by the crying of his child Jayamma and that when he went inside, he saw the dead bodies of his mother-in-law and wile. But as P.W. 5, he gives the following version, which is completely different from that given in the first information report. As he did not get sleep, he went outside the house and was sitting on pit built over a granary. One Yob who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not establish that the accused was found anywhere near the place of occurrence. The fact that he was seen at a place a mile or a mile and a half from the scene of occurrence cannot be a piece of circumstantial evidence for implicating a person in a murder. 8. The next circumstance relied upon is that the accused was absconding till he was arrested on 29-10-54. P.W. 13, the Sub-Inspector, says that he arrested the accused on 29-10-54 at Ayyavari Kodur on the outskirts of the village at about 6 a.m., when he was going out of the village. He does not say that he could not be arrested earlier as he was absconding. P.W. 14, the Circle Inspector, for the first time says that till he was arrested, the accused was absconding from the village. Except his statement, there is nothing on record to show that he was absconding from the village. P.W. 14 says in cross-examination that P.W. 5 told him that he suspected the father of the accused and the paternal uncle of the accused and that Yob, Devadanam and George might have conspired with P.W. 7 and decoyed him to the house of P.W. 7 and organised the affairs. This indicates that the accused was not suspected till a later stage. If rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Police made no attempt to produce this knife in Court. This fact supports the suggestion made by the learned Counsel that the knife alleged to have been taken out by the accused from under the husk in the manger is the same knife found by the pit. The accused in his statement denies that Police or panchayatdars took him to the house of Vengamma and says that he did not know to whom M.O. 4 belonged. In view of the aforesaid suspicious circumstances, we must give the benefit to the accused and hold that the blood-stained knife was not discovered on the information given by the accused. 9. Coming to the other materials discovered on the information given by the accused, Ex. P-23 relates to the white knickers alleged to have been worn by him at the time he committed the murder. It is stated in Ex. P-23 that the accused stated that he buried it in the paddy field of Sheik Hussain Sahib and produced it in the presence of the elders. It is also noticed that on the back of the knickers there were some red marks while on the right side there were green signs here and there. This was signed by P.W. 12 and 3 other elders, who were not examined. The Chemical Examiner did not find any bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied that, in the case of circumstantial evidence, the facts must be verified with scrupulous accuracy and the facts established must be consistent and consistent only with the accused being the culprit and should not be susceptible of any rational explanation. It has been held that inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. 12. Can it be said from the aforesaid facts that the only conclusion is that the accused committed the murder? Before we express our opinion on this question it may be convenient to consider the points of law raised by Mr. Lakshmaiah in an attempt to exclude the discovery of the pot and the silver bangles from the category of relevant evidence. It is contended that the information given to the Police which was admissible as evidence under Section 27 of the Indian Evidence Act is made irrelevant by Article 20(3) of the Constitution of India. Under Section 27 of the Evidence Act, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the sound as stated in certain American decisions. The phrase used in Article 20(3) is 'to be a witness'. A person can be a witness not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of dumb witness (see Section 119 of the Evidence Act) or the like. 'To be a witness' is nothing more than 'to furnish evidence' and such evidence can be furnished through the lips or by production of a tiling or of a document or in other modes. Indeed every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the Court room. The phrase used in Article 20(3) is 'to be a witness' and not to 'appear as a witness'. It follows that the protection afforded to an accused in so far as it is related to the phrase 'to be a witness' is not merely in respect of testimonia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that much information as relates distinctly to the fact thereby discovered can be proved against the accused. The section seems to be based on the view that if fact is actually discovered in consequence of information given some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate... On a bare reading of the terms of the section it appears that what is allowed to be proved is the information or such part thereof as relates distinctly to the fact thereby discovered. The information would consist of a statement made by the accused to the police officer and the police officer is obviously precluded from proving the information or part thereof unless it 'comes within the four corners of the section. The aforesaid passage re-states the law authoritatively laid down by the Judicial Committee in Kotayya v. Emperor ILR (1948) Mad 1 : AIR 1947 PC 67. Their Lordships were not called upon to decide the effect of the impact of Article 20(3) of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y compulsion. 15. Except the statement made by the accused that he was arrested at his house 10 or 12 days after the occurrence and was taken to Nandyal and that he was beaten by the Police, there is nothing on record to suggest that the information was extracted from him by compulsion. The Police Sub-Inspector as P.W. 13, says that he was arrested at 6 a.m. and the Circle Inspector as P.W. 14, says that he gave the information at about 7 a.m. P.W. 13 and P.W. 14 deny that they beat the accused. We have no reason to reject the evidence of the Police Officers. We, therefore, hold that the information was given to the Police voluntarily. If so, it follows that the pro-visions of Article 20(3) of the Constitution of India are not violated, and the information given to the Police voluntarily, in so far as it related to the material objects discovered, would he relevant evidence under Section 27 of the Evidence Act. 16. Learned Counsel then contended that the learned Sessions Judge was wrong in drawing a presumption against the accused under Section 114 of the Evidence Act : from the mere fact that the aforesaid articles were discovered on the information given by him that he must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he temple - that the 2nd accused was on friendly terms with the murdered boy and was speaking to him at the same time and place, that the body of the murdered boy was hidden in a pit, that both the accused went, to Suramangalam station on the same night and took the train, that the 1st accused sold the bangle to a third party, that both the accused executed a bond at Kumbakonam in favour of a relative antedating it to a date earlier than the murder, that the 1st accused was arrested when he was trying to abscond to Rangoon, and that the bond and bangle were discovered on the information given by the accused. On the aforesaid facts, the learned Judges drew the presumption that both the accused were guilty not only of robbery but also of murder. This judgment, therefore, cannot be an authority for the position that whenever articles worn by the deceased are found in the possession of the accused or discovered on the information given by him, it should be presumed that he committed robbery and murder. To draw the presumption, it is further necessary to establish that the murder and the robbery constituted parts of the same transaction and that there must he some reliable evidence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property is found have an explanation to offer which explanation if accepted would prove them to be innocent, it is for them to offer it. 20. Wallace, J., was not able to agree with the observations so widely stated by Devadoss, J. Wallace, J., at p. 291 says: But where, as in this case, the evidence is that none of the stolen property was on the person of the deceased at the time of the murder and there is nothing to show that it could not have been obtained without the use of force to him at ail and there is no certainty that it was not obtained before the murder or after the murder independently of the murder, I an clear that no presumption can be drawn from the mere possession of stolen property to justify a conviction for complicity in the murder... Spencer, O. C. J., to whom the matter was referred says at p. 298 (of ILR Mad) : (at p. 640 of AIR): I think the answer must be that if there is other evidence to connect the accused with the death of the murdered man, a jury or in this country a Judge may find upon circumstantial evidence that he is the murderer. But when the unexplained possession of stolen property is the only circumstance appearing in the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation of the facts is possible before they find the accused guilty. If the accused person offers an explanation, then it is for the prosecution to show that that explanation is untrue. This judgment, therefore, does not lay down that Courts shall presume that an accused found in possession of the articles shown to have been in the possession of the deceased must be held to have committed murder or robbery. Having regard to the facts of that case, the learned Judges drew the inference, while making it clear, that it is for the Judge or jury as the case may be, in each case, to draw an inference of fact from the facts placed before him or them. 21. In Periyasanii Thevan, In re., AIR1950Mad714 , another Division Bench of the Madras High Court drew an inference of murder under the following pieces of circumstantial evidence. The deceased and the accused were on inimical terms some time prior to the date on which the murder took place. The accused had threatened the deceased that he would cut him even as the deceased had cut and killed his goat. On the date of the murder, the deceased and the accused were seen in each other's company or in close proximity to each other som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the burden, the learned Judges acquitted the accused of murder but convicted him under Section 201, I. P. C. 23. It is not necessary to multiply cases. The well-settled rule as to circumstantial evidence is that it must be consistent and consistent only with the guilt of the accused and if the evidence is consistent with any other rational explanation, the accused must be given the benefit. It is also established that, if Warder and robbery form parts of the same transaction, a presumption may be drawn against the accused for murder if he is found to be in possession of the jewels worn by the deceased in the absence of a reasonable explanation by him. But no case goes to the extent of compelling a Court to draw a presumption irrespective of other circumstances in the case. As the presumption is only one of fact, great care should be taken before drawing a presumption particularly in the case of a serious offence on slender material for it would be a leap in the dark with disastrous consequences. Unless, therefore, some definite fact connecting the accused with the murder is established, the Courts should be chary to draw the presumption of murder from the mere fact of posse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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