Subba Rao, C.J:— The three accused were convicted by the Court of Session, Cuddappah Division, under S. 302 read with S. 34, Penal Code and also under S. 392 read with S. 34, Penal Code and sentenced to death.

2. One Yedoti Subbamma, daughter of Kandula Nagayya of Kandulavaripalle village was brutally murdered on 11-2-1954, near the vanka lying to west of Kumarapalle village. The case of the prosecution is that the deceased Subbamma was the only daughter of Kandula Nagayya, that there were disputes between the deceased and her brother Pedayya and his wife Sitamma and that, at the instigation of Sitamma, the three accused, who were hired assassins, waylaid the deceased near the vanka and killed her. According to the prosecution, the murder was committed in the following way. The three accused having been pre-informed of the movements of the deceased, took arrack and awaited the deceased near the aforesaid vanka. When the deceased came that way, accused 3 pelted a stone of the size of a big orange at the deceased. The deceased fell down shouting “Amma, I am dead”. Accused 1 cut on the neck of the deceased with the bill-hook M.O 6. Accused 2 was having a bigger bill-hook M.O 7 in his hands. Accused 1 snatched it from accused 2 and cut the deceased again on her neck with the bill-hook M.O 7. Then accused 1 gave M.O 7 to accused 2, who cut off the two feet of the deceased, removed the silver anklets and leg-chains worn by the deceased and gave them to accused 1. The learned Sessions Judge accepted the prosecution case and convicted and sentenced the accused as aforesaid.

3. Mr. Srinivasamurthi, in an able argument, satisfied us that the conviction and sentence cannot be sustained on the material placed before us.

4. First as regards the motive, there is the evidence of P.W 1 the father of the deceased. He has two sons Subbayya and Peddayya and one daughter the deceased. The two sons became divided from him about two years prior to the occurrence. Peddayya, his second son, married one Sitamma without his knowledge. He purchased 700 acres of waste land in Narayanarajupadu village-and brought the deceased, her husband and their children to his house and they were residing in his house. He also gifted 1½ acres of land to the deceased under Ex. P-1 the gift deed. On account of this, there were quarrels between the deceased and Sitamma, and Sitamma filed a criminal complaint against the first son for assault. This witness does not in terms say that the murder was at the instigation of Sitamma, though his evidence insinuates that must have been the reason. P.W 8, the husband of the deceased, says in his evidence that there were quarrels between the deceased and Sitamma. But, in cross-examination, he dilutes it by saying that he mostly heard about the quarrels, and that he saw them quarrelling only twice or thrice. P.W 9 is a cousin of Sitamma.

5. On the evening of the day previous to the day of occurrence, he went to Sitamma's house to collect money due to one Mylapalli Venkatareddi on a pronote. At that time, according to him, accused 2 came to Sitamma's threshold & called her & went to the threshold. He would add that they both talked something in low tones, and when Sitamma was about to go inside, accused 2 asked her “whera is the balance” and that Sitamma said that she would pay. Accused 2 then went away.

6. In the confessional statement made by accused 1 before the Sub-Magistrate, he stated that Sitamma asked him to kill the deceased, that Sitamma and her husband Peddayya stated that they would give him half a kunta of land and Rs. 100/- each if he killed her and that they paid him Rs. 70/-. This confession was subsequently retracted. We are not prepared to act upon this confession and we shall give our reasons for doing so at a later stage in the appropriate place. On this evidence, it is not possible to hold that the three accused were hired by Sitamma to do away with the deceased. Without more definite evidence, it is not possible to hold that the quarrels between the sisters-in-law or the preferential treatment given to the daughter by her father would have been a sufficient motive for a young lady like Sitamma to be a party to the murder of her sister-in-law. Anyhow, there is no sufficient evidence on record to sustain such a finding.

7. But, if the evidence is clear as regards the murder, the fact that the motive has not been established would not be of much relevance. The main evidence in this case consists of that of two alleged eye-witnesses P.Ws 10 and 11. As P.W 10 is the most important witness in the case, we shall discuss his evidence in some detail. He lives in the village of Kumarapalle to which accused 1 belongs. He has no property and ekes out his livelihood by doing cooly work. He knows all the three accused and also the deceased and P.Ws 1, 2 and 7. His version of the events may be stated thus. On the day of occurrence he had stomach-ache, and indeed, he had it since two days prior to it. The three accused came to him just before sunrise and told him that, if he drank arrack, he would be relieved of the pain. They took him into the vanka by the side of P.W 1's village and gave him a dose of arrack to drink. The three accused also drank arrack fully at that time.

8. A short while afterwards, the deceased came that way and accused 3 pelted a stone of the size of a big orange at the deceased. The deceased was hit and she fell down shouting “Amma, I am dead”. He went near her and lifted her up. The accused abused him and threatened him. Then, accused 1 cut the deceased on her neck with M.O 6. Accused 2 was having another big bill-hook M.O 7. Accused 1 snatched it from accused 2 and cut the deceased again on her neck with M.O 7. Then accused 1 gave M.O 7 to accused 2, who cut off the two feet of the deceased, removed the silver anklets and leg-chains and gave them to accused 1. Then, the three accused left the place threatening him, that they would cut him if he told about the incident to anybody. If his version is believed, it would certainly establish the prosecution case. But it is a very curious and extra-ordinary version. Would the three accused who planned the murder of the deceased, have come to the house of P.W 10 and taken him to the scene of offence and thereby created an eye-witness to the offence? It is impossible to believe such a story. If really he went along with them, it is more likely that he was an accomplice. In such an event, the prosecution, instead of following the straight course of taking him as an approver, would have put him forward as a disinterested witness. But it is not the prosecution case that he was an accomplice.

9. P.W 10 admits that when the police questioned him at first, he did not tell them that he saw the incident. He explains it by stating that he did not tell them as he was threatened by the accused. The offence was committed on 11-2-1954. The Circle Inspector examined him on 22-2-1954, i.e, more than ten days after the occurrence. P.W 21, the Circle Inspector, says that P.W 10 told him that he was related to P.W 1, that he went and saw a woman who was dead and that he did not tell him that he went with the accused to the rastha to drink arrack. If he was an eye-witness unconnected with the crime, there is no acceptable reason why ten days after the incident he had not given the true facts to the Circle Inspector. Whatever fear he might have had soon after the incident, the time lag was sufficient to enable him to give the true version. But on 18-3-1954, he made a statement under Section 164 of the Cr PC, before the Sub-Magistrate. This statement was made 1½ months after the incident. For the first time therein, he gave the present version. He admits in his evidence that he was kept in the police station for five days and that he was not allowed to go out. Such statements taken after keeping witnesses in police custody for a number of days are always looked upon by Courts with suspicion.

10. Princep and Hill JJ, in — ‘Queen Empress v. Jadub Das’, 27 Cal 295 (A) deprecated the practice of taking statements under similar circumstances as follows: at p. 299:

“We think it was never intended that S. 164 should be applied to such a purpose. It was not intended to enable the police to obtain an incriminating statement by some person, and as it were to put a seal on that statement by sending in that person to a Magistrate, practically under custody, to be examined before the judicial inquiry or trial, and therefore compromised in his evidence when judicial proceedings are regularly taken.”

11. This view was accepted and followed by Chatterji J, in — ‘Emperor v. Manu Chik’, AIR 1938 Pat 290 (B), At p. 295 the learned Judge observed: “It was pointed out by Princep J, in the well-known case in ‘Queen Empress v. Jadub Das (A)’ that a statement of a witness obtained under this section always raises a suspicion that it has not been voluntarily made.”

12. The Nagpur High Court dealt with such statements in — ‘Paramanand v. Emperor’, AIR 1940 Nag 340 (C) and stated the law at p. 346 in a slightly modified form. They observed:

“We are of the opinion that if a statement of a witness is previously recorded under Section 164 of the Cr PC, it leads to an inference that there was a time when the police thought the witness may change, but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded under S. 164 will not be sufficient to discard it. The Court, however, ought to receive it with caution, and if there are other circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon.”

13. We would prefer to accept the aforesaid observations of the learned Judges as laying down the correct law in preference to the observations in ‘Queen Empress v. Jadub Das (A)’ and ‘Emperor v. Manu Chik (B)’. In the present case, the version of P.W 10 that the three accused before committing a planned murder came to his house and took him to the scene of offence for giving him a dose of arrack to cure him of his stomach-ache is inherently improbable. At the earliest stage, he gave to the police a different story. He came out with the present version only after 1½ months and after he was in custody of the police for five days. Though his evidence is consistent with his being a participant in the crime, it is not the case of the prosecution. He is also a man of impecunious circumstances. We are not, therefore, prepared to act upon his evidence.

14. The evidence of P.W 11 is not better. She is a woman aged 60. Her evidence is that, in the early hours of the morning of the day of occurrence, she went towards the vanka for gathering broomstick material and that, having heard the cry “Amma”, she went towards that direction and found accused 1 with a bill-hook in his hands accused 2 with a knife. She also saw accused 3 and P.W 10 there. She describes the incident in so far as accused 1 and 2 took part in it in the same manner as stated by P.W 10. Her cross-examination disclosed that she saw the incident from about SO yards. She never came to that locality except on the one occasion when the murder was committed. No other woman engaged in the same avocation came along with her. She says that she knew accused 1 who belongs to Kumarapalle though she admits that all the people of Kumarapalle are strangers to her. She admits that she works now and then under P.W 1. She also admits that she never informed anyone about the murder till she was examined by the police ten days later, that she was taken to the police station and that she was kept there for two or three days when P.W 10 was also there. About her evidence, the learned Judge himself says in his judgment as follows:

“Of course, there appears to be some doubt whether P.W 11 would have been able to identify the accused or whether she would have known the accused at all prior to the occurrence.”

15. The Circle Inspector, who examined P.W 11 on 23-2-1954, says as P.W 21 that P.W 11 did not tell him that she saw the occurrence or that she saw accused 3 or P.W 10 at the scene of offence or that accused 2 was armed and that she told him that she heard about the murder in the noon from Gumpa Subbaiah. After keeping her for some days in the police station, a statement was taken from her under Section 164 of the Cr PC, on 18-3-1954. Exhibit P. 11 is the statement. For the reasons already mentioned by us in connection with the evidence of P.W 10 we must, in the circumstances of the case, look upon that statement with suspicion. The suspicion is not dispelled but is enhanced by the evidence of P.W 11 in Court. She appears to us as a witness improvised for the occasion. For the reasons already given, we cannot act upon the evidence of P.Ws 10 and 11.

16. The next piece of evidence relied upon for the prosecution is the confession made by accused 1 on 18-3-1954. Exhibit P-8 is the said confession. In that confession, accused 1 states that Sitamma told him that Subbamma was to be killed that Sitamma and Peddayya said that they would give half a gunta of land and Rs. 100/- if he committed the murder of Subbamma and that they paid him Rs. 70/- and asked him to go to their house in the evening. He further adds that, after day-break at 5 O'Clock Peddayya came and told him that the deceased would be coming into the wet lands and asked him to be on the way, that he had brought a bottle of arrack and had drunk and that, when Subbamma came there, he cut her. Before the Committing Magistrate, he retracted from this confession and stated:

“For 15 days the police gave me arrack confusingly and beat me. From this place I was taken to Royachoti. As I was threatened that if I did not state as they instructed my bones would drop. I gave the statement. It is true”.

17. It is, therefore, a retracted confession. It exculpates the other two accused and is, therefore, inconsistent with the prosecution version. It is suggested that suggestion was accepted by the learned Sessions Judge that accused 1 must have made the confession revealing the true facts in so far as he was concerned and exculpating the other two accused in an attempt to take over the entire responsibility and at least to save the other two.

18. It is well-settled that, as a rule of prudence, a retracted confession should not be the basis of a conviction unless it is substantially corroborated by independent evidence. In this case, we are not even satisfied that the confession is voluntary. The three accused made their statements on 18-3-1954. Exhibits D-1 and D-2 are statements of accused 2 and 3 taken at 4-15 P.M and 4-30 P.M respectively. It may be mentioned that the statement of accused 1 was taken at 4 P.M Accused 2 stated that the police beat him for 11 days in station and that they troubled him. He said he did not know any thing. Accused 3 stated in his statement that the police questioned him five or six times and forced him to make a confession. He also said that he did not know anything. So too accused 1 answered to the question put by the Sub-Magistrate “Did the police force you to give the confessional statement” that the police troubled him. Instead of accepting his answer, the Magistrate pursued the question and accused 1 said that nobody troubled him to confess. The Sub-Magistrate himself felt a doubt whether he was making a voluntary statement and, therefore, he gave him 24 hours time for reflection and ordered him to be kept in a separate cell under the care of the Sub-Jail warder. On 19-3-1954, he admitted that he committed the murder. On the facts disclosed in the case, we have no hesitation to hold that the confession was I not voluntary.

19. Reliance is placed upon the discovery of M.Os 6 and 7, bill-hooks and M.Os 8 and 9 shirts, at the place shown by the accused. When these shirts along with M.Os 6 and 7 were sent to the serologist for examination, he sent a report that no blood marks were traced on them. But there is no evidence to connect the bill-hooks found with the bill-hooks alleged to have been used for committing the murder. An attempt was made in, regard to M.O 7 by examining P.W 13 to prove that M.O 7 was pledged with her by accused 2 after the offence, P.W 13 in her evidence, stated in chief-examination that five or ten days after P.W 13 heard about the murder of the deceased, accused 2 came to her house and pledged the billhook with her. But she immediately corrected herself and stated that accused 2 came and pledged the bill-hook six days prior to the murder. It is, therefore, not proper to rely upon this evidence to show that he pledged the bill-hook after the murder. Anyhow, the mere possession of the bill-hook cannot be relied upon as a circumstantial evidence to support the case that those bill-hooks must have been used for committing the murder as the billhooks do not contain any blood-stains.

20. Lastly, it is stated that M.O 1, the silver Kadiyalu and M.O 2 the silver leg-chains worn by the deceased were buried in the vanka where the murder was committed and that, pursuant to Ex. P-23, a statement made by accused 3, the said items were discovered. In view of the decision of the Judicial Committee only that portion of the statement which led to the discovery of M.Os 1 and 2 would be admissible.

21. If so, it is necessary that there should be other admissible evidence to connect M.Os 1 and 2 with that worn by the deceased. Ex. P-25 dated 9-3-1954 is the Panchayatnama prepared at the time said M.Os were identified by P.W 1 and his wife P.W 2. Ex. P-25 was signed by three Panchayatdars and also attested by the police. The document discloses that the identification was conducted in the presence of the prominent persons who signed therein near the police station. P.W 22, the Sub-Inspector says, in his evidence, that he sent for P.Ws 1 and 2, held the identification in respect of M.Os 1 and 2 and that both of them identified the jewels as those worn by the deceased. It is, therefore, clear from the evidence that the Sub-Inspector held the identification test, sent for P.Ws 1 and 2, and, after the identification, got the Panchayatnama written and attested the same. The question is whether the identification of the jewels contained in Ex. P-25 is admissible in evidence under Section 162 of the Cr PC. Section 162(i) of the Cr PC, reads:

“No statement made by any person to a police officer in the course of an investigation under this chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made”. In a recent judgment in Criminal Appeals 4, 28 and 23 of 1954 reported in — ‘Ramkishan v. Bombay State’, (S) AIR 1955 SC 104 (D) the Supreme Court laid down the law on the interpretation of the said section at p. 114 as follows:

“The distinction therefore which has been made by the Calcutta and the Allahabad High Courts between the mental act of identification and the communication thereof by the identifier to another person is quite logical and such communications are tantamount to statements made by the identifiers to a Police Officer in the course of investigation and come within the ban of S. 162. The physical fact of identification has thus no separate existence apart from the statement involved in the very process of identification and in so far as a Police Officer seeks to prove the fact of such identification such evidence of his would attract the operation of S. 162 and would be inadmissible in evidence, the only exception being the evidence sought to be given by the identifier himself in regard to his mental act of identification which he would be entitled to give by way of corroboration of his identification of the accused at the trial.”

22. When it was argued before the learned Judges that an identification involving a statement must i.e deemed to have been made to the panch witnesses and not to the police officers, they observed:

“The whole of the identification parades were thus directed and supervised by the Police Officers and the panch witnesses took a minor part in the same and were there only for purposes of guaranteeing that the requirements of the law in regard to the holding of the identification parades were satisfied. We feel very great reluctance in holding under these circumstances that the statements, if any, involved in the process of identification were statements made by the identifiers to the panch witnesses and not to the Police Officers as otherwise it will be easy for the Police Officers to circumvent the provisions of S. 162 by formally asking the panch witnesses to be present and contending that the statements, if any, made by the identifiers were to the panch witnesses and not to themselves.”

23. In the present case, also, the identification test was conducted and supervised by the Police. The Panchayatnama was also attested by them. We must, therefore, hold, following the Supreme Court decision, that the evidence of identification is inadmissible under Section 162 of the Cr PC. In the circumstances we are constrained to hold on the evidence that the prosecution has not brought home the guilt to the accused. We regret the result but, in the circumstances, it is inevitable. The convictions and sentences are set aside and the accused are set at liberty.

K.S.B

24. Convictions and sentences set aside.