JUDGMENT

(Delivered by Mockett, J.)

The appellant has been convicted and sentenced to death for the murder of one Allu Akkamma by throttling her on the 4th December, 1938, and it is well to remember that the charge is specific that the murder was caused by throttling. On the morning of the 4th December the deceased was proceeding from Goladi, a village which will be found on the south of the plan Ex. M, towards a village called Yedlavalasa, which is not marked on the plan, but which it is conceded is beyond Mettavalasa which is to the north of the plan. The learned Judge has summarised the facts in this case very fully and we may say at the outset that we are largely in agreement with him with regard to his findings of fact. The deceased set out on that morning according to P.W 5, her brother-in-law, at about 8 A.M, and she was seen about one furlong from Goladi village walking in front of a man who P.W 16 was almost but not quite certain was the accused. She was wearing a black sari similar to M.O 2, for that is no dobut what P.W 16 means when he says that she was wearing M.O 2. Her later history is spoken to by P.Ws 17 and 18. P.W 17 says that at about 9 o'clock he saw her near the uplands between two hillocks. He says he was going to Goladi with change to pay coolies. He also saw the accused. He was 100 yards in front of the deceased when he saw him. If that is so, between the place where P.W 16 saw the accused and the deceased and the hillocks the accused had overtaken the deceased. P.W 18 who also was in the neighbourhood of the hillocks says that he saw the accused going towards Mettavalasa and behind him a woman with a black sari similar to M.O 2. He says he saw P.W 17 going towards Goladi. We agree with the learned Sessions Judge that the evidence is more than sufficient to show that on that morning the deceased left her house and proceeded along the road, and we think too that the accused was sufficiently identified as walking at one time behind and at a later stage in front of her. That was the last heard of the deceased. She did not return to her village and there seems to be little doubt that the next seen of her was by P.W 4, a little boy, who on Tuesday the 6th December went to the neighbourhood of P.W 3's field, which is adjacent to the road, to cut grass. He said he saw a person lying down with a black sari covered over the face in the cholam field of P.W 3. He went away because he thought it was P.W 3 watching for persons who had gone to cut grass without his permission. P.W 3 on the Thursday next went to the field and there discovered the body, or rather half the body, of the deceased. She has been satisfactorily identified and no argument was seriously put before us that was not her body. But by that time the body was in two pieces, one-half of which was found a considerable distance to the west of the point where the upper half was found, which was at the point E, on the plan near P.W 3's field.

It is naturally important to ascertain the cause of death in a case of murder. P.W 2, the assistant surgeon of Bobbili Local Fund Hospital, has given evidence about it. He has described the state of this body, which it must be remembered was in two pieces, and he quite definitely says, “I cannot give the cause of death owing to the fragmentary nature of the corpse and the advanced nature of decomposition”. The tongue was protruding apparently. He says that this might have been due to strangling, but it might equally well have been due to decomposition. He does, however, make one interesting statement, namely, that there was a stab on this woman, three-fourths of an inch long, on the left side of the chest between the sixth and seventh ribs. He was unable to trace it further owing to the fact that the lung underneath it had decomposed. He says that might have been caused by the tusk of a wild boar. In this connection it is evident there are wild boars in the neighbourhood, because after seeing what was supposed to be P.W 3 concealed under a black sari, P.W 4 actually joined a hunting party who were after wild pigs. So we are in this position, that it is not possible to say on the evidence before us how this woman met her death.

The police were obviously at a loss. They seem to have suspected a lot of people although they were not willing to admit it. P.W 6 says that at first P.W 5, the brother-in-law of the deceased, was suspected and was arrested, as also were three other persons, but this is denied by P.W 20, the Sub Inspector, who says that he never arrested any other person. He did, he admits, suspect P.W 5 and some gamblers of Mettavalasa. But in this connection it is right to say that apparently in this district the police take a rather strange view as to what constitutes an arrest. For reasons which naturally are not known, being no doubt part of police investigation, the accused was later arrested; he was arrested by P.W 20, and we use that expression advisedly because what happened was he was taken from Goladi village where he was repeatedly questioned by P.W 20 in custody to Mettavalasa at 11 or 12 noon. From then or from an earlier stage, because there is a variation in the evidence as to the exact time when he was taken there, it is evident that this man was subjected to persistent questioning by the Circle Inspector. P.W 9 states that the Circle Inspector questioned him from 9 or 10 in the morning till 1 or 2 in the afternoon. At first the accused denied everything, but after persistent questioning he gave the statement in Ex. J at 1 or 2 P.M Then says P.W 9 the accused was arrested after he had given the statement in Ex. J. That was not the only thing that happened. The Circle Inspector seems to have thought it well to make a production of P.Ws 17 and 18 before the accused and examined them for the second time in his presence. P.W 10 also states—and he is the president of the panchayat Court and the co-operative union—“The Sub-Inspector of police or the Circle Inspector of police arrested him formally at 12-30 P.M or so.” Now in our opinion there is not the slightest doubt that this man was taken in charge by the police at Goladi village, questioned there and taken to Mettavalasa and there closely questioned for a period of some hours. This seems to us, apart from any other aspect of the case, to be entirely contrary to the orders issued to the Madras police relating to investigation of offences. Paragraph 303 is most explicit that while questions to persons who might give useful information are proper, when once an accused person has been arrested the police are strictly forbidden to interrogate him or press him to make any statement, and we consider that it is tantamount to reducing this paragraph to a farce for the police to take a man, hold him for a long period, subject him to incessant question, press him to confess, as we think happened, and then after they had extracted what they wanted, go through the solemn process of formally arresting him. The importance of this is that under this process the accused made a statement which is recorded in Ex. J. It is as follows:

“Last Sunday Allu Akkamma, a Golla woman of Goladi Village, was coming 20 yards behind me. I threw her down and throttled her and she died. Then I removed her two gold nose rings, two gold ear rings and four gold top ear-rings. On the next day while it was still dark I secreted them (the ornaments) after tying them up in small rags, in the row of pots in a corner of my sister Poli's house in Mugada. I will pick out and give the ornaments if you come with me.”

That was attested by the Village Munsif P.W 9, by P.W 10 and the Circle Inspector P.W 21 in addition to two other persons who were examined. It will be observed that the statement namely, about the woman coming behind him, bears considerable resemblance, to the evidence of some of the prosecution witnesses and in this case the accused has suggested that this crime has been laid at his door in order to remove the suspicion from the other Gollas including P.W 5. On receipt of this statement the police and certain of the witnesses including P.Ws 2 and 10 proceeded to the house of P.W 11 who is the sister of the accused. She seems to have been a curious person to choose as a depositary for stolen goods because according to her cross-examination she was not friendly with the accused and he had not visited her for a long time. But the police party went there and according to them they recovered a bundle which contained M.Os 3, 4 and 5. Their procedure also seems to have been strange. It appears from the evidence of P.W 12 that on their arrival they sat down outside P.W 11's house for a period of an hour or 1½ hours, presumbly until it was dark. According to the police officers they recovered these material objects from a pot. P.W 11 is quite clear that she never saw them until they were in the hands of the police. She has denied that she ever looked at them in the interval between the accused going away and the police coming, though this statement seems to contradict her evidence in chief. That is the evidence for the prosecution.

The defence was a complete denial of the whole affair and an allegation that it has been foisted upon the accused by the Gollas in order to take away suspicion from themselves. The prosecution therefore say that the inference of guilt is sufficient to enable us to uphold this conviction and they summarise their case as follows. First, they say there has been a murder. Secondly that, from the accused has been recovered jewels proved to have been on the body at the time of the murder. We may say that it is amply established that the jewels M.Os 3, 4 and 5 were the property of the deceased and were worn by her on the day of her death. We agree with the learned Judge in his conclusion with regard to that. Thirdly, the prosecution says that there is a statement receivable within S. 27 of the Evidence Act which led to the discovery of a fact and is therefore admissible and which contained a confession so wrapped up with the statement leading to the discovery of the fact as to make it, even though it was a confessional statement, admissible under S. 27. Had the statement been free from the infirmities to which we shall later refer, this contention with regard to its admissibility might have been acceptable. We think that the learned Judge admitted that part of it as is reproduced in Ex. J on the basis that it was an ordinary statement under S. 27. But was it an ordinary statement under S. 27? We take the view that it was not. It contained a confession extracted from the accused by a process which we consider wholly foreign to methods and notions which are accepted by the Courts and, we hope, by the heads of the police themselves. This man had been persistently questioned at Goladi; he was persistently questioned for hours at Mettavalasa; throughout being under arrest and we consider that this process was such as to taint any result which may arise from it. It was a clear breach, in our view, of the police instructions which are not to pester people who are under arrest, as this man undoubtedly was. We consider that so far as the statement was a confession it was not a voluntary confession and was not receivable in evidence. We see no reason why the general rule that a confession should be voluntary should not apply to a confessional statement under S. 27. But in any case induced as it was it is of no evidential value. We therefore exclude from consideration of this case the statement attributed to the accused, and we are left entirely with the fact that he took the police to the house of his sister and there produced the jewellery which was on the body of the deceased the day before. The position therefore is that the prosecution must rely on the presumption of guilt which has to be drawn from this recent possession of jewellery taken from a murdered person. But the answer to that is that there is no evidence on which we can say with certainty that the deceased was murdered at all. It is probable that she was murdered. But it is not impossible according to the evidence on the record that she might have died otherwise and not necessarily by strangling. The stab wound and the possibility of it being a wound from a tusk of a boar cannot be overlooked. The nature of the wild animals in this part of the world was not investigated, but there were wild pigs according to the evidence. The fact is however that the cause of her death is not proved. That being so, the presumption which might well have been hostile to the accused within the decision in Narayana v. King-Emperor(1) does not arise. The only evidence we have against this man when Ex. J is rejected is that he was in recent possession of jewellery belonging to a woman who had died owing to an unknown cause. That being so, it is inevitable in our view that this case must fail. It may be that the accused is fortunate. But if the police in excess of zeal think fit to employ methods of this sort they must expect results of this sort also. In view of the above observations we are satisfied that it would be in the highest degree unsafe to maintain this conviction. The conviction will therefore be set aside, the appeal allowed, and the appellant set at liberty.

Appeal allowed.

N.R.R