- (1.) This is an appeal from the judgment and order of the High Court at Nagpur, reversing the judgment and order of the Additional Sessions Judge, Bhandara, and convicting the appellant for the offence of murder and passing a sentence of death on him under S. 302, Penal Code. The brief facts are these. One Kawadu had taken two mango tress on rent from the owners. He used to watch the fruits during the daytime and returned to his house in the evening. On 26-5-1949 he went as usual from his residence to watch the trees and went home for his mid-day meal. After taking his meal he went to resume his watch but did not return home in the evening. His wife therefore got anxious and with some others went to the place where Kawadu used to sit. They found Kawadu lying dead about a few yards away from the hut which he had constructed near the trees. Certain gold ornaments which he used to wear on his ears were found missing. A report of the death was made and police investigation followed. In spite of various visits of the police officers to the site and inquiries made in the village, nothing was traced. On 28-10-1949, i.e., about five months after the death of Kawadu the appellant was arrested. When his house was searched one knife with a wooden handle, one white and dirty piece of dhoti suspected to have blood stains and one rested axe, without handle, found buried three feet below the ground in the kitchen, were taken possession of by the police. On the same day another white dirty dhoti 4 1/2 cubits long suspected to have stains of blood in the middle, here and there was also taken charge of by the police from the brother of the appellant. On 30th October the police seized from on Mangroo certain ear ornaments which appeared to have old blood like marks here and there. On 31st October they further seized from the house of the appellant one crowbar of iron and a receipt dated 25-9-1949 in respect of payment of tax for a she-buffalo. The appellant was taken before Mr. Bhuskute, Magistrate 1st Class, Sakoli, on 9-11-1949 for recording his confession. The Magistrate warned the applicant that he was not bound to make any confession and if he made one it might be used against him. He was given time to reflect without disturbance till the next day and was told that he should not be influenced by any consideration in stating what he wanted to state the next day. He was ordered to be kept separate in the magisterial lock-up away from other under trials but not as to amount to solitary confinement. The record shows that he was kept in the magisterial lock-up but in charge of the police and was taken to the Magistrate again the next day in the custody of Baharam, an orderly. On that day, the Magistrate again told him that he need not say anything unless he freely wished to do so. The appellant told the Magistrate that the police were after him for the last nine or ten days and he was arrested on Sunday the 30th October 1949. In answer to the Magistrate's question whether the police gave him any threat, he stated that they did not allow him to sleep for three days and did not allow him to take meals. They applied leeches to his thighs and thrashed him. In answer to the next question whether anybody had told him that he would be let off or have a lighter punishment awarded to him if he made a confession, he answered in the affirmative and stated that the police people had told him that they would let him off in case he made a confession. He was next asked, if so, why he wanted to make a statement and whether he wished to do so at the instance of somebody or voluntarily. His answer was that he wished to make statement of his free will and pleasure. The Magistrate thereupon put on record that on 10th of November he was satisfied that the appellant was free from all threats and inducements and insisted on making a statement and therefore recorded his confession on that day. In substance the confession is that on 26th May he had gone to the jungle at 10 or 11 o'clock in the morning to dig out roots. He dug them till 2 o'lock and prepared a bundle. When he was coming home, with the bundle on his head, he found the dead body of Kawadu under a tree. On seeing him dead he removed the gold that was in the ears of the dead man and brought it home. He left the gold with his brother-in-law and later on gave them to the police. In answer to a further question of the Magistrate whether he wanted to say anything more the appellant stated as follows : "I have not beaten (Killed) the old man. Because the police threshed me, I out of fear stated that I had struck with a crowbar but it is not true. I have not committed the murder."
(2.) After the committal proceedings, the appellant was tried before the Sessions Judge with four assessors. He was charged with offence of murder under S. 302 and with dishonestly misappropriating property possessed by the said. Kawadu at the time of his death, under S. 404, I.P.C. The assessors unanimously found the appellant not guilty of any offence. The Sessions Judge in a detailed and considered judgment also found the appellant not guilty of any offence and acquitted him. The State Government appealed to the High Court and the High Court reversed the finding of the Sessions Judge and convicted the appellant of the offence of murder and sentenced him to death. The matter was fully argued before us in detail and as in our opinion the conclusion of the High Court was not correct we direct that the appellant be set at liberty and we now give our reasons for our conclusion.
(3.) The case of the prosecution before the Sessions Judge was that three or four days before 26-5-1949 the appellant had told the deceased that he should not wear gold ornaments as someone might murder him for the same. It was alleged that the deceased reported this to his wife and another witnesses. On the day in question the appellant was seen at about 10 a.m. digging roots with an axe and a crowbar about 40 paces away from the spot where the deceased was sitting. There is no evidence thereafter of the movements of the appellant. The post-mortem examination of the body of the deceased that his stomach was empty and at the time of his death was therefore fixed between 4 and 5 p.m. The post-mortem examination further showed that there was a punctured wound on the head which might have been caused by a blow with an axe when the deceased was in a standing position. The fracture of ribs was stated to be possible when the deceased was in a reclining position. The evidence of Somku (P. W. 8) who had gone in the jungle to collect some firewood shows that the appellant was digging roots not far away from where the deceased was sitting, at about 10 a.m. The brother-in-law of the appellant, Mangroo, produced certain ear ornaments which the widow and two other witnesses identified as ornaments the deceased was habitually wearing. The Session Judge, after noticing that there were no eye-witnesses, summarized the entire circumstantial evidence under four heads : (1) the alleged statement of the deceased about the appellant telling him not to were the ornaments lest somebody may murder him to rob him of the ornaments : (2) the presence of the appellant at about 10 a.m. digging roots with an axe and a crowbar 49 paces away from the spot where the deceased was sitting : (3) discovery of the axe and the ornaments; (4) recovery of blood stained pieces of cloth. He also took notice of the confession made by the appellant. After considering these in detail he came to the conclusion that the evidence was not sufficient for the conviction of the appellant.;