H. Hombe Gowda, J.
1. These two appeals are against the judgment dated the 7th November, 1956 of the Principal Sessions Judge, Bangalore Division, in Bangalore Sessions Case No. 29 of 1956 convicting and sentencing all the three appellants Govinda Reddy, Krishna and Muniswamy (Accused Nos. 3, 1 and 2 respectively in the trial Court) of the following, offences :--
(1) under Section 302 read with Section 34 of the Indian Penal Code on six counts and sentencing each of the appellants to the extreme penalty of law on each of those counts; (2) under Section 307 read with Section 34 of the Indian Penal Code and sentencing each of the appellants to undergo rigorous imprisonment for ten years; (3) under Section 457 read with. Section 34 of the Indian Penal Code and sentencing each of the appellants to undergo rigorous imprisonment for a period of ten years; (4) under Section 380 read with Section 34 of the Indian Penal Code and sentencing them to rigorous imprisonment for a period of seven years and (5) under Section 392 read with Section 34 of the Indian Penal Code and under Section 397 of the Indian-Penal Code on six counts and sentencing each of them to undergo rigorous imprisonment for a period of ten years on each of those six counts, on the allegation that these appellants broke into 'Ranga Vilas', the residence of Sri Belur Srinivasa Iyengar, on the night of 5th June, 1956 and committed robbery after committing murders of Ramalingarn, Vengadamma, Singamma, Lava, Kusha and Belur Srinivasa Iyengar and causing grievous injuries to Rangalakshmi, daughter of Belur Srinivasa Iyengar with the intention of causing her death.
All the sentences of imprisonment awarded to the appellants have been directed to run concurrently. The learned Principal Sessions Judge has submitted the proceedings of the case for confirmation of the death sentences awarded to the appellants to this Court under Section 374 of the Code of Criminal Procedure.
2. The material facts are these : -- Belur Srinivasa Iyengar, a rich Advocate of this Court was-residing with the members of his family in a building known as 'Ranga Vilas' situated in the heart of Gandhi Nagar Extension in Bangalore City. He had given up his practice on account of his old age and was leading a retired life. He was getting an income of Rs. 1,500 per mensem as rent from the shops and other buildings situated in Gandhi Nagar.
The, members of the family, particularly the womenfolk had got a large number of articles of jewellery prepared for their personal use on occasions. Many of the valuable jewels had been deposited in the two iron safes and other receptacles kept in the store-room or the treasury room of the house. Belur Srinivasa Iyengar, his second wife Vengadamma his daughters Rangalakshmi, Ratna and Prasaima his sons Lava and Kusha and his-mother-in-law Singamma were all the persons of the family living in 'Ranga Vilas'' in June 1956. Belur Srinivasa Iyengar had a son by name Muthanna by his deceased first wife.
He was insane and had therefore been kept in a room constructed for him in the compound and was not residing in the bungalow with the other members of the family. A servant by name Rama-lingam had been engaged by Belur Srinivasa Iyengar and he was sleeping in the verandah of the house during nights to keep watch. On the night of 5th June, 1956 all the members of the family took their food as usual and retired to bed at about10 P.M, Belur Srinivasa Iyengar had sustained a fracture due to a tall some days prior to 5th June, 1956 and was confined to bed and therefore he was served with food on his bed on the night of 5th June, 1956.
He was sleeping in a room just adjoining the hall by the side of the Verandah out a cot. Vengadamma, her sons Lava and Kusha, her daughter Rangalakshmi and her mother Singamma were sleeping in a room adjoining the bed room of Belur Srinivasa Iyengar on three cots which had been kept close to each other. -The door between the hall and the bed room of Vengadamma had been kept open. Rathna and Prasanna, other two daughters of Belur Srinivasa Iyengar were sleeping in a room in the 'Angala' near the kitchen block of the house. Ratna was lying on a cot and Prasanna was lying on a bed spread over on the floor in that room.
The doors between the hind portion of the house and the hall and the verandah had been kept open. Ramalingam, the watchman, was sleeping on the western side of the verandah of the house. Vengadamma had invited Yellamma, wife of Ramalingam, to attend to some work early on the next morning in her house. Accordingly Yellamma went to the house of Belur Srinivasa Iyengar early on the morning of 6th June, 1956 with Ammakannamma.
They reached 'Ranga Vilas' at about 6 A.M. on 6th June, 1956 and found that the front gate of the house had been closed but the other gate was a bit ajar. They entered the compound through that gate. Yellamma went into the verandah of the house and found that the main door of the house was open and none of the inmates of the house were moving about. She then proceeded to the place where Ramalingam, her husband, used to sleep to find out what he was doing.
She found that her husband Ramalingam was lying dead in a pool of blood with bleeding injuries on his face, neck and head. She cried out for help. Ammakannamma, who was collecting some fruits in the garden ran to the place on hearing the cries of her sister-in-law Yellamma. She found that her brother Ramalingam had been murdered and was lying dead. Both the ladies then began to weep. Ratna who was sleeping in the room adjoining the 'Angala' near the kitchen portion of the house heard the wails and cries of the women in the verandah of the house and woke up and came out to see what the matter was.
On coming out of the room she found that the front door of the house had been kept open and one of the bars of the window on the left side of the verandah had been wrenched and had come out of the socket. She rushed to the verandah and found Ramalingam lying dead in a pool of blood and that Yellamma and her sister-in-law Ammakannamma were weeping. Having observed this ghastly scene she rushed to the bed-room of her mother Vengadamma to inform her about the incident. She found that her mother Vengadamma, her grandmother Singamma and her twin brothers Lava and Kusha were lying dead in their beds in pools of blood and with a number of injuries on their heads and necks.
She found Rangalakshmi, her sister, sitting leaning against the wall close to the entrance to thestore-room. She had a number of bleeding injuries on her person and was unconscious. Ratna then rushed to the bed-room of her father Belur Srinivasa Iyengar to inform him about the murders of the several persons of the house and found that Belur Srinivasa Iyengar was also lying in his bed on a pool of blood with a number of injuries on his head, face and neck. He was not dead but was unconscious.
Ratna then ran to the house of one Nagaraj, who was residing in one of the outhouses belonging to Belur Srinivasa Iyengar and informed him that her father, mother, grand-mother and brothers had all been murdered and requested him to come to the house. Srinivasa and Radhakrishna, two other tenants of Belur Srinivasa Iyengar who heard the news while Ratna was narrating it to Nagaraj followed them from behind.
Nagaraj went into 'Ranga Vilas' through the front varendah and found Ramalingam lying dead on a mat with a number of injuries on his person. He then went into the bed-room of Vengadamma and found Vengadamma her mother Singamma and her two sons Lava and Kusha were lying in a pool of blood on the three cots kept close to each other. Rangalakshmi was sitting leaning against the wall just in front of the doorway which leads to the store-room.
Nagaraj tried to call out Rangalakshmi but there was no response. Ratna then led Nagaraj to the bed-room of her father Belur Srinivasa Iyengar and showed him that her father was lying in an unconscious state and had a number of bleeding injuries on his person. When Nagaraj and his friends Shrinivasa and Radhakrishna were in the bed-room of Belur Srinivasa Iyengar observing his condition, Ratna went into the store-room and found that the iron safes, almirah and other trunks in which they had kept their valuable jewellery and cash had all been ransacked and the boxes were lying with clothings and silver vessels scattered all round them in the room. Ratna then cried out to Nagaraj and others that the house had been burgled and all the valuable jewellery had been takes away by some persons.
Ratna began to cry standing in front of the store-room. Prasanna, the other sister of Ratna who was sleeping in the room adjoining the 'Angala' heard the cries of her sister and woke up and came to the place to ascertain why she was weeping. As she entered the bed-room of her mother, she found ail the four persons that were sleeping on the beds lying dead in pools of blood and Rangalakshmi sitting leaning against the wall in front of the door leading to the store-room.
Prasanna then rushed to the bed-room of her father and found that he was lying in an unconscious state with bleeding injuries. Nagaraj requested his friends Srinivasa and Radhakrishna to stay on in the house with the two girls and proceeded to the Taj Mahal Hotel, which is nearby and sent telephone message to the Control Station of the Central Police about the incident. He informed the Sub-Inspector of Police, Srikanta Reddy, who was in charge of the Control Station that 4 or 5 persons had been murdered in 'Ranga Vilas' -- the residence of Belur Srinivasa Iyengar and requested the Police Officer to come to the place at once.
He also telephoned for the Ambulance Van toremove Belur Srinivasa Iyengar and Rangalakshmi who were lying in an unconscious state. Sub-Inspector Srikanta Reddy, who received the telephone message from Nagaraj' at about 6-30 A.M. conveyed the information to Sri Sivacharan Singh, Jurisdictional Inspector and proceeded to the residence of Belur Srinivasa Iyengar with some reserve police constables in a police van. He posted the police constables round about the compound with a direction that they should not allow any one to enter into the premises.
He entered into the bungalow and found Nagaraj, Srinivasa and Radhakrishna standing in the verandah and Ratna and Prasanna standing weeping in the hall of the house. As he entered the verandah he found Yellamma and Ammakannamma crying on the western verandah near the dead body of Ramalingam. Nagaraj and his friends led Srikanta Reddy into the house through the hall andshowed him the condition of the house. Srikanta Reddy observed a crow-bar (M.O. 4) leaning against the wall in the bed-room of Vengadamma and there were blood stains on it. He also found a crow-bar (M.O. 1), an iron rod (M.O. 2) and a bread knife (M.O. 5) on the bed of Vengadamma.
The crow-bars and the iron rod were bloodstained. Srikanta Reddy observed that the electric light in the store-room or the treasury room was burning and that the doors of the iron safes and the almirahs were all open. Several empty jewellery boxes and clothes pulled out from the boxes were all found scattered on the floor. Sivacharan Singh, the Inspector of Police 'C' Division, who received the message from Srikanta Reddy came to 'Ranga Vilas' at about 7 A.M. in a van along with some police officers, who were with him on their way to attend a parade.
By then the Ambulance Van also came to the place. Sivacharan Singh removed Belur Srinivasa Iyengar and Rangalakshmi who were injured and who were in an unconscious condition in the Ambulance Van to the Victoria Hospital for proper treatment. He then recorded the statement of Nagaraj and registered a case in Crime No. 93 of 1958 of 'Ooparpet' Police Station and submitted the first information report to the authorities. He had by then conveyed the information through telephone to Sri Revanna, District Superintendent of Police, Bangalore North.
The District Superintendent of police and the Deputy Inspector-General of Police came to the place some time later. The Inspector of Police delivered a copy of the first information report to Sri Revanna, District Superintendent of Police. The Inspector of Police collected the panchayetdars for the purpose of conducting the preliminary investigation over the dead bodies under Section 174 of the Code of Criminal Procedure. He summoned the Finger Print Experts and the Photographer of the Police Department to the place to examine the several articles and the places to find out whether there were any foot or finger impressions of any one of them which were identifiable and to take photographs if necessary.
Accordingly photographer Thimmiah and Finger Print Expert Prema attached to the Scientific Laboratory of the Police Department came to the place in a Van along with some others. Thimmiah, the photographer, took some photographs. The Finger Print Expert examined several impressions on several articles that were lying scattered in the rooms including the impressions found on the cots, crowbars, and on the switch in the store-room. Many of those impressions were either smudged or overlapping or partial and were not capable of identification. He directed the photographer to take some photographs of some of those impressions to examine them in the laboratory whether they were capable of identification. On examining the several silver articles that were lying scattered in the storeroom, the Expert found that there were some marks of fingers on 19 of those articles. He showed them to the panchayetdars and with the permission of the Inspector of Police Sivacharan Singh, he took possession of those articles for the purpose of examining them scientifically in the laboratory. The photographer and the Finger Print Expert left the place at about 10 A.M. after examining all the necessary places and materials and taking necessary photographs with the 19 silver articles. Then Sivacharan Singh, the Inspector of Police, directed Ratna to examine the articles of jewellary and to furnish him a list of the articles that had been stolen from the house. Ratna went into the store-room and after examining the several receptacles gave out a list of articles which according to her had been stolen from the house. The Inspector of Police got it reduced into writing and obtained the signature of Ratna to it. He despatched it at once to the Magistrate with a request to file the same along with the first information report already submitted by him. The Police Officers and other panchayetdars observed the dog lying in a quadrangle in a dazed condition and suspected that it had been poisoned and therefore, summoned the Veterinary Doctor to the place to examine the dog. The Veterinary Doctor who came to the place found the dog had been doped and for the purpose of examining took the same to the Hospital. The Inspector of Police Sivacharan Singh commenced proceedings under Section 174 of the Code of Criminal Procedure over the dead bodies of the several persons that were lying dead -- Ramalingam, Vengadamma, Singamma, Lava and Kusha -- in the presence of the panchayetdars. The panchayetdars observed the condition of the bar which had been wrenched in the window adjoining the verandah through which the culprits had obviously gained entrance and to ascertain whether the space in between the bars in that condition admitted entry of a person, directed the Daffedar Dyaviah to pass through the opening. Daffedar Dyaviah easily passed through it. The panchayetdars and the Inspector of Police found a hammer kept on the chair in the hall and half portions of cinema tickets of 'Himalaya Talkies' lying by the side of the chair. The hammer, crow-bar and the half portions of the cinema tickets and the bloodstained clothes were all seized during the course of the investigation in the presence of the panchayetdars. The injuries on the several dead persons, the position and the condition of the dead bodies were all noted in the several inquest reports prepared in the presence of the panchayetdars. The Inspector of Police also seized the keys of the iron safe and the wooden almirah which were in the respectivekey holes, 24 empty jewellery boxes and other articles that were lying scattered and which were necessary for the purpose of investigation. The bodies of Vengadamma, Lava, Kasha, Singamma and Ramalingam were sent to the Victoria Hospital with the police officers for the purpose of post-mortem examination. Dr. Narasimha Setty conducted the postmortem examination over the dead bodies of Lava, Kusha and Ramalingam. Dr. Devanniah conducted the post-mortem examination over the dead bodies of Singamma and Vengadamma. At the request of the Inspector of Police the two Doctors cut the finger tips of the deceased persons and sent them to the Police for the purpose of obtaining their impressions for the purpose of comparison with the latent impressions, if, any, that may be deciphered by the Experts. The Inspector of Police completed the preliminary investigation. Rangalakshmi who was taken to the Victoria Hospital was examined by Dr. Srinivas and was admitted as an in-patient in the Victoria Hospital.
3. Belur Srinivasa Iyengar was also admitted into the Victoria Hospital. In spite of the best medical aid given to him, Belur Srinivasa Iyengar died at about 6-30 P.M. on the same day in the Hospital. Sri Revanna, District Superintendent of Police, Bangalore North, who had jurisdiction over Bangalore City took up the further investigation of the case from the Inspector of Police Sivacharan Singh at about 4 A.M. on 7th June, 1956.
The District Superintendent of Police directed Ranga Rao (P.I.) to conduct the preliminary investigation under Section 174 of the Code of Criminal Procedure over the dead body of Belur Srinivasa Iyengar in the Victoria Hospital. Sri Revanna, District Superintendent of Police, examined some witnesses on the 7th and 8th June, 1956. Rangalakshmi was unconscious and her condition was precarious. Till about the midnight of 8th June, 1956 the District Superintendent of Police was not able to get any clue about the culprits.
4. On the night of 8th June, 1956 Daffedar Vedagiri was on patrol duty in Seshadripuram. He was moving in a van in the Link Road. He observed a person moving in suspicious circumstances in that road. Therefore, he stopped the van and questioned him why ho was moving about in that locality in that odd hour. He observed a bundle with the man and opened the same and found that there was a crow-bar and a steel rod which are generally used by thieves for house breaking.
The Daffedar ascertained from the person that he was Channa of Chikkanayakanahalli, a previous convict and therefore put him into the Van and took him to the police station. Early on the morning of 9th June, 1956 the Inspector of Police of Seshadripuram Sri Basavarajiah came to the station. Daffedar Vedagiri produced Channa before him. Basavarajiah interrogated Channa and learnt from him that he had come to Bangalore about a fortnight before that date and had attempted along with one Krishna and Muniswamy of Ulsoor to commit burglary in the house of Belur Srinivasa Iyengar and had failed in the attempt.
Basavarajiah telephoned to Sri Revanna, District Superintendent of Police, Bangalore North and conveyed to him this important clue furnished by Channa. Revanna proceeded to the Seshadripurampolice Station at once, He went through the statement made by Channa which had been reduced into writing by the Inspector of Police. Channa offered to show the residence of Krishna in Ulsoor. Then the D.S.P. directed Basavarajiah to take Channa with him to Ulsoor and to arrest Krishna.
Accordingly Basavarajiah proceeded to Ulsoor in the company of Channa. Channa pointed out the house of Krishna in Gurumurthi Lane just by the side of Ramakrishna Mutt Road in Ulsoor. Krishna was not in the house. Therefore Basavarajiah was waiting along with Channa and his men in mufti at some distance for the arrival of Krishna. Sometime later Krishna came into Gurumurthi Lane which leads off from Ramakrishna Mutt Road and alighted from his motor cycle and was proceeding towards the house bearing No. 21 Ramakrishna Mutt Road, Ulsoor.
On being pointed out by Channa, the Inspector of Police Basavarajiah proceeded to the place and arrested Krishna and took him to the Ulsoor Police Station and produced him before the Inspector of Police in charge of that Station. The person of A-1 Krishna was searched in the presence of the panchayetdars. A sum of Rs. 1,065, a bunch of keys and two cash bills were found on his person and they were seized under a mahazar in the presence of the panchayetdars.
Then Basavarajaiah brought and produced Krishna before Sri Revanna. The District Superintendent of police examined Krishna and he offered to show the trunks in his house in which he had kept the articles of jewellery and also the bloodstained clothes and took the police officers to the house bearing No. 21, Ramakrishna Mutt Road, Ulsoor. On reaching the house he took the bunch of keys that had been seized by the Police Officer and opened the trunks and produced a large number of jewels from out of the two trunks.
He also took out and produced a bundle of clothes that had been kept in the hedge of the compound of the house which were bloodstained. These articles were seized under a mahazar in the presence of the panchayetdars by the Investigating Officer. Ratna, Prasanna, daughters of Belur Srinivasa Iyengar and Dr. Srirangamma were sent for. They identified the several articles of jewellery as belonging to Belur Srinivasa Iyengar and as those that were in the house of Belur Srinivasa Iyengar on the night of 5th June, 1956.
There were dhobi marks on two of the bloodstained clothes. One Motappa, a dhoby was summoned to the place and he identified the bloodstained clothes which bore the mark (SIC) as those that he Lad washed for Al Krishna. Accused Muniswamy was arrested on the very same day near a toddy shop in the City of Bangalore and his person was searched. Some articles of jewellery and some cash were recovered from his person. These articles of jewellery were also identified by the daughters of Belur Srinivasa Iyengar, Ratna and Prasanna and Dr. Srirangamma as belonging to them.
The house of A2 Muniswamy in Chinnayanapalya was searched on the same day and A2 Muniswamy produced a paper packet in which he had kept some articles of jewellery from out of the over in the house which had been locked whichhe opened with his keys. These articles of jewellery were identified as belonging to Belur Srinivasa Iyengar. A3 Govinda Reddy was arrested by the Inspector of Police on the evening of 10th June, 1956, near the Taxi stand in front of the City Market and his person was searched.
Three items of jewellery, viz., a pair of pearl bangles, one pair of gold bangles set with red stones and a necklace with red stones embedded in it, were recovered from his person. These articles of jewellery were also identified by the two daughters and by Dr. Srirangamma. From the morning of 8th June, 1956, events moved fast. The Investigating Officer Sri Revanna examined a number of witnesses and was able to collect sufficient materials about the complicity of the accused.
The Finger Print Export who had taken 19 silver articles from the house of Belur Srinivasa Iyengar to the laboratory for the purpose of a detailed examination on 6th June 1956, found on close examination that there were some identifiable marks on three of the silver articles. He developed those impressions with powdering method and instructed Photographer Thimmiah to take photographs of those impressions, develop and enlarge them for the purpose of comparison. Thimmaiah did so.
The photographs (enlarged) of the impressions found on the three articles along with the other photographs of the smudged and overlapping impressions that had been taken by the photographer which were developed by him in the laboratory, were handed over to Sri Mohamed Yakoob, the A.S.P. in charge of the Scientific Laboratory for purposes of comparison. The impressions taken from the Finger tips cut from the dead bodies (of Vengadamma, Singamma, Lava, Kusha, Ramalingam and Belur Srinivasa Iyengar) by the Doctors who conducted the post mortem examination which had been sent to the Police were compared with the identifiable impressions found on the three silver wares and they did not tally with any of those impressions.
Sri Mohamed Yakoob intimated this fact to the Investigating Officer Sri Revanna and requested him that he may send impressions of suspects, if any, for purposes of comparison. The Investigating . Officer instructed his subordinates to take the impressions of the fingers of all the three accused persons who were kept in different lock-ups. Accordingly, the impressions of all the fingers of all the three accused were taken by P.W. 111 Nanjundiah and P.W. 112 Krishnamurthy on form No. 94 and these impressions were sent to the Finger Print Expert for purposes of comparison with the latent impressions that had been developed.
The Finger Print Expert compared the photographs of the latent impressions taken from the silver wares with the finger impressions of the three accused persons and found that the identity of all the three accused persons as those that had handled them was established. The expert sent a certificate to this effect along with the enlarged photographs of the latent and patent impressions (identical) pasted on a sheet of paper to the Investigating Officer. The Investigating Officer could not examine Rangalakshmi, even after she regained her consciousness, as the Doctors who were treating her expressed the opinion that she was not competent to make a statement.
After completing the investigation, the District Superintendent of Police, Bangalore North, placed a charge-sheet against the appellants for offences under Sections 457, 459, 460, 380, 392, 394, 397, 302 and 307 and Section 34 of the Indian Penal Code before the City Magistrate, Bangalore, on the 7th day of July, 1956. Since there were no eye witnesses for the incident, the learned City Magistrate, Bangalore, perused the documents filed by the prosecution under Section 173 of the Code of Criminal Procedure and framed charges under Section 302, read with Section 34 of the Indian Pena! Code, Section 307, read with Section 34 of the Indian Penal Code, Section 457, read with Section 34 of the Indian Penal Code, Section 380, read with Section 34 of the Indian Penal Code, Section 392, read with Section 34 I. P. C., Section 394 read with Section 34 I. P. C., Section 397, read with Section 34 of the Indian Penal Code and Section 460 of the Indian Penal Code against all the three accused and committed them to take their trial before the Sessions Judge, Bangalore.
After perusing the records, the learned Sessions Judge found that the prosecution had cited as many as 160 witnesses and all the accused had taken lime to file a list of defence witnesses. He was of the opinion that the trial was likely to last for about a month and therefore, applied to this Court under Section 269(4) of the Code of Criminal Procedure for permission to try the case himself without a jury. The reference was registered as Criminal Referred Case No. 2 of 1956 on the file of this Court and notices of the same were issued to the accused. Sri M.C. Guru, the learned Counsel for accused I and 2 did not oppose the application and A3 Govinda Reddy did not raise any objection. Hence this Court passed orders directing that the case shall be tried by the Sessions Judge himself without a jury. Accordingly, the learned Sessions Judge tried the case without a jury.
All the appellants pleaded 'not guilty' to the several charges that were read over and explained by the learned Sessions Judge and claimed to be tried. The prosecution examined 116 witnesses to establish the case against the appellants. Three witnesses were examined on behalf of A3 Govinda Reddy. A1 and A2 did not examine any defence witnesses. On a consideration of the entire evidence adduced in the case, the learned Sessions Judge came to the conclusion that the prosecution had established a clear case against the accused on all the charges framed against them and convicted and sentenced them as stated above.
The learned Sessions Judge was of the opinion that since all the appellants had been convicted under Section 457 of the Indian Penal Code and also under Section 302 read with Section 34 of the Indian Penal Code no separate conviction or sentence for the offence under Section 460 of the Indian Penal Code was called for and therefore did not pass separate sentences. It is against these convictions and sentences passed against them that the present appeals have been filed by the accused.
The learned Sessions Judge has also submitted the proceedings of the case for confirmation of the death sentences passed against the accused under Section 374 of the Code of Criminal Procedure.
5. That Ramalingam, Vengadamma, Lava, Kusha, Singamma and Rangalakshmi were hale and healthy on the night of 5-6-1956 and retired to bed is proved by the evidence of P.W. 79 Ratna and P. W. 80 Prasanna -- two daughters of Belur Srinivasa Iyengar, and by the evidence of Yellamma (P.W. 78). Belur Srinivasa Iyengar had sustained a fracture and was bedridden. He was otherwise hale and healthy and went to bed as usual on the night of 5-6-1956.
That all the inmates of the house were hale and healthy and retired to bed after food, that Ramalingam, the male servant, slept in the verandah o[ the house on the western side while others slept in the two bed rooms adjoining each other is testified by P.W. 70 Ratna and P.W. 80 Prasanna, the two surviving daughters of Belur Srinivasa Iyengar, who were sleeping in another room of the same house on that night. Yellamma P.W. 78 and Ammakannammaa have deposed that Ramalingam came to their house at about 9 P.M. on the night of 5th June, 1956 for food and left for his master's house, that is, to the house of Belur Srinivasa Iyengar as usual after taking his night meal.
P.W. 78 Yellamma has further stated that Vengadamma, wife of Belur Srinivasa Iyengar, had directed her to come to her house for some work early in the next morning, that is, on 6th June, 1956 and therefore, she went to the house early at about 6 A.M. along with her sister-in-law Ammakannamma. She found the main door of the house open and a bit ajar. She proceeded to find out what her husband Ramalingam was doing and when she approached the verandah found him lying dead in his bed in a pool of blood with a number of injuries and raised a cry.
P.W. 78 Yellamma, Amakannamma, P.W. 79, Ratna, P.W. 80 Prasanna, P.W. 25 Nagaraj have described how five ghastly murders had been committed' in the house. The circumstances narrated by these witnesses show that the house had been burgled by some persons on the night and the culprits had ransacked the safes and other receptacles after murdering the inmates by delivering blows to their heads with crow-bars while they were asleep and carried away the loot.
The several witnesses found Belur Srinivasa Iyengar was lying in an unconscious state with a number of profusely bleeding injuries on his bed and that Rangalakshmi was sitting leaning against the wall just by the side of the door of the storeroom adjoining the bed-room of Vengadamma in an unconscious condition and with a number of bleeding injuries on her person. They have also stated that a bar of the window in the verandah had been wrenched and blood stains were seen on it.
It is in evidence and it is not disputed that Belur Srinivasa Iyengar, who was removed to the Victoria Hospital in an Ambulance Van and admitted as an inpatient for treatment died at about 6-30 P.M. on 6th June, 1936. P.W. 12 Dr. Narasimha Setty and P.W. 13 Dr. Devanniah conducted the post mortem examinations over the dead bodies of these six persons and have issued certificates. Exhibit P-50, Exhibit P-51 and Exhibit P-52 are the post mortem certificates in respect of Kusha, Lava and Ramalingam respectively.
Exhibits P-54 and P-56 are the post mortem certificates in respect of Singamma and Vengadamma and Exhibit P-58 is the post mortem certificate relating to Belur Srinivasa Iyengar. The two doctors, who conducted the post mortem examinations over the dead bodies, found a good number of lacerated and incised injuries on the upper portions of the bodies of the murdered persons and have expressed their opinion that the death in each case was due to shock as a result of profuse haemorrhage and the fractures of the bones on the skull.
They have described the several injuries and the fractures that they observed in detail in the post mortem certificates and have also given evidence in Court. They have further stated that the injuries found on the bodies of the deceased persons might have been caused with M.Os. 1, 2, 3 and 4 M.Os. 1, 2, 4 and 5 were lying in the house and were all blood stained. The evidence of these Doctors has remained unchallenged, That these six persons, viz., Ramalingam, Vengadamma, Sin-gamma, Lava, Kusha and Belur Srinivasa Iyengar who were alive and in normal health on the night of 5th June, 1950 had met an unnatural death at the hands of some other persons than themselves in the course of the night cannot be and as a matter of fact is not disputed.
Rangalakshmi who had also received injuries and was removed to the Victoria Hospital for treatment in an unconscious state recovered later on. It is, therefore, clear from the evidence adduced by the prosecution that some persons had gained entrance to the premises of Belur Srinivasa Iyengar on the night of 5th June, 1936 after wrenching the bar of the window adjoining the bed-room of Belur Srinivasa Iyengar and with weapons like crowbars, iron-rods, hammer and knives and had caused the death of these persons by inflicting injuries with them.
A faint attempt was, no doubt, made by Sri M.C. Guru in the course of his arguments to suggest that it is doubtful whether culprits Had gained their entrance into the premises after wrenching the bar of the window. He based his arguments on the ground that there was some difference in the size of the gap in the window in the two photographs taken by P.W. 108 Thimmiah, who was-called to the place on the morning of 6th June, 1956 to take photographs of the several places.
In one of these photographs the window bar which is wrenched appears to have come out from the socket and in the other it looks as though it is sticking to it and therefore the learned Counsel suggested that it was unlikely that the gap created by the wrenching of the bar was sufficient enough to admit of any person in its original position and that it is possible the gap became big when Daffedar Dyaviah was made to pass through it by P.W. 114 Sivacharan Singh in the presence of the panchayetdars to find out whether it admitted entrance of a man.
There is no substance in this argument. P.W. 79 Ratna, P.W. 78 Yellamma, P.W. 25 Nagaraj and others including the Inspector of Police who went to the place curly in the morning have all stated that the bar of the window had been wrenched and the top portion of the bar had been removed from the socket and the gap created admitted of theentry of a man without any difficulty. The bar (M.O. 39) is produced into Court. It is 3/4' in diameter and it is, in our opinion, not possible to bend the same in fixed condition while attempting to pass through it.
6. Before proceeding to consider the several circumstances relied upon by the prosecution and scrutinise the evidence adduced to establish those circumstances, we shall deal with two preliminary objections raised by the learned counsel for appellant Govinda Reddy (Cr. Ap. No. 133 of 1956). Sri Bashyam contended that the trial of accused by the learned Sessions Judge is irregular in that the learned Sessions Judge allowed during the trial the same counsel to represent all the three accused per-sons when it had been alleged that it was in pursuance of a plan or conspiracy that the accused had committed murders while committing robbery.
It was urged that the learned Sessions Judge should have directed the third accused to engage a different counsel to defend him. It was contended that the procedure adopted by the learned Judge in allowing the same counsel to appear for all the accused is improper and illegal and prejudiced the third accused Govinda Reddy and therefore the convictions may be set aside and the case learned for retrial. The second objection raised by Sri K. Bashyam is that the order passed by this Court in Criminal Referred Case No. 2 of 56 permitting the learned Sessions Judge to try the case himself without the aid of a jury was unjust, improper and unconstitutional as being discriminatory and therefore the trial is vitiated and should be set aside and retrial ordered.
We may at once state that there is no substance in the first objection. The trial Judge had no voice in the appointment of the legal adviser by the third accused Govinda Reddy. The learned Judge was under no obligation to appoint one for him. There is no statutory or constitutional requirement to provide legal assistance to the accused persons. An accused person has no right to demand the court to supply him with a lawyer.
It is his duty to ask for a lawyer if he so desires to engage one. The choice of the lawyer is always the look out of an accused person. This right of an accused person has been guaranteed by Article 22(1) of the Constitution of India. Section 340 of the Code of Criminal Procedure also enables him to engage a lawyer of his own choice. But what all the Court under Section 340 of the Code of Criminal Procedure is bound to do is to give the necessary opportunity to an accused person to engage a legal adviser to conduct his defence if he so desires.
The Circular Orders issued under the authority of the High Court in this State lay down that in cases in which an accused person is charged and tried under Section 302 of the Indian Penal Code a counsel should be appointed to defend him if he states that he has no means to engage one. But in the case on hand the facts make it abundantly clear that the third accused Govinda Reddy did not ask for any assistance or for the services of a standing counsel to defend him on the ground that he had no means to engage a counsel for him.
On the other hand, it is clear from the records that Sri K. Bashyam had undertaken to appear andhad filed a vakalatnama on behalf of third accused Govinda Reddy while the first and the second accused, viz., Krishna and Muniswamy were being defended by Sri M.C. Guru after the case was committed to the Sessions Court by the City Magistrate, Bangalore. Sri T. Laxminarayana Rao on behalf of Sri K. Bashyam filed an application (I.A. No. I) before the Sessions Judge under Section 344 of the Code of Criminal Procedure praying that the trial of the case may be adjourned to about a month, from 3rd September, 1956.
The learned Sessions Judge heard the arguments of the parties and passed orders on 22nd August, 1956 and posted the case for trial to 10th September, 1956. The trial actually commenced on 10th September, 1956. On that day Sri M.C. Guru filed a memo of appearance for the first accused Krishna and the second accused Muniswamy.. Sri T.L.N. who had filed a memo of appearance for the third accused Govinda Reddy on 21st August, 1956 submitted to the Court that he had no instructions to appear and conduct the case for A3 Govinda Reddy and sought for permission of the Court to retire.
The permission sought for by him was granted aud he retired. The third accused Govinda Reddy then submitted that he expected Sri K. Bhashyam would appear for him on that day and that since he had not come he would make other arrangements on 11th September, 1958. But Sri Bhashyam had addressed a letter to the learned Sessions Judge on 30th August, 1956 to the effect that he was not appearing for the third accused Govinda Reddy in the case. In those circumstances the learned Sessions Judge appointed Sri C.L. Shivappa as a standing counsel to defend the third accused Govinda Reddy.
The standing counsel requested for some time to study the records and therefore the case was adjourned to 11th September, 1956. On 11th, September, 1956 the third accused Govinda Reddy prayed for permission to engage the services of Sri M. C. Guru and the learned Sessions Judge granted the permission sought for by him and Sri. Guru filed a memo of appearance for him also and conducted the case on behalf of all the three accused till 19th September, 1956 on which date Sri B.T. Sundararajan and Sri S. Krishnamurthy of Madras Bar and Sri K.R. Ramachandra Rao of. Bangalore Bar sought for permission of the Court to appear for the third accused Govinda Reddy along with Sri Guru.
At the request of Sri S. Krishnamurthy the examination of the witnesses was stopped on 19th September, 1956 and the case was adjourned to 20th September, 1958 to enable Sri Guru to make a statement whether he had any objection for the other advocates appearing for the third accused Govinda-Reddy. On 20th September, 1956 Sri Guru submitted that he had no objection for the Advocates from Madras appearing for the third accused Govinda Reddy along with him and therefore Sri S. Krishnamurthy filed a memo of appearance on he-half and also on behalf of his other colleague for the third accused Govinda Reddy on that day.
It is clear from a perusal of the proceedings, on the subsequent dates that either Sri S. Krishnamurthy or Sri B.T. Sundararajan conducted the defence on behalf of Govinda Reddy. It is, therefore, clear that the third accused Govinda Reddy had exercised his right to engage a lawyer of hisown choice and that the Court had no voice in the selection of the advocates concerned. In these circumstances there is no substance in the contention of the learned Counsel for the third accused Govinda Reddy that the case of the third accused Govinda Reddy had been prejudiced on account of the fact that the same Advocate was appearing for all the three accused persons up to a particular stage and had not effectively safeguarded the interests of his client.
Moreover, this is not a case in which the three accused persons were being tried for an offence of criminal conspiracy under Section 120-B I.P.C. What all has been alleged by the prosecution is that all the three accused persons had a common intention to commit burglary and if need be commit murders to facilitate the commission of burglary and had consultations with each other and in pursuance o the plan had trespassed into the premises of Belur Srinivasa Iyengar on the night of 5th June, 1956 and committed murders and robbery.
In these circumstances it cannot reasonably be urged that the interests of the accused persons were conflicting. In this connection reference may be made to the decision of the Supreme Court in Tara Singh v. The State, : [1951]2SCR729 (A). In that case Tara Singh was tried for an offence of murder and his relatives refused to assist him in securing him the services of a counsel for him and the Court did not appoint any standing counsel to defend the accused. The trial therefore proceeded with without any legal assistance for the accused.
The accused did not raise any objection through out the proceedings of the case and he was convicted. It was urged before the Supreme Court that since the Court had not secured the services of a counsel to defend the accused his case has been greatly prejudiced and consequently the trial has been vitiated and the same was liable to be set aside. Their Lordships repelled the arguments andstated thus :
'But the appellant's subsequent conduct indicates that he had no intention of engaging counsel and made no grievance of the fact. I need hardly say that the right conferred by Section 340 (1) does not extend to a right in an accused person to he provided with a lawyer by the State or by the police or by the Magistrate. That is a privilege given to him and it is his duly to ask for a lawyer if he wants to engage one and to engage one himself or get his relations to engage one for him. The only duty cast on the Magistrate is to afford him the necessary opportunity. There is no force in this contention either'.
In the instant case the learned trial Judge has been very considerate inasmuch as he gave permission to the accused to change the legal advisers whenever he desired and also gave full opportunities to the Advocates concerned who appeared for the first time to study the records and acquaint themselves with the facts of the case and for that purpose adjourned the trial of the case occasionally. The third accused Govinda Reddy cannot, therefore, have any valid objection in this matter. He cannot be heard to say that his case was prejudiced on account of the same Advocate appearing for him for some time during the trial.
Curiously enough we notice that Sri Guru, who was appearing for the third accused Govinda Reddy in the trial Court has continued to appear for him even in this Court and has not retired for him. As a matter of fact he insisted that he should have priority in arguing the case for all the appellants including Govinda Reddy. Sri Bhashyam and Sri Motaiya appeared for the third accused Govinda Reddy along with Sri Guru and not independently of him.
7. We will now pass on to the other issue which was presented to us, viz., whether Section 269 (4) Cr.P.C. violates the equality of treatment guaranteed by Article 14 of the Constitution of India.
8. It was strenuously urged by Sri Bhashyam that the new amendment to Sub-section (4) of Section 269 Cr.P.C. has conferred the right to discriminate between persons who are charged with the same offence and enables the High Court on reference made by the trial Judge to exempt the trial of a particular case from being tried with the aid of jury while another person charged with a similar offence will have the advantage of a jury trial. Here again it is necessary for us to state some facts before considering the important question of law raised by the learned Advocate.
After the accused persons were committed to take their trial, the learned Sessions Judge, who perused the records found that the trial of the case was likely to last for about a month in view of the fact that the prosecution had cited as many as 160 witnesses and the accused had taken time to file lists of their defence witnesses made a reference to this Court under Section 269 (4) Cr.P.C. for a direction that the case shall be tried by the Judge himself without a jury. The reference was registered as Criminal Referred Case No. 2 of 1956 on the file of this Court and notices of the same were issued to all the three accused persons.
Sri Guru appeared for accused 1 and 2 and did not oppose the reference. The third accused did not raise any objection. Hence this Court after perusing the records came to the conclusion that the case was not likely to be concluded within two weeks from its commencement and it involved complicated matters and it was therefore desirable that it should be tried without a jury and issued directions accordingly. It is in pursuance of the said order that the learned Sessions Judge tried the accused without the aid of a jury.
The third accused Govinda Reddy did not raise any objection about the trial proceeding without the aid of a jury at any stage of the trial. As a matter of fact no objection is taken and no such ground is raised in the course of the memorandum of appeal filed on behalf of the third accused Govinda Reddy. It is only in the supplementary memorandum of appeal filed on behalf of the third appellant Govinda Reddy by Sri Motaiya for the first time such an objection is raised.
It was urged by Sri Bhashyam, the learned Counsel for appellant Govinda Reddy, that the right of an accused person to be tried with the aid of a jury is a valuable right though not a fundamentalright and that any order passed by the court denying that valuable right to an accused person and allowing or permitting the trial without the aid of a jury materially prejudices an accused person and violates the equality of treatment guaranteed by Article 14 of the Constitution of India.
He contended that the power conferred on the High Court to make a distinction between a man whose case is likely to last over a fortnight and another man whose case is likely to be over early, who commit the same offence is discriminatory and the classification of cases on that basis viz., on thebasis of the duration of the trial or the complicated nature of the case, is highly arbitrary and is unconstitutional.
8. Section 268, Cr.P.C. lays down that all trials before a Court of Sessions shall be either by jury or by the Judge himself. The words 'by the Judge himself' were substituted by Act 26 of 1955 in the place of ''or with the aid of assessors'. Section 209, Sub-section (1) of the Code of Criminal Procedure confers a right on the State Government todirect the trial of all offences or of any particular class of offences before any Court of Session by jury in any District and also to revoke or alter such order.
Sub-section (4) of Section 269, Cr.P.C. empowers the High Court to direct the trial by the Judge himself without a jury if on account of the volume or complexity of the evidence in the case, it is of the opinion that its duration is likely to exceed two weeks from its commencement or that the case would involve consideration of evidence of a highly 'technical nature on an application made to the High Court by a party or a reference made by the Sessions Judge in that behalf. This sub-section was inserted by Act 26 of 1955 and forms part and parcel of the general law of procedure for trial of sessions cases applicable to all persons.
It was urged by the learned Counsel for the accused that the standard prescribed under Sub-S. (4) of Section 269, Cr.P.C. to enable the High Court to exercise its discretion is unguided and the classification is unreasonable and therefore it offends Article 14 of the Constitution of India which confers the right of equality or equal protection of law in the country; that the standard prescribed, viz., the speedier trial or the duration of the trial or theundesirability of the trial with the aid of Jury on account of technical nature of the evidence are not the proper standards for classification.
It is now well settled that Article 14 of the Constitution of India not only guarantees equal protection as regards substantive laws but procedural laws also come within his ambit vide State of West Bengal v. Anwar Ali Sarkar, : 1952CriLJ510 (B) and in Kathi Raning Rawat v. State of Saurashtra, : 1952CriLJ805 (C), and Meenakshi Mills, Ltd. v. Visvanatha Sastri, : [1954]26ITR713(SC) (13). We heard very able and interesting arguments of the learned Counsel on both the sides as to the scope and limitations of Article 14 of the Constitution of India.
A large body of case law has been referred to us by the learned Counsel For appellant Govinda Reddy and also by the learned Assistant Advocate-'General on behalf of the State. We feel that it isunnecessary for us to discuss elaborately the long catena of cases on this topic as in our opinion they have been hilly and exhaustively dealt with in the latest decision of the Supreme Court in Asgarali Nazarali Singaporewala v. State of Bombay, (S) : 1957CriLJ605 (E), in which Their Lordships considered the constitutionality of the Criminal Law Amendment Act of 1952.
Alter setting out the several provisions of the Criminal Law Amendment Act (1952) their Lord-snips observed that the intention of the Legislature in enacting the Criminal Law Amendment Act (1952) was to amend the Indian Penal Code and the Code of Criminal Procedure with a view to provide for a more speedy trial of offences punishable under Section 161 or Section 165 or Section 165-A of the Indian Penal Code or Sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947.
According to the provisions of the Criminal Law Amendment Act Special Judges of the Status of a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge are appointed for the purposes of trying those offences and those offences are made triable only by these special Judges. Moreover, not only are the special Judges invested with the exclusive jurisdiction to try those offences but they are also empowered while trying any case involving those offence to try any offence other than those offences with which the accused may under the Code of Criminal Procedure be charged at the same trial; Committal proceedings were also done away with and the special Judges are empowered to take cognizance of those offences without the accused being committed to them for trial and are further empowered to try the accused persons of the same by following the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrate.
It is thus clear that for all purposes the Courts of the Special Judges were deemed to be Courts of Sessions trying cases without a jury or without the aid of assessors and are empowered to pass upon the persons convicted by them of any offence any sentence authorised by law for the punishment of such offences. The powers of appeal and revision vested in the High Court are to be exercised as if the Courts of Special Judges were the Courts of Sessions trying cases without a jury or without the aid of assessors within the local limits of the jurisdiction of the High Court.
It is clear from the above that the procedure for trial before the Special Judges was thus assimilated to that obtaining in the case of trial of the accused by the Courts of Sessions. It was contended before their Lordships that the provisions of the impugned Act are violative of the fundamental right enshrined in Article 14 of the Constitution of India and were therefore, ultra vires. Repelling this contention their Lordships observed as follows :--
'The provisions of the impugned Act in substance amended the Indian Penal Code and the Code of Criminal Procedure, 1898 pro tanto making the specified offences triable by 'Special Judges and all persons who committed these offences became punishable by higher sentences and where subjected to procedure for trial of warrant cases, the Courts of Special Judges being deemed to be Courts of Sessions trying cases without a jury or without the aidof assessors. It can therefore be legitimately urged that there was no classification at all, the provisions thus enacted being equally applicable to all citizens alike without any discrimination whatever.
The matter was however argued before the High Court and also before us on the basis that the offenders who committed these specified offences formed a group or category by themselves and were classified as distinct from the offenders who committed the other offences under the Penal Code. We do not want to express any opinion as to whether there is any classification discernible within the provisions of the impugned Act but will proceed to deal with this aspect of the question on the assumption that there was such a classification intended to he made by the Legislature while enacting the impugned Act.
'The principles underlying Article 14 of the Constitution have been completely thrashed out in the several decisions of this Court earliest. The earliest pronouncement of this Court on me meaning and scope of Article 14 was made in the case of Charanjit Lal v. Union of India, : [1950]1SCR869 (F). The principles enunciated in that case were summarised by Fazl Ali J. as follows in State of Bombay v. F. N. Balsara, 1951 SCR 682 at page 70S (AIR 1951 SC 318 at page 326) (G):--
'(1) The presumption is always in favour of the constitutionality of an enactment since it must be assumed that the Legislature understands and correctly appreciates the needs of its own people that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
(2) The presumption may he rebutted in certain cases by showing that on face of the Statute there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class and yet the law hits only a particular individual or class.
(3) The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons often require separate treatment.
(4) The principle does not take away from the State the power of classifying persons for legitimate purposes.
(5) Every classification is in some degree likely to produce some inequality and mere production of inequality is not enough.
(6) If a law deals equally with members of a well-defined class it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
(7) While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained and the classification cannot be made arbitrarily and without any substantial basis.
The latest pronouncement on this topic is to be found in the judgment of this court in the case of Buhdan Choudhry v. State of Bihar : 1955CriLJ374 (H), where it was observed as follows :-- 'The provisions of Article 14 of the Constitution have come up for discussion before this Court in a number of cases namely : [1950]1SCR869 (F), 1931 SCR 682: (AIR 1951 SC 318) (G), : 1952CriLJ510 (B), : 1952CriLJ805 (C). Lachmandas Kewal-ram v. State of Bombay, : 1952CriLJ1167 (I), Qasim Razvi v. State of Hyderabad, : 1953CriLJ862 (J), and Habeeb Mohamed v. State of Hyderabad : 1953CriLJ1158 (K). It is therefore not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well established that while Article 14 forbids class legislation, it docs not forbid reasonable classification for the purposes of legislation. In order however to pass the test of permissible classification two conditions must be fulfilled,, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely geographical or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well-established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.' '
9. Their Lordships observed that the persons who committed offences of bribery or corruption would form a class by themselves quite distinct from those offenders who could be dealt with by the normal provisions contained in the Penal Code or the Cr.P.C. and if the offenders falling within (his group or category were thus singled out for special treatment, there would he no question of any discriminatory treatment being meted out to them as compared with other offenders who did Dot fall within the same group or category and who continued to be learned under the normal procedure. Dealing with the question as to whether the object of more speedy trial can be the basis of classification their Lordships observed as follows :--
'The next question to consider is whether this differentia had a rational relation to the object sought to be achieved by the impugned Act. The preamble of the Act showed that it was enacted for providing a more speedy trial of certain offences. An argument was however addressed before us based on certain observations of Mahajan J. (as he then was) at page 314 (of SCR) : (at page 86 of AIR) and Mukherjea J. (as he then was) at page 328 (of SCR) : (at page 91 of AIR), in Anwar Ali Sarkar's case (G) (supra) quoted at page 43 (of SCR) : (at page 408 of AIR), by Patanjali Sastry C.J. in the case of Kedar Nath v. State of West Bengal, : 1953CriLJ1621 (L), that the speedier trial of offences could not afford a reasonable basis for such classification. Standing by themselves these passages might lend support to thecontention urged before us by the learned Counsel for the appellant. It must be noted, however, that this ratio was not held to be conclusive by this Court in Kedar Nath Bajoria's case (L) (supra) where this Court held :-- ......'
It is clear from the above observations of their Lordships of the Supreme Court that the classification based on the general procedure prescribed for the trial of offences even though a particular group or category of persons ate singled out for special treatment for the purpose of speedy trial does not offend Article 14 of the Constitution of India and is not in any manner violative of equality of protection of law provided by the said Article.
As already stated by adding Sub-section (4) to Section 269 of the Code of Criminal Procedure the law of procedure is made applicable uniformly to all persons whose trial is likely to last for more than two weeks or whose case would involve consideration of evidence of a highly technical nature. It cannot, therefore, reasonably be urged that the speedier trial of a particular class of cases cannot be the basis for clarification. It cannot also be said that the discretionary power that is vested in the High Court is necessarily a discriminatory power. In this connection we may refer to the decision of the Supreme Court in Matajog Dobey v. H.C. Bhari, (S) : [1955]28ITR941(SC) (M), wherein it was laid down that Article 14 of the Constitution of India does not render Section 197 of the Code of Criminal Procedure which makes it necessary to obtain sanction of the Government to prosecute a public servant ultra vires as the discrimination is based on a rational classification.
It was observed that a discretionary power is not necessarily a discriminatory power and abuse of power is not to be easily assumed where the discretion is vested in the Government and not in a minor official. In s held that the need for speedier trial can be the : 1953CriLJ1621 (L), Their Lordshipoper basis for a reasonable classification having regard to the legislative history of the enactment. In Kathi Railing's case (C), it was held that conferment of power upon the executive to select individual cases would not be a contravention of Article 14 provided the Legislature lays down the policy and the standards according to which the executive is to make the selection.
It cannot reasonably be urged that Sub-section (4) of Section 269, Cr.P.C. does not indicate the policy or the standard according to which the High Court has to exercise its discretion before passing an order empowering the Sessions Judge himself to try the accused without a Jury. It is not an unguided discretion. It cannot also be said there is no substantial distinction between cases which are likely to last for over two weeks and others which arc likely to be over in a few days.
Accused whose cases are likely to last beyond two weeks can be taken to constitute a class. Such a classification cannot be declared to be void on the ground that it has no relation to the object to be attained and is not substantial. It has been held by their Lordships of the Supreme Court that if the discretion is vested in a judicial officer and is subject to the re visional and appellate powers of the High Court the, exercise of discretion cannot be said to be unguided .or arbitrary (Vide (S) : 1955CriLJ374 (II), and is not arbitrary and does not offend Article 14 of the Constitution of India.
A notification was issued by the erstwhile Government of Mysore under Section 269, Cr.P.C. on 9thMay, 1917 under the Code of Criminal Procedure which was then in force. No fresh notification has been issued by the Government of Mysore after the introduction of the Code of Criminal Procedure of 1888 and after the Criminal Procedure Code was amended by Act 26/55 declaring what offences or class of offences shall be tried with the aid of a jury.
According to the notification referred to above which we presume is in force, offences punishable under Sections 302 and 307 of the Indian Penal Code with which the accused are charged and tried are not triable with the aid of a jury. It is only the other offences punishable under Sections 457, 380, 397, 392 and 460 of the Indian Penal Code that are triable with aid of jury. Therefore, the accused cannot raise any valid objection as regards their trial in respect of the charges under Sections 302 and 307 of the Indian Penal Code.
As already stated the right to be tried with the aid of a jury is not a fundamental right. It is a right that is created by a Statute. The Statute that creates such a right, we think, can impose restrictions or conditions relating to the exercise of such a right. The Statute can also take away such a right and as a matter of fact Section 289 (1) confers such a right on the State Government. In such cases it is not open to a person to contend that his fundamental right is infringed and that he has been denied equality before the law.
We have already slated that the appellants did not oppose the reference made by the learned Sessions Judge for permission to try them himself without a jury and they also did not raise an objection during the trial. In these circumstances we hold that there is no substance in the contention raised on behalf of appellant Govinda Reddy that the trial is vitiated. Some argument was addressed to us to the effect that so long as the right to be tried with the aid of a jury is not a fundamental right and is only a privilege, the subject can waive that privilege. In the view we have taken, we feel that it is unnecessary to consider this argument.
10. It was urged by Sri Guru that the non-examination of Rangalakshmi by the prosecution was intentional and an adverse inference should be drawn against the prosecution m the circumstances of the case.. He suggested that Rangalakshmi was in the nature of an eye-witness and her evidence would have thrown considerable light in the case and therefore her non-examination was fatal. There is nothing in the entire records to indicate that Rangalakshmi was au eye-witness.
By the mere fact that she was one of the persons that was sleeping in 'Ranga Vilas' on the fateful night and had received severe injuries it cannot he presumed that she was an eyewitness. It is not unlikely that she received injuries while she was fast asleep and lost her consciousness immediately thereafter. That it may be so is clear from the fact that P.W. 79 Ratna found Rangalakshmi sitting leaning across the wall in her bed room with a number of bleeding injuries on her personin an unconscious state when she rushed to the room at about 6-30 A.M. on 6th June, 1956.
P.W. 114 Sivacharan Singh sent Rangalakshmi in an ambulance van to the Victoria Hospital for proper treatment. She was admitted as an in-patient, P.W. 96 Dr. Adikesuvalu, the Superintendent of the Victoria Hospital, Bangalore, has stated in his evidence that Rangalakshmi was in a condition of shock and collapse at the time she was admitted into the Hospital and that her condition was precarious Rangalakshmi regained consciousness only on 11th June, 1956 at about 12 noon and took her food voluntarily on 14th June, 1956.
Though she was in the Hospital she was able to realise that she was in the Hospital for the first time on 16th June 1956 at about 9 a.m. She was discharged from the Hospital on 11th July, 1956. P.W. 115 Revanna has stated in his evidence that he; could not record the statement of Rangalakshmi, while she was in the Hospital as the Doctors who were treating her informed him that she was not in a fit condition to make any relevant statement.
He has further .stated that he completed the investigation and placed the charge-sheet in the Court of the City Magistrate, Bangalore on 7th July, 1956. It is clear from this that the Investigating Officer could not examine her during the investigation of the case as she was yet undergoing treatment as an in-patient. P.W. 96 Dr. Adikesavalu has stated in his evidence that Rangalakshmi was not able to recollect any of the incidents except that some one hit her on her head and twisted her left index finger.
Dr. Adikesavalu examined the girl along with Dr. Govindaswamy, the Director of All India Institute of Mental Health on more than half a dozen occasions. He has given his opinion that she is not in a fit condition to give evidence or make relevant statement regarding the incident that took place nor is it desirable in the interest of her health and in view of the serious injury and damage to the brain she had sustained to examine her. Rangalakshmi had multiple fractures of the bones of the skull and of the mandible with severe concussion, irritation and compression of the brain as is clear from the opinion of Dr. Adikesavalu.
There is absolutely nothing on record to indicate that the opinion of Dr. Adikesavalu is not based on proper materials. Dr. Adikesavalu is the Superintendent of the Victoria Hospital, Bangalore. He is a very highly qualified surgeon. He has put in a service of 22 years as a surgeon. There is absolutely no reason to discredit his evidence. P.W. 97 Dr. Govindaswamy, who examined Rangalakshmi along with Dr. Adikesavalu on 18th June, 1956, 22nd June, 1956, 24th June, 1956, 6th July, 1956 and 23rd September, 1956 is of the view that though Rangalakshmi is quite intelligent, she will not be in a position to give sequential and reliable statements of events preceding her injury for several months to come.
Exhibit P-130 is the certificate issued by P.W. 97 Dr. Govindaswamy in this connection. He is definitely of the opinion that Rangalakshmi could not be a competent witness in the case as she is suffering From a disease technically known as Retrograde Amnesia consequent upon the seriousinjury that was caused to her brain. Nothing has been elicited in the course of the cross-examination or P.W. 96 and P.W. 97 to indicate that their opinion is not creditworthy.
It was suggested by Sri Guru that the learned trial Judge ought not to have relied solely upon the opinion of these two Experts and ought to have directed the prosecution to produce Rangalakshmi before him and should have put a few questions to ascertain whether the opinion of the two Experts was correct. The learned trial Judge did not think it necessary as sufficient material had been placed by the prosecution by examining P.W. 96 Dr. Adikesavalu and P.W. 97 Dr. Govindaswamy to establish that Rangalakshmi was not in a fit condition to depose and could not be a competent witness in this case.
The learned trial Judge was, in our opinion, perfectly justified in acting upon the evidence of these two Doctors. There is no rule that every witness ought to be called by the prosecution whether he knows anything about the case or not even if the prosecution knows that the witness is not likely to give any useful information either to help the prosecution or the accused. In Vasudeo Bal-want v. Emperor, AIR 1932 Bom 279 (N), a somewhat similar contention was raised on behalf of the appellant.
It was argued that the non-examination of His Excellency Sir Earnest Hotson, the acting Governor of Bombay and any one of the students who were admittedly present at the time of the offence was fatal to the case and an adverse inference should be drawn against the prosecution. This contention was repelled by Their Lordships of the Bombay High Court and the following observations of Beaumont C.J. give a complete answer to the contention raised by Sri Guru in this case :--
'The next point taken on behalf of the accused was that His Excellency was not called as a witness, nor were any of the students who were present at the time of the offence. The evidence is that about 200 to 250 students were in the room at the time. Mr. Patwardhan suggests that there is a rule that, at any rate in capital cases -- and he was bound of course to extend his contention to embrance cases of attempt to murder -- every eye-witness ought to be called by the prosecution and for that be relied on the case of Ram Ranjan Roy v. Emperor, ILR 42 Gal 422 :, (AIR 1915 Cal 545) (O). I do not think that there is any such rule. No doubt as pointed out by the Calcutta High Court, the duty of the prosecution is not to endeavour to obtain a conviction at any cost, but to see that the facts are fairly presented before the Court.
'But prima facie it is for the prosecution to call such witnesses as they think will establish their case. No doubt if the Public Prosecutor knows of a witness who favours the accused, it is his duty either to call the witness himself or to see that the defence is supplied with the name of the witness and given an opportunity of calling him. In the present case, undoubtedly, the evidence called by the prosecution was sufficient to establish the charge.
Mr. Patwardhan suggests that his client was prejudiced by the fact that His Excellency did notgo into the witness box. I cannot myself see in what respect His Excellency could have given any evidence which could possibly have helped the accused. I pressed Mr. Patwardhan to tell me in what respect he suggested that the evidence of His Excellency could have helped the accused, but he was unable to say more than that the accused pleader might perhaps have got something out of the witness in cross-examination which would have helped the accused, but he was unable to suggest any specific point in which the evidence of His Excellency would have been useful.
There is evidence before the Court that His Excellency was not hurt by the bullets so that it was not necessary to call him for that purpose. It was suggested that His Excellency's evidence might have been of value on the defence set up by the accused viz., that it was not he but somebody else who fired the shots. But as the evidence is that His Excellency at once flung himself upon the accused it is perfectly obviouse that he at any rate thought that the accused was the guilty party.
It seems to me that there is no substance whatever in the suggestion that the case has been in any way prejudiced by the failure of the prosecution to call any more witnesses.'
11. There are no eye-witness to the occurrence and the decision in this case has been entirely based upon the circumstantial evidence adduced by the prosecution. It has been repeatedly laid down by the Supreme Court of India and by this Court that a conviction can safely be based on circumstantial evidence provided the several circumstances relied upon by the prosecution arc established beyond doubt that the incriminating facts are such as to be incompatible with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than that of the accused's guilt.
This principle is enunciated in the decision of the. Supreme Court in Hanumant v. State of M.P., : 1953CriLJ129 (P); Kedar Nath v. State of West Bengal, : AIR1954SC660 (Q;; Kutuhal Yadev v. State of Bihar, : AIR1954SC720 (R), and in the decisions of this High Court in Chowda v. Government of Mysore, 8 Mys LJ 379 (S); Papiah v. Government of Mysore, 49 Mys HCR 444 (T); and Chikka Byre Gowda v. State of Mysore, ILR 1955 Mys 372: ((S) AIR 1955 Mys 119) (U). In Hanumant v. State of M.P. (P), their Lordships of the Supreme Court stated as follows:
'It is well to remember that in eases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to he drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must he a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must he such as to .show that within all human probability the act must have been done by the accused.'
12. In the instant case the learned Sessions Judge has based his conclusions that the appellants committed he several offences alleged against them on the following factors:
(1) That the appellants conspired together to commit burglary in the house of Belur Srinivasa Iyengar and to murder the inmates for that purpose.
(2) That about a fortnight prior to the date of the incident, appellants Krishna and Muniswamy (along with P.W. 44 Channa) made an unsuccessful attempt to burgle the house of Belur Srinivasa Iyengar for the purpose of committing theft.
(3) That on 5-6-1956 appellants Krishna and Muniswamy purchased crow-bars M. Os. 1 and 4 in the shops of P.W. 60 Dhanalakshmi and P.W. 61 Ibrahim respectively and that these articles were found in the bedroom of Vengadamma in 'Ranga Vitas' on the morning of 6-6-1956 and they were blood-stained.
(4) That the appellants were found moving together on 5-6-1950.
(5) That the finger prints of the appellants were found on the silver vessels M. Os. 86, 87 and 89 which were lying scattered in 'Ranga Vilas'' on the morning of 6-6-1956 and that those finger prints tally with (hose of A I. Krishna, A2 Muniswamy and A3 Govinda Reddy respectively.
(6) That a large number of articles of jewellery belonging to and in the possession of the members of the family of Belur Srinivasa Iyengar just prior to the commission of the offence were found in the possession of the appellants either on their person or in their houses.
(7) That blood-stained clothes were recovered from a hedge near the. house of A1 Krishna on the information furnished by him and from A3 Govinda Reddy's house.
(8) That appellant Krishna made several purchases on the 6th and 8th June 1956 and he converted some jewels into gold ingots and disposed them of and the two bills for having purchased a rot and an almirah were found on his person on the date he was arrested, that is, on 9-6-1956. The cot and the almirah which were yet in an unpacked condition were found in the house of Krishna where he was living with his concubine P.W. 38 Jayamma, that is, in the house bearing No. 21/6-86 Ramakrishna Mutt Road, Ulsoor.
(9) That the knife M.O. 3 was recovered from a well behind the house of Al Krishna on the information furnished by him and it contained mammalien blood and was identified by several witnesses as belonging to Krishna and as the one that was in his house in premises No. 21/6-86 Ramakrishna Mutt Road, Ulsoor being used by the inmates for domestic purposes.
13. The learned Sessions Judge has accepted the evidence of the several witnesses examined by the prosecution to establish each of the above factors and has come to the conclusion that the several circumstances relied upon by the prosecution had been conclusively established and they lead to the legitimate conclusion that it is the appellants that had broken into the house of Belur Srinivasa Iyengar and committed the murders of Vengadamma, Singamma, Lava, Kusha, Ramalingam and Belur Srinivasa Iyengar and attempted to commit the murder of Rangalakshmi on the night of 5-6th June 1956.
14. It is the case of the prosecution that appellant Krishna, who was originally living in Chinnayanapalaya had shifted his residence to Ulsoor and was living in the house hearing No. 21/6-86 Ramakrishna Mutt Road, Ulsoor with P.W. 38 Jayamma and her child born to him. P.W. 38 Jayamma had abandoned her husband Muniappa of Sunkalpet, Bangalore City and had come away tolive with appellant Krishna about two years prior to the date of the incident. She has stated that Krishna had kept her in a house in Jogupalayam for sometime; that they shifted to Chinnayanapalaya Extension and were living there for about six or seven months.
She further stated that appellant Krishna engaged a house of P.W. 35 Muniswamappa in Ramakrishna Mutt Road in the month of April 1956 and shifted her to the said place and that both of them were living in that house along with their child till 10-6-1956. Appellant Krishna has denied that he had anything to do with P.W. 38 Jayamma and that he had taken the house No. 21/6-86 Ramakrishna Mutt Road, Ulsoor on lease from P.W. 35 Muniswamappa for her residence. Strangely enough no questions were put to P.W. 38 Jayamma in her cross-examination to challenge her version that she abandoned her husband after developing criminal intimacy with appellant Krishna about two years prior to the date of the incident and was living with him as his wife in several places and was being protected by him.
As a matter of fact, the evidence of P.W. 38 Jayamma in this regard has remained unchallenged. P.W. 35 Muniswamappa, who is the owner of premises No. 21/6-86 Ramakrishna Mutt Road, Ulsoor has given evidence that appellant Krishna took the house from him on lease in the month of April 1953 mid was Jiving in that tenement with P. W. 38 Jayamma and a child. P.W. 43 Prabhakar, who is a tenant in one of the houses of P.W. 35 Muniswamappa, has given evidence that P.W. 38 Jayamma, appellant Krishna and their child were all living in premises No. 21/6-S6 Ramakrishna Mutt Road, Ulsoor. P.W. 42 Venkatappa alias Motappa is a washerman in Ulsoor. He has also given evidence to the effect that appellant Krishna and P.W. 38 Jayamma were living as man and wife in house bearing No. 21/6-86 Ramakrishna Mutt Road, Ulsoor and that he was washing their clothes.
There is absolutely nothing on record to indicate that these witnesses who were respectable residents of the locality and who bear no sort of ill-will against appellant Krishna are trying to implicate him by giving false evidence. P.W. 44 Channa and P.W. 41 Alamellamma have deposed that appellant Krishna was living in the house bearing No. 21/6-86, Ramakrishna Mutt Road, Ulsoor along with P.W. 38 Jayamma and a child. The fact that appellant Krishna was arrested by the police on 9-6-1956 when he was proceeding on his motor-cycle and alighted from it in Gurumurthi Lane which leads to No. 21/6-86 Ramakrishna Mutt Road, Ulsoor also establishes the version of the prosecution that he was residing in that house.
There is another significant factor which establishes beyond all reasonable doubt that appellant Krishna was living in No. 21/6-86 Ramakrishna Mutt Road, Ulsoor. Exhibits P-84 and P-85 two cash bills which evidence the purchase of an almirah and a cot were found on the person of appellant Krishna at the time he was arrested by the police on 9-6-1056. Reliable evidence has been adduced by the prosecution to establish that appellant Krishna purchased the almirah M.O. 171 for Rs. 70 as per Exhibit P-85 and the cot M.O. 170 as per Exhibit P-84 on. 8-64956. M.O. 170 and M.O. 171 were found in an impacted condition in house No. 21/6-86 Ramakrishna Mutt Road, Ulsoor on 9-6-1956 and they were seized by the police under a mahazar in the presence of the panchayetdars.
Appellant Krishna has not explained under what circumstances these two articles of furniture that hehad purchased were found in that house if he had not engaged that house and was not living in the same. Similarly M.O. 118 and M.O. 119, the ready made coat and the pant which appellant Krishna had purchased for his use in the shop of P. W. 55 Mahadevasa, the proprietor of the Modern Tailoring Hail, Chickpet. Bangalore City were recovered from the same house under a mahazar. Exhibit P-92. A photograph of appellant Krishna M.O. 117, the pass-book of the Basavangudi Co-operative Society Exhibit P-89 issued to appellant Krishna and the registration certificate of the motor-cycle Exhibit P-90 which relates to the motor-cycle M.O. 169 were also found in premises No. 21/6-86 Ramakrishna Mutt Road, Ulsoor in which P. W. 38 Jayamma was living.
There is thus overwhelming and unimpeachable evidence to show that sometime prior to the incident and on the date of incident appellant Krishna for all intents and purposes was living in the house bearing No. 21/6-86 Ramakrishna Mutt Road, Ulsoor with P. V. 38 Jayamma.
15. It is alleged that the appellants had the knowledge of the fact that there was a lot of cash & jewellery in the house of Belur Srinivasa Iyengar and had after some deliberations planned to raid the house, kill the inmates and commit theft of those jewels and cash. It is also alleged that the appellants are related to one another and were meeting often in the house of appellant Krishna in Ulsoor to discuss how they should carry out their plan. It is also alleged that appellants Krishna and Muniswamy had along with P.W. 44 Channa made an unsuccessful bid or attempt to commit burglary in the; house of Belur Srinivasa Iyengar about a fortnight prior to the date of the incident.
P.W. 38 Jayamma and P.W. 44 Channa have been examined by the prosecution to establish the fact of conspiracy. It is urged before us as it was done in the trial Court that the evidence of these two witnesses should not be accepted since they are accomplices or in the nature of accomplices, without calling for corroboration. The learned trial Judge has rejected the contention of the appellants that P.W. 38 Jayamma and P.W. 44 Channa are either accomplices or in the nature of accomplices. We are inclined to agree with the conclusion of the learned Sessions Judge. In eases where persons act in concert by virtue of a common intention and of a criminal conspiracy their activities cannot normally, in the very nature of things be brought out in evidence by direct evidence because they are done in privacy.
It is only from the members of the family or from the persons who are intimately connected with those persons or from their associates that evidence of conspiracy can be gathered. P. W. 38 Jayamma has stated in her evidence that appellant Muniswamy is the elder brother of her paramour appellant Krishna and that appellant Govinda Reddy is their uncle & they were all constantly meeting in her house in Ulsoor and used to be talking that there was a lot of money and jewellery in the home of Belur Srinivasa Iyengar and that they should kill them or 'clean' them and bring away the properties.
She has also stated that about a month prior to the date of arrest of appellant Krishna, appellant Muniswamy had brought P. W. 44 Channa to her-house, that all of them, namely, appellants Krishna and Muniswamy and P. W. 44 Channa went to an Iyengar's house in Gandhi Nagar for the purpose of committing burglary, that appellant Krishna returned to the house at about midnight and that on the next morning appellant Muniswamy and appellantKrishna were talking (hat they could not succeed in their attempt as the dogs began to bark. She has further stated that later on appellant Govinda Reddy came to the house and enquired and learnt from appellants Krishna and Muniswamy that they had to abandon their attempt to commit burglary since the dogs began to bark.
According to the version of P.W. 38 Jayamma all the three appellants had met in the house of appellant Krishna subsequently and decided that they should go on Tuesday 'night to commit burglary and she intervened and asked appellant Govinda Reddy whether it was right on his part being an elderly man to instigate the youngesters to commit such illegal acts and requested him to consider whether it would not be proper that they should eke out their livelihood by begging instead of committing such criminal acts; that appellant Krishna directed her to keep quiet and get into the kitchen and mind her business. P.W. 38 Jayamma has further stated that her husband Krishna left the house on his motorcycle at about 7-30 P.M. on the following Tuesday after performing 'pooja'.
It is on the very same night the house of Belur Srinivasa Iyengar was burgled and the inmates were killed. According to the evidence of P.W. 38 Jayamma, appellants Krishna & Muniswamy came back to her house after cockcrowing time & P.W. 41 alem elamma who was sleeping in the house on that night opened the door on being called out by appellant Krishna. P.W. 38 Jayamma has further .stated that appellants Krishna and Miniswamy kept the jewels that they had brought with them in the two trunks M.O. 107 and M.O. 108 and that appellant Krishna gave a few jewels and some cash to the hands of appellant Muniswamy.
She has also slated that there were some bloodstains on the clothes that were on the persons of appellants Krishna and Muniswamy, that appellant Krishna gave two of his clothes viz., shirt and a pant to appellant Muniswamy and both of them changed their clothes and put on separate clothes and then bundled up the blood stainedclothes and secreted them in the hedge near the compound of her house. The, version of P.W. 38 Jayamma that they came at about cockcrowing time to her house is corroborated by the evidence of P.W. 41 Alemelamma. There is absolutely nothing elicited in the cross-examination of these two witnesses to discredit them and to brand them as untrustworthy witnesses.
As a matter of fact no serious attempt has been made to challenge the. evidence of P.W. 38 Jayamma about the alleged conspiracy and about the appellants having brought valuable jewellery and cash on the night of Tuesday. That because P.W. 38 Jayamma did not inform the police or the other authorities about the conspiracy that was being hatched by the appellants, it cannot be said that her evidence is liable to be rejected. In the very nature of things it is too much to expect of P.W. 38 Jayamma to go and report the matter to the police and to implicate her lover. She had admittedly abandoned her husband and thrown her lot with appellant Krishna and was being comfortably maintained by him.
She had no grouse or grievance against him. In those circumstances it cannot be expected that she would go and report the mailer to the police and involve her own protector to ruin him and ruin herself. The evidence of P.W. 38 Jayamma about the unsuccessful bid or attempt made by appellants Krishna and Muniswamy in the company of P.W.
14 Channa about a fortnight prior to the date of the incident has been fully corroborated by the evidenceof P.W. 44 Channa. P.W. 44 Channa has stated that he was taken by appellant Muniswamy to the house of appellant Krishna in Ulsoor and that at their request had gone with them to commit burglary in the house of an 'Iyengar' in Gandhi Nagar.
According to his version they had brought a pair of crow-bars and an iron rod for the purpose of committing burglary and had trespassed into the compound of a house in Gandhi Nagar on that night and while they were moving in the compound dogs began to bark and that some person sleeping in the house woke up and switched on the light and called out as to who it was that trespassed into the house and therefore they took to their heels and came away. Nothing has been elicited in the cross-examination of P, W. 44 Channa to doubt his evidence about the incident and to brand him as an untrustworthy witness. The evidence of P.W. 38 Jayamma and P.W. 44 Channa about the unsuccessful attempt to commit burglary in the house of Belur Srinivasa Iyengar is corroborated by P. W. 79 Ratna and P. W. 80 Prasanna.
They depose that their grand-mother Singamma had told them about a fortnight prior to the date of the incident that some persons had entered their compound and that she woke up on hearing the barking of the dogs and switched on the light and called out as to who it was that entered the compound and observed some persons running away from the place. There is absolutely nothing to discredit the evidence of these witnesses. In the circumstances proved in the case, the learned Sessions Judge was, in our opinion, perfectly justified in his finding that the prosecution had proved the conspiracy of the appellants to commit burglary in the house of Belur Srinivasa Iyengar.
16. It was contended by Sri Bhashyam, learned counsel for appellant Govinda Reddy that the learned trial Judge was not justified in rejecting an application filed on behalf of appellant Govinda Reddy to resummon P.W. 38 Jayamma, P.W. 44 Channa and some other prosecution witnesses for the purpose of further cross-examination. P.W. 38 Jayamma and P.W. 44 Channa had been cross-examined by Sri M.C. Guru who was appearing for all the accused persons on the date they were examined by the prosecution at some length. Sri Sundararajan appeared for the third accused Govinda Reddy along with Sri M.C. Guru on and after 20-9-1956.
He made an application under Section 540 of the Code of Criminal Procedure for resummoning some of these prosecution witnesses that had been examined including P.W. 38 Jayamma and P.W. 44 Channa on 28-9-1956. He stated in his application that some clarification of certain matters in the evidence of P.W. 38 Jayamma, P.W. 44 Channa & other prosecution witnesses mentioned in the application was necessary and therefore they may be re-summoned for cross-examination.
The learned Sessions Judge lightly rejected the prayer on the ground that the application was vague and no materials had been placed before him In induce him to summon them for the purpose of further cross-examination and that there was no indication in the application on what material particulars and for what purpose or to elicit what information they had to be resummoned for the purpose of cross examination. Sri Sundararajan preferred a revision petition to this court against the order so passed by the learned Judge on his application to resummon the witnesses in Criminal Revision Petition Number 322 of 1956.
The said revision petition was dismissed by a Division Bench of this Court on 19-10-1956. In the course of the order this Court observed thus :
'We find that the application under Section 540 of the Code of Criminal Procedure mentions no ground other than the opinion of the learned Advocates for accused 3 that the witnesses in question should be recalled for purposes of cross examination which is necessary and essential for a just & proper decision of the case. Section 540 of the Code of Criminal Procedure, no doubt, gives very wide discretion to the Court to summon any person as a witness or to recall and re-examine any person already examined.
But it is a judicial discretion which has to be exercised on the basis of tangible and concrete material. It may be that a witness has not been cross-examined with reference to some important aspects of his evidence and that this has occurred by oversight. It is possible that having regard to the matters involved in the case the Court might exercise its discretion under Section 540 of the Code of Criminal Procedure and recall such witness for further cross-examination.
But the party who applies to the Court for the exercise of its powers under Section 540 of the Code of Criminal Procedure has to give some indication of the existing lacuna or of the circumstances which justify the exercise of discretion. This does not mean that the line of cross examination has to be disclosed. But it does appear to us to be necessary to give some objective and concrete indication of the purpose to be served so that the court might exercise its discretion with reference to such object or purpose.
Otherwise, the position would be that the Court has to exercise its powers under Section 540 of the Code of Criminal Procedure not by applying its own mind hut by accepting the bare statement of the accused that circumstances do exist justifying the examination of a witness or the recalling of a witness for further examination. That is not the way in which judicial discretion can be exercised. Indeed, it would not be the exercise of any discretion at all.
In this case, not only do we not find any indication whatever of any purpose or object in the application before the Court, we find no such indication as placed before the learned Judge in the course of argument's. Nor is arty such indication to be found in the revision petition before us. In these circumstances, we see no reason to interfere with the order of the learned Sessions Judge,'
17. Sri Bhashyam submitted that the order was perfectly legal but contended that in fairness and in the interests of justice and to give full scope to the accused persons the learned trial Judge ought to have summoned these witnesses for the purpose of cross-examination. We are unable to appreciate this argument. After the application for re-summoning these witnesses for the purpose of cross-examination was rejected the learned advocate for Govinda Reddy made an application for summoning the witnesses as defence witnesses not for the purpose of examining them as his witnesses but for the purpose of cross-examining them.
He submitted in the course of his argument before the learned trial Judge that he wanted those witnesses only for the purpose of cross-examination, that though he summoned them as defence witnesses they would yet continue to be prosecution witnesses and that he was entitled to cross-examine them. The learned trial Judge rejected the prayer, in our opinion, rightly. The order passed by the learned Sessions Judge, in our opinion, in the circumstances of the case, was perfectly justified.
18. It is thus clear that the appellants who are related to each other were meeting in the house of appellant Krishna in Ulsoor where P.W. 38 Jayamma was living with her child and were discussing the methods that they should adopt for committing, burglary in the house of Belur Srinivasa Iyengar, that appellants Krishna and Muniswamy had secured the services of P.W. 44 Channa for that purpose and had made an unsuccessful bid or attempt to commit burglary in the house of Belur Srinivasa Iyengar about a fortnight prior to the dale of the incident, that appellant Govinda Reddy had conic to enquire on the following morning as to how they fared in their a tempt to commit burglary; that on the date of the incident appellants Krishna and. Muniswamy brought a lot of jewellery and cash and deposited them in two trunks (M. Os. 107 and. 108), that the clothes that were on their persons-had become blood-stained, that they removed them and tied them up in a bundle and secreted them in the hedge in front of the house, that appellant Krishna gave two of his clothes -- a pant and a shirt -- and sonic jewels and sonic cash to appellant Muniswamy on that night; that appellant Govinda Reddy came on Thursday to the place and appellant Krishna opened the two trunks (M.Os. 107 and 108) and showed him the jewels and the cash that he had kept.
The learned trial Judge was perfectly justified in holding that the appellants had conspired together to commit theft in the house of Belur Srinivasa Iyengar. The learned trial Judge is also justified in arriving at the conclusion that appellants-Krishna and Muniswamy had secured the services, of P. W. 4-1 Channa about a fortnight prior to the date of the incident and. made an unsuccessful attempt to enter the house of Belur Srinivasa Iyengar for the purpose of committing theft.
19. The next piece of circumstantial evidence relied upon by the prosecution to implicate the appellants is the purchase of crow-bars M.Os. 1 and 4 by appellants Krishna and Muniswamy in the shops of P.W. 60 Dhanalakshmi and P.W. 61 Ibrahim Khan in the evening bazaar on the afternoon of 5-6-1956. There in unimpeachable and almost unchallenged evidence adduced by the prosecution to establish that M.O. 1, crow-bar, M.O. 2 iron rod, M.O. 5 bread cutting knife and M.O. 4 another big crow-bar were all found in the house-of Belur Srinivasa Iyengar on the morning of 6-6-1956.
M.Os. 1, 2 and 5 were lying on the bed of Vengadamma M.O. 4 was found kept leaning against the wall in the bed room. M.Os. 1 and 4 were blood-stained. The two Doctors, who conducted the post mortem examination and P.W. 14 Dr. Srinivas who examined and treated Rangalakshmi have stated in their evidence that the injuries that they observed on the persons of Vengadamma, Singamma, Lava, Kusha, Ramalingam, Belur Srinivasa Iyengar and Rangalakshmi could be caused by the use of M.Os. 1 and 4. This evidence has remained unchallenged.
P.W. 79 Ratna and P.W. 80 Prasanna have stated in their evidence that these weapons, viz., M.Os. 1 and 4 do not belong to them and were not in their house on the night of 5-6-1956 when they went to bed and that these were found lying in the bed room of their mother on the morning of 6-6-1956 and were blood-stained. It is the case of the prosecution that appellants Krishna aud Muniswamy purchased these crow-bars from the shops of P. W. 60 Dhanalakshmi and P. W. 61 Ibrahim Khan respectively, on the afternoon of 5-6-1956. P.W. 60 Dhanalakshmi and P.W. 61 Ibrahim Khan own shops in the evening bazaar in Civil Station, Bangalore.
They sell second-hand iron materials. According to the version of P.W. 61) Dhanalakshmi, appellants Krishna and Muniswamy came on a motorcycle and alighted near her ahoy, that appellant Muniswamy was standing near the motor-cycle, that appellant Krishna came to her shop and purchased M.O. 1 from her for a sum of Its. 1-8-0 on a Tuesday at about 2 p.m. She has further stated that about. 4 or 5 days later the police came to her shop with appellant .Muniswamy in custody and questioned her about M.O. 1 and that she identified M.O. 1 and appellant Muniswamy as the person that had come with another person to purchase M.O. 1 from her shop.
P.W. 60 Dhanalakshmi identified appellant Krishna in an Identification Parade that was conducted by Sri T. Venkataswamy, the Second City Magistrate of Bangalore. She also identified M.O. I that was shown to her by the Magistrate as the very crow-bar that she sold of appellant Krishna on the previous Tuesday. She has denied the suggestion hat tile police had given to her the description of appellant Krishna that he had a scar on his right check so as to enable her to identify him and it is on account of the description so furnished that she was able to identify.
The evidence of P.W. 62 Sri T. Venkataswamy, the Second City Magistrate, Bangalore makes it clear beyond doubt that P.W. 60 Dhanalakshmi identified appellant Krishna unmistakably. P.W. 61 Ibrahim Khan has given evidence that appellant Krishna came and purchased from his shop M.O. 4 for Rs. 3 and that appellant Muniswamy was standing near the motor-cycle at the time. Me has also stated that 4 or 5 days later appellant Muniswamy was brought in custody by the police and that he identified him as the person that was standing near the motor-cycle when another person purchased M.O. 4 from him.
P.W. 61 Ibrahim Khan also identified appellant Krishna in the Identification Parade conducted by P.W. 62 Sri T. Venkataswamy. There is absolutely nothing to discredit the evidence of these two witnesses. It was argued by Sri M.C. Guru that it is highly dangerous to accept the evidence of the witnesses of the type of P.W. 60 Dhanalakshmi and P.W. 61 Ibrahim Khan about the identity of common articles like M. Os. 1 and 4 and their their evidence is artificial and should be rejected. There is no force in this. contention. The following observations of Ramaswamy, J. in Public Prosecutor v. I. C. Lingiah, AIR 1954 Wad 433 (V & W), make it clear that there is no substance in such a contention ;
'The only point of criticism advanced by the learned Magistrate is that these articles arc articles of common use and bear no particular identifying marks and consequently no reliance can be placed on the testimony of these identifying witnesses. But in advancing this criticism it is forgotten that small and even nice points of difference distinguishing one thing from others of the same kind may merely by the frequent sight of them and without any special attention to them make an impression on the mind. They 'are component parts of the thing and go to make the whole of which the mind receives an impression.
In this ease the impression is the general appearance of the thing. This sort of impression is exceedingly common; a workman has it of his toolsand most people have it of their dress, jewellery and other things they are frequently seeing, handling or using. It occurs every day that by remembrance of their general appearance a carpenter mason or other workman recognises his tools; and dress, jewellery or other property is known by its owner. Undoubtedly animals and things may be identified by those familiar with them.
Observation teaches that such identification may be safely relied upon. Rut at the same time a witness would not be able to formulate his reasons for the identification since it is based upon general untranslatable impressions of the mind. I may readily recognise my vishti, my cow, my wife's addigal or my friend's handwriting in the midst of a multitude of other things in most respects like them. But if questioned I would not be able to formulate any cogent or intelligent season for the identification. It would be fatuous to discredit I such identification on the ground that reasons are not being formulated for them/'
20. As a matter of fact in the instant case, no attempt has been made to challenge the correctness of the identification of M.Os. 1 and 4 by P.W. 60 Dhanalakshmi and P.W. 61 Ibrahim Khan respectively in the course of their cross-examination. There is no substance in the contention that these witnesses arc stock or police witnesses and therefore their evidence should be rejected. There is absolutely nothing on record to discredit the evidence of these two witnesses and to hold that they are the 'stock-witnesses' and have come forward to depose against the appellants to implicate them to oblige the police. That appellants Krishna and Muniswamy purchased M.Os. 1 and 4 from the shops of P.W. 60 Dhanalakshmi and' P.W. 61 Ibrahim Khan respectively on the afternoon of 5th June, 1956 has been proved beyond doubt.
It is further established that these articles, were found lying in the bedroom of Vengadamma on the morning of 6th June, 1956 and that they were bloodstained. Appellants Krishna and Muniswamy have not offered any explanation how these weapons that they had purchased on the afternoon of 5th June, 1958 were found in the house of Belur Srinivasa Iyengar. They have denied that they purchased them from the shops of P.W. 60 Dhanalaskhmi and P.W. 61 Ibrahim Khan. In these circumstances the learned Sessions Judge was justified in coming to the conclusion that M.Os. 1 and 4 had been purchased by Appellant Krishna on the afternoon of 5th June, 1956 and that appellant Muniswamy was with him then.
21. The next piece of circumstantial evidence on which reliance is placed to prove the complicity of the appellants relates to their movements on the afternoon ant! night of 5th June, 1956 and in the early hours of 6th June, 1956. Appellants Krishna and Muniswamy were seen together in the evening bazaar by P V. 60 Dhanalakshmi and P.W. 61 Ibrahim Khan at about 2 p. m. on 5th June, 1956. As already stated, they purchased M.Os. 1 and 4 from P.W, 60 Dhanalakshmi and P.W. 61, Ibrahim Khan respectively as indicated above.
There is evidence to show that appellant Govinda Reddy was waiting for appellant Krishna at about 11 a. in, rear Sri Ramanatha Cafe inGandhi Nagar. P.W. 74 Venkatararmiah has given evidence to the effect that he is acquainted with appellant Govinda Reddy who used to come and ^it near his hotel building which was under construction, that on 5th June. 1956 at about 10-30 or 11 a.m. be requested Govinda Reddy to assist him to secure water supply by meeting the Assistant Engineer, Water Supply Division, Bangalore on his behalf, since ho had told him that he was acquainted with the officer.
He has staled further that appellant Govinda Red!y obliged him and went to the Office of the Assistant Engineer, Water Supply Division and while going instructed him (P.W. 74 Venkata-Tamiah) that his friend Krishna was likely to call at the place in search of him and that he may request him to wait for him for 15 minutes, P.W. 74 Venkataramiah knew appellant Krishna since hewas corning often on his motor-cycle in search of appellant Govinda Reddy and picking him upoccasionally on his motor-cycle.
Ac-cording to P.W. 74 Venkataramiah, appellant Krishna came to the place in search of appellant Govinda Reddy and he informed him thatGovinda Reddy had requested him to wait for him for some time near the building but appellant Krishna told him that he had some urgent business to attend and requested the witness to inform Govinda Reddy that he would be available at 3 p m. No illwillof motive is suggested to P.W. 74 Venkataramiah.
He is a respectable person of Gandhi Nagar. There is no reason whatsoever why he should falsely implicate appellants Krishna and Govinda Reddy. The evidence of P.W. 74 Venkataramiahclearly establishes that appellant Govinda Reddy was expecting Krishna at about 11 a.m. on 5th June, 1956 near Sri Ramanatha Cafe in Gandhi Nagar and that Krishna had come in search of appellant Govinda Reddy. There is evidence to establish that appellants Krishna and Govinda Reddy were found together at about 8 p. m. on the night of 5th June, 1956.
P.W. 75 Basavaraj, who owns a fuel shop in Subedar Ghatram Road, has given evidence that he knows appellant Govinda Reddy for over eight years and that on the night of 5th June, 1956 at about 8 p.m. appellants Krishna and Govinda Reddy came to his shop on a motor-cycle and that they left their motor-cycle in his shop and left the place saying that they were going to the cinema house to attend the second show. This witness has further stated that at about 4-30 a. m. on the very same night appellant Krishna came to his place climbing over the gate and woke him up for the purpose of taking the motor-cycle that he had left in his premises, that he opened the lock of the verandah and that appellant Krishna pushed the motor-cycle outside and went away.
There is also the evidence of P.W. 41 Alemelamma that appellants Krishna and Muniswamycame to premises No. 21, Ramakrishna Mutt Road, Ulsoor at about 5-30 a.m. P.W. 41 Alemelamma was sleeping with P.W. 38 Jayamma in that house. She opened the door and allowed these two people to enter the house and went away to her house. No material discrepancy has been elicited in the course of the cross-examination of these witnesses (P.W. 74 Venkataramiah, P.W. 75 Basavaraj andP.W. 41 Alemelamma, to discredit their version and to indicate that they art not speaking the truth and have been in any way obliged to the police and have come forward to give false evidence to implicate the appellants in a serious crime of murder.
The learned Sessions Judge, who had the opportunity of observing the demeanour of these witnesses, has accepted the evidence of these witnesses as creditworthy and has come to the conclusion that their evidence esablishes the fact that the appellants were seen moving together in the company of one another on the afternoon, on the night of 5th June, 1956 and on the early hours of 6th June, 1956. We do not find any grounds to differ from the conclusions arrived at by the learned Sessions Judge. The version of P.W. 41 Alemelamma that appellants Krishna and Muniswamy came to Ulsoor and woke up P.W. 41 Alemelamma at about 5-30 a.m. has been fully corroborated by P.W. 38 Jayamma.
The appellants have not offered any explanation in this regard. They have on the other hand denied that they were moving together in the company of each other. In the absence of any explanation by the appellants under what circumstances and for what purposes they were moving together in the company of each other on that day the learned trial Judge, in our opinion, was justified in coming to the conclusion that the appellants were moving together preparing themselves for committing burglary in the house of Belur Srinivasa Iyengar on the night of 5th June, 1956.
. 22. The next and the most important piece of circumstantial evidence relied upon by the prosecution to establish the complicity of the appellants in the crime is the recovery of articles of jewellery that belonged to and were in the possession of Belur Srinivasa Iyengar and the members of his family; on 5th June, 1956 subsequent to 6th June, 1956 from the person and possession of the appellants. As already stated, on the information furnished by P W. 44 Channa on the early morning of 9th June, 1956 P.W. 115 Sri B. P. Revanna, the Investigating Officer, directed V. W. 32 Basavarajiah, the Inspector of Police, Seshadripuram to take P.W. 44 Channa to Ulsoor and to arrest the person to be pointed out by him. P.W. 32 Bisavarajiah has stated in his evidence that he arrested appellant Krishna in Gurumurthy Lane on 9th June. 1956 and searched iris person in the presence of the panchayetdars and found on his person M.O. 103 (a hunch of keys with three keys in it), a sum of Rs. 1,063 (M.O. 104) and two cash bills Exhibits P-84 and P-85 and seized them under a mahazir drawn up in the presence of the panchayatdars as per Exhibit P-86. P.W. 30 Gangappa, P.W. 31 Govindaswamy and P.W 32 Basavarajiah, the Inspector of Police, speak to the fact of the search and the recovery of these article from the person of appellant Krishna. Immediately afterwards P.W. 32 Basavarajiah produced appellant Krishna before the District Superintendent of Police after he was arrested. P.W. 115 Sri Revanna has given evidence to the effect that appellant Krishna gave him information to the effect that he had kept the jewels and the currency notes in his house in Ulsoor in two trunks and that he will produce them if he is taken to his house. Exhibit P-209 is the information Mahazar that was drawn up then. P.W. 115 and P.W. 32 have given evidence to the effect that appellant Krishna led them and the panchayatdars to premises No. 21, Ramakrishna Mutt Road, Ulsoor, the house in which he was living with P.W. 33 Jayamma and brought out two trunks M. Os. 107 find 108 and opened the locks of them with the keys that were in M.O. 103 which he took from the Inspector of Police and produced M.Os. 121 to 104. Almost all these jewels have been identified by P.W. 79 Ratna, P.W. 80 Prasanna and P.W. 81 Dr. Srirangamma as belonging to the members of Belur Srinivasa Iyengar's family and that some of them were on the persons of the deceased and injured Rangalaksmi and some of them had been kept in the iron safes and almirahs kept in the storeroom of 'Ranga Vilas'.
The evidence of the witnesses who speak to the fact of the information as per Exhibit P-209 being furnished by appellant Krishna and about his taking the Police Officers and the panchayatdars to house No. 21, Ramakrishna Mutt Read, Ulsoor, producing M.Os. 107 and 108 and opening their locks with keys that had been seized from him earlier and producing M.Os. 121 to 164 has not at all been challenged in the course of their cross examination. No questions are put to any of the witnesses to challenge their version about any of these things..
Similarly no Questions are put to P.W. 79 Ratna, P.W. 80 Prasanna and P.W. 81 Dr. Sri-rangamma to demonstrate that their evidence that the several article of jewellery belonged to the in-mates of the house of Belur Srinivasa Iyengar and were either on their persons or had been kept in the several receptacles in ''Ranga Vilas' on the night of 5th June, 1956 is false. Therefore, the only conclusion that could legitimately be drawn from these circumstances is that appellant Krishna was in possession of these articles of jewellery which belonged to the members of Belur Srinivasa Iyengar's family immediately after 'Ranga Vilas' bad been burgled.
Sri Guru, while admitting that the evidence of these witnesses has remained unchallenged, contended that the information alleged to have been furnished by appellant Krishna which led to the discovery of these articles being in the nature of self-incriminating evidence obtained by the police from a person accused of an offence is hit by Article 20(3) of the Constitution of India and therefore no adverse inference should be drawn against him. In other words, his contention is that Section 27 of the Evidence Act is hit by Article 20(3) of the Constartution of India and is ultra vires of the Constitution and therefore any discovery alleged to have been made by the Investigating Officer in consequence of any information furnished by the appellant which incriminates him cannot at all be used against him.
At one stage, the learned counsel went to the extent of suggesting that even the examination of (lie accused person under Section 342 of the Code ofCriminal Procedure which is obligatory under the Code of Criminal Procedure is ultra vires of the Constitution and is hit by Article 20(3) of the Constitution of India. He also contended that any question put or any direction given to an accused per-son to plead to a charge is also in the nature ofa command to him to make a statement and if an accused person pleaded 'guilty' to a charge in response to such a direction he cannot be convicted on such a plea since the same is hit by Article 20(3) of the Constitution of India.
We may at once stale that there is no sub-stance in this contention. In Banwari Lal v. State, (S) AIR 1956 All 385, (X), their Lordships of the Allahabad High Court rejected such an argument and held following the decision of same Court in Banwari Lal v. The State, (S) : AIR1956All341 (Y), that the provisions of Section 342 of the. Code of Criminal Procedure are not ultra vires of the Constitution of India and do not in any way infringe the guarantee of Article 20(3) of the Constitution of India.
In Ranjit Singh v. State, (Z), it was held that the examination of the accused under Section 342 of the Code of Criminal Procedure does not offend the provisions of Article 20(3) of the Constitution of India and is not, therefore, ultra vires. It has been held by the Supreme Court and the several High Courts in India that the information furnished by an accused person after his arrest to the Investigating Officer which leads to the discovery of articles under Section 27 of the Evidence Act is admissible in evidence and does not in any way offend Article 20(3) of the Constitution of India In Pershadi v. U.P. State, (S) : 1957CriLJ328 (Z1). Their Lordships of the Supreme Court held that where in a murder charge the accused had stated to the police officer that he would give the clothes of the deceased which he had placed in a pit and thereafter he in the presence of the witnesses dug out the pit and took out the clothes which were identified as the clothes belonging to the deceased, the statement of the appellant was held to be admissible relying upon a decision of the Privy Council in Pulu Kuri Kottayya v. Emperor AIR 1947 PC 67 (Z2.). In Balbir Singh v. State of Punjab, (S) : 1957CriLJ481 (Z3), a statement made by an accused person who was under arrest to the Investigating Officer to the effect that he had buried the gold ear rings near a 'pipal' tree which was proved to be true on the accused taking the police officer and the panchas to the place and pointing out the place where they had been hidden was held to be admissible under Section 27 of the Evidence Act. Reference also may be made to a decision of the Rajasthan High Court in Jethya v. The State, AIR I95S Raj 147 (Z4), wherein it is held that Article 20(3) of the Constitution of India does not contemplate the suppression of truth simply because the information is given by the accused. The guarantee under Article 20(3) of the Constitution of India only protects him against being compelled to be a witness against himself, There is no basis for the assumption that information given by the accused under Section 27 of the Evidence Act is compelled testimony. We therefore unhesitatingly hold that Section 27 of the Evidence Act is not repugnant to Article 20(3) of the Constitution of India and does not stand abrogated by Article 13 of the Constitution of India. In the Rajas than case referred to above their Lordships observed as follows :
'It may be remarked in this connection that although this matter did not come for consideration before their Lordships in the manner it has been agitated here, evidence about discovery of a fact at the instance of the accused was taken into consideration by their Lordships of the Supreme Court in the case of 'Nisa Stree v. State of Orissa, : AIR1954SC279 (Z5).'
The several authorities cited above make it abundantly clear that the contention of Sri M.C. Guru that the information 'furnished by the accused which led to the discovery of the several articles of jewellery which belonged to the several murdered persons is inadmissible in evidence and is hit by Article 20(3) of the Constitution of India since it incriminates the accused is untenable. Appellant Krishna has not offered any explanation how he came to be in possession of these large number of articles of jewellery which were either on the persons of the murdered or had been deposited 01 safety in the several receptacles in the house of Belur Srinivasa Iyengar on the night of 5th June, 1950. It was contended by Sri Guru, the learned counsel for the appellants, that even if it is held that the information furnished by the accused which led to the discovery of these articles of jewellery is not hit by Article 20(3) of the Constitution of' India and can be made use of against him, it could only be said that the appellant had the knowledge of the fact that these articles of jewellery had been kept in M.O. 107 and M.O. 108 in premises No. 21, Ramakrishna Mutt Road, Ulsoor which was not in his exclusive possession but was also in the possession of P.W. 38 Jayamma as well and therefore no inference that he was in possession of these articles of jewellery can be drawn against him. In (S) AIR 1957 SC 210 (23), their Lordships of the Supreme Court repelled such an argument in the following words :
'The appellant, however, made a statement to the Sub-Inspector of Police to the effect that he had buried the gold ear-rings near a 'pipal' tree and the ear-rings were recovered from the place pointed but by the appellant. The learned Sessions Judge drew a distinction between possession and knowledge and held that the appellant merely knew where the ear-rings had been concealed but he did not possess them. This distinction drawn by the learned Sessions Judge was not justified on the evidence in the record and the statement of the appellant that he had buried the gold ear-rings was admissible in evidence under Section 27 of the Evidence Act. In our view....... the recovery of the gold earrings was a circumstance which connected the appellant with the crime.'
It was also urged by Sri Guru that it had not been proved by the prosecution that these articles of Jewellery were on the bodies of the deceased persons by clear evidence and that in the absence of such evidence it cannot be held that any of the appellants had murdered the deceased poisons and removed these jewels. In Balbir Singh v. State of Punjab (Z3), referred to above similar argument was advanced on behalf of the accused person.
Such an argument had found favour with the trial Judge and it is on the ground that the mere fact that the accused person who gave information had knowledge of the fact that the jewels had been deposited in a particular place could not be presumed to have been in possession of them andthat the prosecution had not adduced evidence to prove that they were actually on the person of the deceased woman, the learned trial Judge had acquitted the accused. Their Lordships of the Supreme Court characterised the reasoning adopted by the learned trial Judge as 'fantastic' and observed as follows ;
'The learned Sessions Judge gave a fantastic reason for not accepting the evidence as to the recovery of the ornaments against the appellant. He said that us there was no evidence that the woman was wearing the ornaments at the time wh-2n the crime was committed, the evidence of '.heir recovery die! not show that the appellant was in any way connected with the crime. The reason, as we have said, is fantastic. The woman was dead; obviously she could not give evidence to show that she was wearing the ornaments at the time when she was killed. The husband gave evidence to the effect that before he left Kartarpur, he had seen the gold ear-rings being worn by his wife three or four days prior to his departure of Kartarpur, The prosecution examined the goldsmith who had prepared the ornaments. It is difficult to understand what better evidence the prosecution could give.' Their Lordships ultimately held that the fact of recovery of some ornaments that were on the person of the deceased on the information furnished by the accused from the place pointed out by him read with the evidence of her husband that these jewels were normally worn by the deceased woman was sufficient to prove the guilt of the accused and convicted the accused. In the instant case the articles of jewellery that were recovered on the information furnished by appellant Krishna had been kept in two trunks M.O. 107 and M.O. 108 which had been locked and the locks were opened by appellant Krishna with the koys that were in M.O. 103 the key bunch that was .seized from his possession at the time of his arrest, have all been identified, as already stated, by P.W. 79 Ratna, P.W. 80 Prasanna .and P.W. 81 Dr. Srirangamma. There is absolutely nothing on record to discredit their version about the identity of the jewels. Moreover, some of the merchants from whom some of these jewels had been puchased by the deceased persons have been examined in the case and they have identified them. The evidence of these merchants has not been shown to be uncreditworthy.
23. There are some jewels among those that were recovered from the two trunks produced by appellant Krishna which bear on them special identifying marks which conclusively establish that they belonged to the members of the family of Belur Srinivasa Iyengar. M.O. 121 is a gold cup bearing the inscription 'gratefully Siddabasappa and Brothers 21-11-1926' on it. Such gold cups are not commonly used by people. Appellant Krishna has not claimed M.O. 121 as belonging to him. As already stated he has not offered any explanation how he came to be in possession of this article.
P. W. 90 Siddabasappa has stated in his evidence that Belur Srinivasa Iyengar was his legal adviser for about 30 to 40 years and that he had conducted a good number of his cases successfully and therefore in recognition of his services and as a token of gratitude he presented a gold cup tohim on 21st November, 1920. He has identified M.O. 121 as the very gold cup he presented to Belur Srinivasa Iyengar. There is absolutely no reason to disbelieve the evidence of this witness.
P.W. 106 Sri K.R. Parthasarathy, an Advocate of this Court, who has married Sharadamma, the eldest daughter of Belur Srinivasa Iyengar, has given evidence to the effect that he had seen M.O. 121 in the house of Belur Srinivasa Iyengar when he was Jiving with him in the year 1934 and that he had occasions to handle it when his mother-in-law was alive. P.W. 79 Ratna, P.W. 80 Prasanna and P.W. 81 Dr. Srirangamma have all stated that M.O. 121, the gold cup, had been kept by Belur Srinivasa Iyengar in the non-safe kept in the storeroom of 'Ranga Vilas'.
P. W. 79 Ratna had given the description of this article- in the list furnished by her to P.W. 114 Sivacharan Singh on the morning of 6th June, 1956. The evidence of these witnesses, therefore, establishes beyond doubt that M.O. 121 belonged to Belur Srinivasa Iyengar and that it had been kept by him in the iron-safe kept in the store-room of 'Ranga Vlas' and was in it on the night of 5th June, 1956. M.O. 122 is a gold wrist watch with the initials 'B.S.V.' on it. The initials 'B.S.V.' arc worked into the wristlet with red stones and they stand for 'Belur Srinivasa Iyengar Vengadamma.'
There is evidence that the wrist watch and this wristlet belonged to Vengadamma and that she had it made to order in the shop of P.W. 101 Sri-nivasaiah. P.W. 81 Dr. Srirangamma, P.W. 80 Prasanna and P.W. 79 Ratna .speak to the fact that this jewellery which bears the initials worked into the wristlet was being used by deceased Vengadamma. M.O. 139 is a ring with the name of P.W. 81 inscribed on it as 'Srirangamma, M.B.B.S.' P.W. 81 Dr. Srirangamma has given evidence to the effect that she had presented this ring to B. S. Sam path, the deceased son of Vengadamma and that he was wearing it prior to hisdeath which occurred about two years ago.
P.W. 80 Prasanna and P.W. 79 Ratna also speak to this fact that M.O. 139 was being worn by their deceased brother B.S. Sampath while he was alive, These articles which bear special identifying marks were in 'Ranga Vilas' which was burgled on the night of 5th June, 1956 and they have been traced to the possession of appellant Krishna inasmuch as they were recovered on the information furnished by him after his arrest from M.Os. 107 and 108. In the absence of any satisfactory explanation by appellant Krishna, the learned trial Judge, in our opinion, was perfectly justified in coming to the conclusion that appellant Krishna had come to possess them after committing robbery in the house of Belur Srinivasa Iyengar on the night of 5th June, 1956.
Similarly the other jewels M.Os. 123 to 164 (except M.O. 139) have all been identified by P.W. 79 Ratna, P.W. 80 Prasanna and P.W. 81 Dr. Srirangamma. The learned trial Judge, who had the opportunity to see the demeanour of these witnesses has accepted their evidence as trustworthy. There is absolutely nothing elicited in the course of their cross-examination to doubt their veracity and therefore we have no hesitation in accepting their evidence about the identity of these jewels.
These articles have all been traced to the possession of appellant Krishna shortly after the house of Belur Srinivasa Iyengar was burgled, i.e., within four days. In the circumstances of the case we can safely draw the presumption under Section 114(a) of the Evidence Act that appellant Krishna hail come by these articles after committing burglary.
24. There is credible evidence adduced in the case to establish that immediately after his arrest, appellant Krishna furnished information to P.W. 115 Revanna that he had kept a bundle of blood stained clothes in the hedge which formed the compound of the house in which he was living and that he would produce them if he was taken to the place. This information was reduced into writing and appellant Krishna was taken to the place. He brought out a bundle of clothes from the hedge adjoining the compound wall and produced diem before P. W. 115 Revanna and the pauchayatdars P.Ws. 34 Shamanna, P.W. 35 Muniswamappa and P. W. 39 Sidde Gowda. There were four clothes in it and they arc M. Os. 109 to 112 and all of them were stained with blood. P.W. 38 Jayamma has identified these clothes as the clothes that appellants Krishna and Muniswamy were wearing on the night of 5/6th June, 1956 when they came back after committing burglary in the house of Belur Srinivasa Iyengar, which they removed since they had blood stains on them. P. W. 42 Venkatappa alias Motappa, the dhobi of appellant Krishna, has identified two of these clothes (M. Os. 110 and 111) as belonging to the appellant Krishna on the basis of the dhobi mark ' (SIC) ' which he had put on them. There is nothing to disbelieve the evidence of these witnesses. The other two blood stained clothes M. Os. 109 and 112 have been identified as the clothes belonging to appellant Muniswamy and as those that he got stitched at Bellary when he had gone to the place in the company of P.W. 44 Channa. P. Ws. 65 to 68 have testified to this fact and nothing has been elicited in their cross-examination to discredit their evidence. These four clothes which bore blood stains on them had been sent to the Chemical Examiner and the Serologist for examination and report. The certificates issued by the Chemical Examiner and the Serologist indicate that there was human blood of 'O' group on all these clothes. Appellant Krishna has not explained how his clothes had become blood stained. He denied that he had kept these clothes in the hedge or produced them before P.W. 115 and in the presence of the panchayatdars and that they wore recovered under the mahazar Exhibit P-93. The overwhelming and unchallenged evidence of the several witnesses who speak to the fact of the production and recovery of M.O. 109 to M. O. 112 by appellant Krishna on 9th June, 1956 From out of the hedge in front of the house No. 21, Ramakrishna Mutt Road, Ulsoor, cannot be brushed aside. The recovery of these blood-stained clothes on the information furnished by appellant Krishna from out of the hedge in front of the residence of appellant Krishna clearly establishes his complicity in the crime and corroborates the evidence given by P.W. 38 Jayamma that appellants Krishna and Muniswamy had come back from the house of Belur Srinivasa Iyengar on the night of 5-6th June, 1956 with these clothes on their persons and that since they were blood stained theyremoved them and after bundling them up deposited them in the hedge in front of the house. It is significant to note that the two clothes (M.Os. 172 and 173) that were recovered from the person of appellant Munis warn y immediately after his arrest on 9th June, 1956 bore the dhobi mark ' A; They were identified by P, W. 42 Venkatappa alias Motappa as the clothes belonging to appellant Krishna on the basis of the marks that he had put at the lime they had been given to him for washing. It is therefore, abundantly clear that these clothes M.Os. 109 to 112 belonged to appellants Krishna and Muniswamy and that they had become blood stained and had been deposited by them in the hedge in front of the residence of appellant Krishna in the early hours of 6th June, 1956. There is no force in the contention of the learned counsel for the appellants that since the place where these clothes had been deposited was open to the public and was easily accessible to every one no importance should be attached to the fact of recovery. According to the evidence adduced by the prosecution that bundle of clothes had been kept inside the hedge and was not visible till the bundle vas brought out by appellant Krishna and produced it before the Panchas.
25. There is another piece of circumstantial evidence which implicates appellant Krishna find that is the recovery of M.O. 3, a knife, from the well behind his house on the information furnished by him. The Investigating Officer has given evidence that on 13th June, 1956 appellant Krishna furnished him information as per Exhibit P-211 that he had thrown a knife into the well which is just behind his house and that he would show it and therefore ho deputed P.W. 59 Madonna, the Inspector of Police 'F' Division to search and recover the knife from the well. P.W. 59 Muddanna went to the place with appellant Krishna and it was found that the well was not being used and that there was 20 feet of water in the well. An attempt was made to bale out water from the well on the very same day but it could not be completed. Hence on the following day P.W. 53 Muddanna was able to bale cat water with the assistance of Mysore Armed Reserve Police and Military authorities. P.W. 64 Murugan was made to get into the well and after search he brought out M.O. 3. Its blade was opened and shown to the Panchayetdars by P.W. 59 Muddanna and a mahazar was drawn up for the recovery of the same. It was sealed and packed under a mahazar Exhibit P-95(a). This knife was identified by P.W. 38 Jayamma as belonging to her and as the one that was in the house for cutting vegetables. She has stated that appellant Krishna carried it with him on the day he proceeded on his motor-cycle to raid the house of Belur Srinivasa Iyengar, P.W. 43 Prabhakar, an employee of the H.A.L. who is residing in the house adjoining premises No. 21, Ramakrishna Mutt Road. Ulsoor, has also identified M.O. 3 as the knife that was being used by appellant Krishna. The Chemical Examiner, who examined M.O. & has found mammalian blood on it. Since the knife had been thrown into the water and was in it for over a week before it was- recovered the Serologist was not able to ascertain as to whether it was strained with human blood or not as the blood on it had been disintegrated. This knifewas also identified by P.W. 44 Channa as the one that appellant Krishna had brought with him on the occasion when they had gone to commit theft in the house of Belur Srinivasa Iyengar. No material discrepancy or circumstance has been elicited in the course of the cross-examination of any of these witnesses to discredit them and to induce us to hold that their evidence is not creditworthy. The learned trial Judge, who had opportunities to watch the demeanour of these witness, has accepted the evidence of these witnesses as creditworthy and has found that it is appellant Krishna that is the owner of M.O. 3 and that he had thrown the same into the well behind his house.
26. This is another strong circumstance which establishes the complicity of appellant Krishna in the crime. Some evidence has been adduced by the prosecution to prove that appellant Krishna had sot melted 2 or 3 rope pattern gold chains 3 or 3 days after the incident in the house of Belur Srinivasa Iyengar. An ingot has been recovered by the investigating officer during the course of the investigation of the shop of P, W. 49 Munirathnam. P.W. 46 Bapu Rao has given evidence that on 8th June, 1950 appellant Krishna had brought three gold chains one of two rows and two of single row which could be used round the neck or round the waist for being melted and purified on 8th June, 1956. P.W. 45 Bapu Jothi Jadev has given evidence that he weighed the three chains, that they weighed 13 tolas and 5 annas and that they were melted and an ingot of 11 tolas 7 annas was got out of them. According to this witness, appellant Krishna gave his name as Narasappa and the same was entered in the book Exhibit P-97 as per Exhibit P-97(a) and that a sum Rs. 6 being the charges for melting the chains was paid by appellant Krishna.
These two witnesses have identified appellant Krishna as the person that had given the gold chains for the purpose of melting and gave out his name as Narasappa as entered in Exhibit P-97 (a). P.W. 51 Panduranga, a Vyasa student, has given evidence to the effect that on 8th June, 1956 appellant Krishna (with whom he was acquainted,) met him in Ibrahim Saheb Street in Civil Station and offered to sell an ingot of gold to him and that he took him to his shop and purchased the ingot at the rate of Rs. 100 per tolas and that the ingot weighed 11 tolas 6 3/4 annas and quarter grain and that he purchased it for a sum of Rs. 1,143,
P.W. 51 Panduranga has stated that he sold this ingot to P.W. 49 Munirathnani Reddy from whoso shop the same was recovered. No reasons are assigned why the evidence of these witnesses should be rejected. Nothing has been elicited in the cross-examination of these witnesses to discredit their version It is the case' of the prosecution that the two chains of single row which were melted were being used by P.W. 79 Ratna and P.W. SO Prasanna as neck chains on occasions and that the other rope pattern double row chain belonged to Singamma.
It is thus clear that appellant Krishna got melted three gold chains on 6th June, 1956, that is, three days after the burglary in the house of Belur Srinivasa Iyengar. He has not offered any explanation how he came by those three chains. Inthe absence of satisfactory explanation the only conclusion that could be reached is that he had committed theft of those jewels from the house of Belur Srinivasa Iyengar and had melted and converted them into cash. Large sums of money were found in the possession of appellant Krishna on the date he was arrested.
A sum of Rs. 1,065 was found on his Person at the time he was arrested. Two large sums of money (Rs. 3,800 and another sum of Rs. 100 odd) were found in the two trunks M.O. 107 and M.O. 108 along with the jewels which have been satisfactorily established as the jewels stolen from the house of Belur Srinivasa Iyengar. Appellant Krishna has not claimed these sums of money as his own. He has denied that they were seized from him or on the information furnished by him from the two trunks M.Os. 107 and 108 as alleged by the prosecution.
He has offered no explanation how these large gums were earned by him. The only conclusion that could be drawn in the circumstances proved in the case is that these large sums of money that appellant Krishna possessed on the date of his arrest were the fruits of burglary committed in the house of Belur Srinivasa Iyengar. There is evidence that appellant Krishna made some purchases on 6th June, 1956 and 8th June, 1956.
He had purchased from P.W. 55 Mahadevasa a ready made woollen suit M.Os. 118 and 119 for a sum of Rs. 110--on 6th June, 1956; an almirah for a sum of Rs. 70--under a receipt Exhibit P-85 from P.W. 52 Abdul Rahoof and P.W. 53 Abdul Hafeez and a cot M.O. 170 for a sum of Rs. 83 --under a bill Exhibit P-84 from P.W. 50 Nasarulla Sheriff on 8th June, 1956. All these articles were found in No. 21, Ramkrishna Mutt Road, Ulsoor when it was searched on 9th, June, 1956. The above circumstances show that appellant Krishna had become suddenly rich after 6th June, 1956 and had made these purchases. He has denied everything and has not chosen to offer any explanation about any of these transactions and things.
27. It is clear from the above review of the evidence that the articles of jewellery belonging to the inmates of the house of Belur Srinivasa Iyengar, which were either on the persons of the deceased or had been kept in the several boxes in 'Ranga Vilas' on 5th June, 1956 were found in the possession of appellant Krishna on 9th June, 1956 and were recovered on the information furnished by him; that clothes belonging to him had become blood-stained and had been bundled and secreted in the hedge in front of the house in which appellant Krishna was living with P.W. 38 Jayamma; that a knife M.O. 3 belonging to appellant Krishna was traced on the information furnished by him in a well behind his house and it had mammalian blood or: it, that appellant Krishna had converted some gold jewels into an ingot and sold it for cash; that he had made some purchases on 6th June, 1956 and 8th June, 1956 and that he had in his possession large sums of money.
None of these incriminating things have been satisfactorily explained by him. In the absence of any explanation, the conclusion that could reasonably be reached is that appellant Krishna was one of those that broke into the house of Belur SrinivasaIyengar on the night of 5/6th June, 1956 and committed not only the theft of the jewels and cash in the possession of the members of the family but also murdered the several inmates of the house.
28. Appellant Muniswamy was arrested on the evening of 9th June, 1956 by P.W. 59 Muddanna near an arrack shop in Shivaji Road. His person was searched by P.W. 59 Muddanna in the presence of the panchayatdars. A gold chain M.O. 176 and currency notes amounting to Rs. 158--(M.O. 177) in the right side knicker pocket and a key (M.O. 178) in the right side shirt pocket were found when his person was searched immediately after he was arrested. These articles were seized under the mahazar drawn up in the presence of the panchayatdars as per Exhibit P-106.
P.W. 59 Muddanna has stated that appellant Muniswamy gave him infomation to the effect that he had kept some jewels in his house in Chinnayanapalaya which he had locked and took him and the panchayetdars to Chinnayanapalaya; opened the house with M.O. 178 and produced from inside an oven, a paper packet which contained a gold chain M.O. 179, a jadehuvvu M.O. 180 and a ring M. O. 181 on which the letters 'B.S.S,' were found engraved. These articles of jewellery were seized under the mahazar Exhibit P-106(b) by P.W. 59 Muddanna in the presence of the panchayetdars.
These articles of jewellery have all been identified by P.W. 79 Ratra P.W. 80 Prasanna and P.W. 81 Dr. Srirangamma as belonging to the members of the family of Belur Srinivasa Iyengar. They have further stated that the letters 'B.S.S.' engraved on M.O. 181 arc the initials of B.S. Sampath, the deceased son of Belur Srinivasa Iyengar, who was wearing it on his finger while he was alive and after his death the same had been kept in the iron safe. Except denying that he produced these articles of jewellery and that M.O. 176 was found on his person at the time of his arrest, appellant Muniswamy has net offered any explanation how or under what circumstances he came to be in possession of these jewels.
There are no valid reasons to disbelieve the evidence of P.W. 79 Ratna, P.W. 80 Prasanna and P.W. 81 Dr. Srirangamma about the identity of these jewels. As a matter of fact, no serious attempt has been made to discredit their testimony in this regard. It can, therefore, safely be taken as established that these four items of jewellery which were traced to the possession of appellant Muniswamy did belong to the members of the family of Belur Srinivasa Iyengar and were recovered from out of his possession on 9th June, 1950, that is, about four days after the burglary in the house of Belur Srinivasa Iyengar.
It is in evidence that appellant Muniswamy was wearing M.Os. 172 and 173 at the time he was arrested by P.W. 59 Muddanna. These two clothes--a pant and a shirt--have been identified by P.W. 38 Jayamma and P.W. 42 Venkatappa alias Motappa (the dhobi) as the clothes that belonged to appellant Krishna. There are the dhobi marks '(sic)' on these two clothes. P.W. 38 Jayamma has stated in her evidence that appellant Krishna gave two of his clothes, viz., a shirt and a pant, to appellant Muniswamy in theearly hours of 6th June, 1956 to change the blood stained clothes that were on his person
This evidence of P.W. 38 Jayamma has been fully corroborated by the circumstances that M.O. 172 and 173 were found on the person of appellant Muniswamy at the time of his arrest. The unexplained possession of the four articles of jewellery which were found with or in the possession of deceased persons by appellant Muniswamy shortly after the commission of the, burglary in the house of Belur Srinivasa Iyengar leads to the inevitable conclusion that appellant Muniswamy is one of the persons that had participated in breaking into the house of Belur Srinivasa Iyengar on the night of 5/6th June, 1956.
29. As regards appellant Govinda Reddy, it is in evidence that he was not found in his house on 9th June, 1956. His house in Gandhi Nagar was searched on 10th June, 1956 by P.W. 114 Sivacharan Singh (Inspector of Police) in the presence of the panchayetdars--P.W. 26 Radhakrishna, P.W. 27 Seshan and P.W. 28 Venkataramiah Setty. A blood-stained pauche M.O. 101 was found on an almirah in the bed-room of appellant Govinda Reddy. It was seized under the mahazar Exhibit P-82. This panche was sent to the Chemical Examiner and then on to the Serologist for purposes of examination.
The certificates issued by the Chemical Examiner and the Serologist indicate that there was human blood on it. It is in evidence that the dhobi mark that was found on M.O. 101 tallied with the dhobi marks found on the clothes that were on the person of appellant Govinda Reddy at the time he was arrested. Appellant Govinda Reddy has not disputed the fact that M.O. 101 belonged to him. On the other hand, he states that the panche M.O. 101 that was seized belonged to him and the same was being used by his wife as a bed-cover and the blood stains found on it are due to the discharge of blood after child birth from her private parts.
The learned trial Judge for very good reasons rejected this explanation of appellant Govinda Reddy and found the version of the prosecution that M.O. 101 had been kept on an almirah at the time it was seized by P.W. 114 Inspector of Police Sivacharan Singh as spoken to by the several respectable witnesses to he true. This conclusion is, in our opinion, justified in the circumstances of the case and the evidence on record. P.W. 115 Sri Revanna, the District Superintendent of Police, had directed P.W. 70 Huchuraya on 9th June, 1956 to trace and arrest appellant Govinda Reddy.
Accordingly Huchuraya made attempts to trace him on that day. Appellant Govinda Reddy was not found in his house. P.W. 115 Sri Revanna issued a written order as per Exhibit P-116 to P.W. 70 Huchuraya to make efforts to trace appellant Govinda Reddy and arrest and produce him before him. P.W. 70 has stated in his evidence that he was making attempts to trace appellant Govinda Reddy and that he had set men for that purpose and that while he was going round in the city in search of Govinda Reddy on 10th June, 1956 he got information from one of his informants that appellant Govinda Reddy was coming in a lane towards the taxi stand (sic)ear the City Market atabout 4-15 p.m. and therefore proceeded to the place at once,
P.W. 70 has stated that the informant pointed out appellant Govinda Reddy as he was approaching the taxi stand and he proceeded fast and caught hold of the person and disclosed to him that he was an Inspector of Police and that he had put him under arrest in connection with the murders in the house of Belur Srinivasa Iyengar. P.W. 70, Huchuraya was in 'mufti' and many of his men who were with him were also in 'maftis' at the time appellant Govinda Reddy was arrested.
According to the evidence of P.W. 70 Huchuraya a good number of persons collected at the taxi stand in front of the City Market immediately after he caught hoid of appellant Govinda Reddy, that he got himself searched by P.W. 71 Ahdul Sattar and then searched appellant Govinda Reddy. He has stated that nothing was found in the pockets of the coat and shirt of appellant Govinda Reddy hut something was found in the knicker pocket and therefore he asked him (Govinda Reddy) to remove his dhoti. P.W. 70 put his hand into the right side pocket of appellant Govinda Reddy's knicker and found a paper packet in it and cook out and opened it in the presence of the panchayetdars.
P.W. 70 and the panchayetdars found in the paper packet a pair of pearl bangles, a pair of gold bangles set with red stones and a necklace set with red stones, viz., M.Os. 183, 184 and 185. These articles were seized under a manaww drawn up at the place after getting them weighed and valued by P.W. 73 Muniswami Setti as per Exhibit P-117. These articles of jewellery have been identified by P.W. 79 Ratna, P.W. 80 Prasanna and P.W. 81 Dr. Srirangamma as belonging to the members of the family of Belur Srinivasa Iyengar, when they were shown to them by the police in the Kengeri Gate Police Station.
P.W. 79 Ratna has deposed that her mother Vengadamma was wearing M.O. 184--gold bangles set with red stones, that her elder sister Rangalakshmi was wearing M.O. 183--the pearl bangles & M.O. 185--the necklace with red stones on the night of the incident. P.W. 80 Prasanna has fully corroborated this version. P.W. 81 Dr. Srirangamma has given evidence to the effect that she got M.O. 180--the pair of pearl bangles made at Thirthahalli and presented them to Rangalakshmi; that she purchased the necklace M.O. 185 in the shop of Messrs. P. Krishna Rao and S.L. Mannaji Rao and presented it also to Rangalakshmi.
She has identified M.O. 184 as the pair of bangles that were being worn by her sister Vengadamma. P.W. 82 Yesu Das, the driver of Belur Srinivasa Iyengar has also identified these jewels as those that were on the persons of Rangalakshmi and Vengadamma on 4th June, 1956 when he drove them in the car to Malleswaram. There is no reason to discredit these witnesses. The arrest and search of appellant Govinda Reddy by P W. 70 was attacked by the learned counsel for appellant Govinda Reddy on several grounds. He contended that the arrest appeared to be somewhat dramatic.
It was urged that the version of P.W. 70 that he had gone to the place with only a shirt and a pant and nothing else; that he did not carry withhim even a kerchief or pen appears strange and that it is even more surprising that he expected to sight appellant Govinda Reddy near the City Market a very busy place at that odd hour and went straight to the exact place at which appellant Govinda Reddy arrived. It was urged that the prosecution story that appellant Govinda Reddy was carrying M.Os. 183 to 185 on his person even after he had learnt that his house had been searched by the police on 9th June, 1956 and that appellants Krishna and Muniswamy had been arrested by the police is most artificial and unbelievable.
There is no substance in these contentions. P.W. 70 had to go in 'mufti' to screen his identity while he was going round in search of appellant Govinda Reddy. He has stated in his evidence that he had removed his coat and kept in the Market Police Station and was patrolling near the Market having set informants to trace appellant Govinda Reddy. There is nothing strange or dramatic about it. There is nothing strange in appellant Govinda Reddy carrying the jewels on his person even after he came to know that his house had been searched and appellants Krishna and Muniswamy had been arrested by the police.
It is not unlikely that he was carrying these jewels with a view to dispose of them or to go away with those jewels out of Bangalore by engaging a taxi and for the purpose of disposing them of in some town or city. It is quite possible that he had no place where he could deposit the jewels safely. The fact that these jewels were found in the knicker pocket of appellant Govinda Reddy has been, in our opinion, satisfactorily established. It is suggested in the course of the cross-examination of P.W. 70 that his statement that he arrested appellant Govinda Reddy near the market chowk is not true but it is interesting to notice that it has not been suggested to P.W. 70 Huchuraya that he was carrying these three M.Os. with him and planted them on appellant Govinda Reddy.
It is impossible to believe that P.W. 70 Huchuraya--a responsible Police Officer--would think of planting these jewels on an innocent man with a view to implicate him in a serious crime like murder and that he would do so, even if he had such a motive, in a busy place like the market chowk. It was urged that the fact that P.W. 70 Huchuraya had not conveyed the information immediately after he arrested Govinda Reddy to P.W. 115 Sri Revanna and had not even directed the police constables that were with him at the spot to convey the message by telephone to P.W. 115 Sri Revanna, District Superintendent of Police, indicates in a way that his version that he arrested appellant Govinda Reddy near the market chowk, as stated by him, is not true.
It was also urged that the fact that the mahazar drawn up at the place has been signed by three Sub-Inspectors and some of the mahazar witnesses have stated that there was only one Sub-Inspector lends support to the inference that neither appellant Govinda Reddy was arrested at the taxi stand nor the mahazar was drawn up at the place as alleged by the prosecution. We find no substance in any of these objections. No material facts have been elicited in the course of the cross-examinationof the several witnesses which compel us to hold that they are not creditworthy.
In the circumstances the learned Sessions Judge was perfectly justified in holding that these articles of jewellery--M.Os. 183 to 185 were found on the person of appellant Govinda Reddy when he was arrested by P.W. 70 Huchuraya near the taxi stand in front of City Market. Except denying that he had participated in the crime and that these articles M.Os. 183 to 185 were on his person as alleged by the prosecution, appellant Govinda Reddy has not offered any explanation.
The learned Sessions Judge is, therefore, justified in arriving at the conclusion that appellants Krishna, Muniswamy and Govinda Reddy had trespassed into the house of Belur Srinivasa Iyengar on the night of 5/6th June, 1956 with the intention of committing burglary and that during the commission of the burglary had murdered the inmates of the house and carried away the valuable articles of jewellery.
30. The value of the jewels that were found on the person of appellant Govinda Reddy is not more than Rs. 1,500. The total value of all the jewels alleged to have been stolen from 'Ranga Vilas' -- excluding the cash -- is move than Rs. 15,000. It is urged by Sri Bhashyam for Govinda Reddy that it is most unlikely that his client would he content with only 1/10th of the booty for his share and this fact that jewels, the value of which hears no proportion to his share of the booty were found in his possession indicates that he had not participated in the actual commission of the crime in 'Ranga Vilas'. It was also urged that it is unbelievable that appellant Govinda Reddy would receive the three jewels instead of the ready cash which was available for his share and would expose himself to the risk of being caught, if really he had participated in the crime. P.W. 38 Jayamma has stated in her evidence that appellant Govinda Reddy came to appellant Krishna's house in Ulsoor on the morning of Thursday, that is on 7th June, 1956 and that appellant Krishna took him into the pooja room, opened the trunks, M.Os. 107 and 108 and showed him all the jewels and gave M.Os. 183 to 185 to him. She has given the description of the jewels when she was examined by the Investigation Officer on 9th June, 1956 itself. The descriptions of the jewels given by her tally With the description of the jewels that were traced to the possession of appellant Govinda Reddy on 10th June, 1956. These circumstances indicate that the appellants had not yet actually distributed the booty and that they were making attempts to convert the several jewels into cash before they finally divided the booty. Moreover, what exactly was in the minds of the appellants is not possible to gather. The mere fact that the appellants had not distributed these jewels among themselves equally or equitably cannot lend support to either of the contentions raised by Sri Bhashyarn. It was suggested by Sri Guru that the possibility of some person or persons murdering the inmates of 'Ranga Vilas' on the night of 5th June, 1956 and some other person or persons committing theft of the jewels and cash afterwards cannot be ruled out. There is no force in the contention. The nature of the weapons used for committing the murders, theenormity of the injuries inflicted on the several deceased persons and the portions of the body over which the injuries had been inflicted and the fact that a large number of jewels had been stolen after opening almost all the boxes found in the house unmistakably indicate that the motive of the culprits was burglary. On a careful review of the entire evidence relating to the recovery of the articles of jewellery adduced by the prosecution we have no hesitation in concurring with the conclusion arrived at by the learned Sessions Judge that it is the appellants that had broken into the house of Belur Srinivasa Iyengar on the night of 5/6th June, 1956 and committed theft of the several articles of jewellery.
31. The next and the most important circumstance which establishes the complicity of all the three appellants beyond all reasonable doubt is the tracing of their finger impressions on certain silver wares that were found scattered in the store-room of ''Ranga Vilas' on the morning of 6th June, 1956. P.W. 114 Sri Sivacharan Singh has given evidence to the effect that immediately after recording the statement of P.W. 25 Nagaraj and submitting the F.I.R. he summoned to the place the Photographer and the Finger Print Expert attached to the Scientific Laboratory of the Police Department and requested them to examine the several places and the articles for foot and finger impressions, if any. P.W. 108 Thimmiah, the Photographer and P.W. 109 Prema, Finger Print Expert attached to the Laboratory, came to the place at once and examined the several places and the articles for finger and foot impressions. P.W. 109 Prema examined the premises minutely with the aid of magnifying glass and found some impressions--smudged, partial and overlapping--in several places and instructed P.W. 108 Thimmiah to take the photographs of them for the purpose of examining them. He also found some impressions on 19 of the silver articles that were lying scattered in the store-room and showed them to the panchayetdars.
He took those nineteen articles to the Laboratory for detailed examination with the permission of P.W. 114 Sivacharan Singh, the Inspector of Police. He developed the latent finger prints that were on those silver wares with the powdering and processing method and examined them in bright light in the Laboratory and found that three of them, viz., M.Os. 86, 87 and 89 -- contained finger impressions which were identifiable. He, therefore, requested P.W. 108 Thimmiah to take the photographs of the impressions that he had developed on the three silver wares and enlarge them and furnish him with the positive photographs of these impressions for the purpose of comparison.
P.W. 110 Mohammed Yakoob is the Officer in charge of the Scientific Laboratory of the Finger Print Bureau. He is an Assistant Superintendent of Police. He had gone to Mercara on official duty on 4th June, 1956 and came back to Bangalore on the evening of 6th June, 1956. P.W. 109 Prema, finger print expert, who is working under P.W. 110 Mohammed Yakoob as an Assistant delivered the photographs of the impressions found on M.Os. 86, 87 and 89 to him on 7th June, 1956 for the purpose of examination in the Laboratory.
He also delivered all the nineteen articles --M.Os. 81 to 99. P.W. 110 Mohammed Yakoob compared the photographs with the impressions that were found on M.Os. 86, 87 and 89 and found them tallying. He compared the prints on M.Os. 86, 87 and 89 with the three photographs Exhibits P-175, P-176 and P-177 and found them to be the correct photographs of the impressions found on the three articles. He also examined the impressions on M.Os. 86, 87 and 89. On 8th June, 1956, P.W. 110 Mohammed Yakoob received the finger tips of the deceased persons Singamma, Vengadamma, Ramalingam, Lava, Kusha and Belur Srinivasa Iyengar.
He took the impressions of the tips of finger of all those persons and compared them with the enlarged photographs of the impressions found on M.Os. 86, 87 and 89 and found that they did not tally. He informed this fact to the Investigating Officer on 9th June, 1956 and requested him to furnish the finger print impressions of suspects, if any, for the purpose of comparison with the developed latent impressions. The evidence adduced in the case makes it abundantly clear that the photographs Exhibits P-175, P-176 and P-177 are the enlarged photographs of the finger impressions found on M.Os. 86, 87 and 89, respectively.
On 11th June, 1956, P.W. 115 Sri Revanna, the Investigating Officer, directed P.W, 112 Krishnamurthi and P.W. 111 Daffedar Nanjundiah to obtain the thumb impressions of the three accused persons that had been arrested and kept in separate lock-ups in Bangalore City. Accordingly P.W. 111 and P.W. 112 went to the respective lock-ups and took the finger impressions of all the ten fingers of the three accused persons on Form No. 94 and prepared also the search slips. Exhibit P-191 is one of the finger print slips of Govinda Reddy. Exhibit P-190 is one of the slips of Krishna and Exhibit P-192 is one of the slips of Muniswamy taken by P.W. 112 Krishnamurthy and P.W. 111 Nanjundiah on llth June, 1956.
The slips of finger prints taken from the fingers of the three accused persons were sent to P.W. 115 Revanna and he in turn sent them to P.W. 110 Mohammed Yakoob for the purpose of comparison with the photographs of the latent impressions found on M.Os. 86, 87 and 89. The finger print expert compared the impressions found in the finger print slips with the enlarged photographs of the latent impressions and found that the two impressions found on M.O. 86 which were marked as 'Q' and 'Q1' by him in the photograph Exhibit P-175 tallied with the right ring finger impression and the right middle finger impression of appellant Krishna, that the impression on M.O. 89 the enlarged photograph of which was Exhibit P-176 tallied with the right middle finger impression of appellant Govinda Reddy, and the impression on M.O. 87 of which Exhibit P-177 is the enlarged photograph tallied with the right thumb impression of appellant Muniswamy.
P.W. 110 Mohammed Yakoob then directed P.W. 108 Thimmiah to take the photographs of the impressions of the agreeing fingers from the finger slips. Accordingly P.W. 108 Thimmiah took the photographs in the presence of P.W. 110 Mohammed Yakoob. Exhibit P-193 is the negativeof the impressions of the right middle finger and of right ring finger (Exhibits P-190(b) and P-190(c), respectively); and Exhibit P-194 is the enlarged photograph of the right middle finger impression and Exhibit P-195 is the enlarged photograph print of the right ring finger impression of appellant Krishna.
Exhibit P-196 is the negative of the impression of the right middle finger of Govinda Reddy and Exhibit P-197 is the enlarged photograph taken from Exhibit P-191(b). Exhibit P-198 is the negative of the photograph of the right thumb impression of appellant Muniswamy. Exhibit P-192(b) is the impression of the right thumb of appellant Muniswamy and Exhibit P-199 is the enlarged photograph thereof. P.W. 110 Mohammed Yakoob compared these impressions minutely and carefully in the Laboratory and came to the conclusion that the impressions that were found on M.O. 86 were those of the right ring and right middle finger of appellant Krishna, that the single impression found on M.O. 87 is the impression of the right thumb of appellant Muniswamy and the impression found on M.O. 89 is the impression of the right middle finger of appellant Govinda Reddy.
The finger print expert found as many as fifteen characteristics common between the impression 'Q' in Exhibits P-175 and Exhibit P-194; as many as fourteen common characteristics between the impression 'Q1' in Exhibit P-175 and Exhibit P-193 and has described them fully in his written opinion sent to the Investigating Officer. There were as many as fifteen characteristics that were common between the impression of the right middle finger of appellant Govinda Reddy and the impression that was found on M.O. 89 the enlarged photograph of which is exhibit P-176.
Similarly the Expert found thirteen characteristics which are common to both latent and patent impressions of the light thumb of appellant Muniswamy. The Expert who was examined as P.W. 110 in the trial Court has been subjected to searching cross-examination and nothing has been elicited to discredit his evidence. The learned Sessions Judge has accepted the opinion of the Expert about the identity of these impressions. The correctness of the opinion of the Experts and the conclusion based on the same by the learned trial Judge have been challenged by the learned Counsel for the appellants on many grounds.
It was contended that P.W. 108 Thimmiah is an amateur in photography, that he had not taken the photographs of all the nineteen articles, photographs of M.Os. 86, 87 and 89 with the impressions on them and that he had not taken the contact photographs of these negatives to show that Exhibit P-195, Exhibit P-196 and Exhibit P-197 are the enlarged photographs of them and therefore no value should be attached to them. There is absolutely no substance in any of these contentions, P.W. 108 Thimmiah has stated in his evidence that he is working as a photographer in the Police Department for the last 25 years.
It is no doubt true that he does not possess any technical qualification inasmuch as he has neither obtained a degree nor a diploma in photography but his experience for over 25 years inphotography is sufficient enough to call him as an. Expert. P.W. 108 Thimmiah has stated in his evidence that he did what all he was directed to do by P.W. 109 Prema and P.W. 110 Mohammed Yakoob and nothing more. The mere fact that he had not taken the photographs of these nineteen articles and the photographs of the three articles M.Os. 86, 87 and 89 with the impressions on them cannot be a ground to discard his evidence. He has stated that he did not feel it necessary to take the photographs of the articles with the impressions on them since the articles themselves were likely to be produced before the Court for purposes of comparison.
He has also stated that he look enlarged photographs directly from the negatives and therefore there was no need to take the contact prints from them. There is absolutely nothing to doubt the correctness of the statement made by P.W. 108 Thimmiah about the identity of the articles from which he took the photographs and enlarged them. It was contended that P.W. 110 Mohammed Yakoob is not an expert inasmuch as he had not sufficient experience in the matter of comparison of thumb impressions and the learned trial Judge was not justified in entirely depending upon his opinion in coming to the conclusion that the impressions found on M.Os. 86, 87 and 89 agreed with some of the finger impressions of appellants Krishna, Muniswamy and Govinda Reddy, respectively.
It is seen from the Judgment of the learned Sessions Judge that he did not delegate his duties to the Expert of finger prints. He has not based his conclusions simply because the Expert stated that the finger prints are identical but on the contrary he his on an elaborate, thorough and detailed discussion on the evidence of the Expert, agreed with the opinion of the Expert. Moreover, the learned trial Judge has stated in the course of his Judgment that he examined the enlarged photographs of the patent impressions with the disputed latent finger prints with the aid of magnifying glass and found them tallying.
There is absolutely nothing to doubt the statements of the learned Sessions Judge. The science of comparison of finger prints has developed to a stage of exactitude. It is quite possible to compare the impressions taken from finger prints of individuals with the disputed impressions, provided they are sufficiently clear and enlarged photographs are available. The identification of finger impressions with the aid of a good magnifying glass is not difficult, particularly when the photographs of latent and patent impressions are pasted side by side. We have ourselves examined the enlarged photographs of the admitted and the disputed thumb impressions which are pasted on sheets of paper and we have no doubt in our mind that the opinion of the Expert is correct.
The opinion of the Expert, based as it is on a careful comparison of the enlarged photographs, has not been shattered by the lengthy cross-examination. There is absolutely no reason to think that there is any room for error in matters of this kind. It appears to us that P.W. 110 Mohammed Yakoob has compared the disputed and the patent impressions carefully and the learned Sessions Judge was perfectly justified in accepting his opinion andbasing his conclusion that the impressions found on M.Os. 86, 87 and 89 tally with the right ring and right middle finger impressions of appellant Krishna, the right thumb impression of appellant Muniswamy and the right middle finger impression of appellant Govinda Reddy, respectively.
32. It was strenuously urged by the learned Counsel for the appellants that the Investigating Officer acted in violation of the right guaranteed by Article 20(3) of the Constitution of India in directing P.W. 111 and P.W. 112 to take the thump impressions of the three appellants while they were in custody for purposes of comparing them with the latent impressions found on M.Os. 86, 87 and 89 and therefore that evidence collected on a comparison of the impressions so taken by the Investigating Officer cannot be made use of against the appellants. Article 20(3) of the Constitution of India reads thus :
'No person accused of any offence shall be compelled to be a witness against himself.
Relying on certain observations of the Supreme Court in M.P. Sharma v. Satish Chandra, : 1978(2)ELT287(SC) (Z6), it was argued that taking of thumb impressions of as accused person during the course of the investigation is virtually compelling him to give evidence to incriminate himself and therefore is in the nature of testimonial compulsion and is hit by Article 20(3) of the Constitution of India. In M.P. Sharrna v. Satish Chandra (Z6), their Lordships observed as follows :
'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........ 'that the protectionafforded to an accused in so far as it is related to the phrase 'to be a witness' is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution.'
33. Their Lordships held in the same case that a search warrant which is addressed to an officer of the Government generally to a police officer to search and seize a document from the place of an accused person is not hit by Article 20(3). The question as to whether the thumb impressions taken by the police during the course of the investigation can be produced in Court as evidence against the accused and whether the same amounts to testimonial compulsion came up for consideration before Somasundaram, J. in In re Sheik Muhammad Hussain, : AIR1957Mad47 (Z7). His Lordship after considering the effect of the decision of the Supreme Court in Sharma v. Satishchandra (Z6) observed as follows :
'But so far as I am aware Their Lordships of the Supreme Court have not held that any statement taken by the police or anything done by thePolice in course of investigation which is subsequently produced before the Court as evidence is hit by Sub-clause (3) of Article 20 of the Constitution. In my opinion the thumb impression taken by the Police on a slip of paper which was later on produced in Court cannot amount to testimonial compulsion.'
His Lordship Somasundaram, J. held that the slip of paper on which the thumb impression of the accused person had been taken during the course of investigation was admissible in evidence for the purpose of comparing it with the finger impression of the accused with those of the disputed thumb impressions and the same was not hit by Article 20 of the Constitution. In Re, Soruanalingam Chettiar, : AIR1955Mad685 (Z8). repelling the argument that the issue of a search warrant to seize and produce certain documents from an accused person is hit by Article 20(3) of the Constitution, his Lordship Balakrishna Aiyer, J. observed as follows :
'A person may commit a murder and bury the body in the backyard of his house and he may commit burglary & keep the loot in an almirah inside his house, or he may commit cheating and keep the proceeds thereof in a drawer of his writing desk and they would all be as safe as if they had been lodged in the Bank of England. The Constitution is not intended to be a charter for the lawless and there is nothing in Article 20 of the Constitution or in any of its other articles to prohibit the police from searching either the person of the accused or the premises in the manner laid down by Criminal Procedure Code.'
It is clear from the above that issue of a search warrant or taking other proceedings for seizure of documents or articles or any incriminating evidence from the custody or the person of an accused by the police even if it be quite against his will such as stolen articles or blood stained clothes and the finger prints does not amount to testimonial compulsion. Madhya Pradesh High Court in Brij Bhushan Raghunandan Prasad v. The State, (S) : AIR1957MP106 (Z9), accepted the correctness of the decision of Somasundaram, J. in : AIR1957Mad47 (Z7).
In that case it was pointed out by the learned Government Advocate that the decision of Somasundaram, J. in : AIR1957Mad47 (Z7), apparently ran counter to what the learned Judge himself has stated in an earlier case reported in Rajamuthukoil Pillai v. Periayasami Nadar, AIR 1956 Mad 632 (Z10). Their Lordships after reviewing both the decisions of Somasundaram, J. held that there was no contradiction between the two decisions and observed that in AIR 1956 Mad 632 (Z10), it was held by the learned Judge that a direction by the Court to the accused to give his thumb impression amounted to asking him to furnish evidence that this was prohibited under Article 20(3) and in : AIR1957Mad47 (Z7), what was considered was the question about the admissibility of the thumb impression given by the accused apparently without any objection and the same was not hit by Article 20(3) of the Constitution.
34. A more recent decision where the Supreme Court decision in : 1978(2)ELT287(SC) (Z6), and other decisions following it are reviewed is that reportedin In re, Palani Goundan, : AIR1957Mad546 (Z11). In that case their Lordships Somasundaram and Ramaswamy Goundar, JJ. considered the scope of Article 20(3) of the Constitution. His Lordship Ramaswami Goundar, who rendered the judgment in the case after examining all the decisions of the several High Courts and that of the Supreme Court, observed as follows :
'It is therefore clear from the decision cited above that under a search warrant or other kindred process of law, documents or articles or any other incriminating evidence can be seized from the custody or the person of the accused by force and against his will such as stolen articles, blood stained clothes, etc., but he cannot be compelled to produce them himself. For the same reason there can be no objection to an accused person being taken to a doctor for the examination of injuries on his body so as to ascertain whether he could not have participated in an occurrence. He can also be taken to an identification parade to enable the prosecution witnesses to observe his physical features with a view to identify him.'
'There is one aspect of this matter which calls for some mention, namely, the taking of the signature or the thumb impression of an accused for the purpose of its being compared with the signature or thumb impression in questioned documents with a view to establish offences such as forgery, criminal breach of trust, etc. It appears to me that the making of thumb impression or the signature of the accused does not stand on a different footing from the seizure of documents or articles or other facts of evidence from the person of the accused.
Though he cannot be compelled to produce such evidence it can be taken or seized from him. That is 'an act of another to which he is obliged to submit' and not 'the positive volitional evidentiary act' of the accused to use the language of the Supreme Court. Section 73 of the Evidence Act enables a Court to take such thumb impression; and the Central Act 33 of 1920 enables a Police Officer to take what is called the measurements of the accused which include finger and footprint impressions.
That being so, it seems to me that the finger print or the footprint of that accused is a fact of evidence which he carried with him and the Police Officer who is authorised under the said Act may seize that evidence by taking his thumb impression to a piece of paper. In a Rangoon decision reported in Emperor v. Nga Tun Hlaing, AIR 1924 Rang 115 (FB) (Z12), in answering a contention that by directing the accused to make his finger impression the Court is in effect compelling him to provide evidence against himself one of the learned Judges who constituted the Full Bench observed thus at p. 119.
'Such a contention is however in my view inadmissible since what really constitutes the evidence, viz., the ridges on this thumb are not provided by him any more than the features of his contentions are provided by him. All that he is asked to do is to display those ridges; for better scrutiny the ridges are inked over and an impression is made on a piece of paper.'Later on in the same decision, His Lordship dealt with the two decisions of Somasundaram, J. and observed thus ;
'On the question of taking the thumb impression or the handwriting of the accused there are two decisions of our High Court both rendered by my learned brother, Somasundaram, J. In 1952-2 Mad LJ 468 : (AIR 1956 Mad 632) (Z 10) there was a direction by the Magistrate to the accused to give his thumb impression in Court so that it might be compared with certain other documents on which the complainant relied.
The learned Judge held that the direction asking the accused to give his thumb impression would amount to asking him to furnish evidence which is prohibited under Article 20(3) of the Constitution, and therefore the accused cannot be compelled to give the thumb impression as directed by the Magistrate. I respectfully agree with that decision because that was a case where the accused was directed to give his thumb impression and not a case where it was taken from him. He cannot be compelled to produce evidence against himself.
But there can be no objection to a police officer taking the thumb impression of an accused for the purpose of his investigation. That was, in fact, the decision in the other case, Criminal Appeal No. 552 of 1955 (Unreported) (Since reported in : AIR1957Mad47 ) (Z7)), where the thumb impression of the accused was taken by Sub-Inspector of Police. Relying on the decision of the Supreme Court it was contended that that evidence was hit by Article 20(3) as it amounted to testimonial compulsion. But my learned brother repelled that contention with this observation.'
But so far as I am aware, their Lordships of the Supreme Court have not held that any statement taken by the Police or anything done by the police in the course of investigation which is subsequently produced before the Court as evidence is hit by Sub-clause (3) of Article 20 of the Constitution. In my opinion the thumb impression taken by the Police on a slip of paper which was later on produced in Court cannot amount to testimonial compulsion.
These two decisions of my learned brother Somasundaram. J. forcibly illustrate the general principle which I have endeavoured to evolve, namely, while the accused cannot be compelled to produce any evidence against himself, such evidence can be taken or seized, provided of course, such taking or seizure is legally permissible.'
35. If we may say so with respect the above observations of his Lordship Ramaswamy Goundar bring out what we have in our mind precisely. Even if it is assumed that the Sub-Inspector of Police and the Daffedar compelled the appellants to give their thumb impressions or forcibly took their impressions on the sheets of paper during the course of the investigation, in our opinion, it is not hit by Article 20(3) of the Constitution of India since it does not amount to testimonial compulsion. We may in this connection state that even in the United States of America where the guarantee of 'due process' is in vogue it is held that taking of finger prints does not violate the privilege against selfincrimination. Hugh Evander Willis' in his treatise on Constitutional Law of the United States (1936 Edition) at page 522 states :
'Is the taking of finger prints a violation o the privilege against self-incrimination? This question seems to have been answered in the negative. The accused does not exercise a volition or give oral testimony. He is passive. He is not giving testimony about his body but is giving his body. If there is any question involved it is a question of the right of privacy.'
Willoughby in his book on 'the Constitutional Law of the United States' (Second Edition) at page 1172 in paragraph 719 dealing with compulsorily taking of finger prints states as follows :
'Though there are no direct cases in the United States Supreme Court upon the point, there are Slate decisions which support the doctrine that the accused's right to immunity from self-incrimination is not violated when he is compelled to exhibit himself or a part of his body to the jury or to allow a record of his finger prints to be taken.' It is, therefore, clear that there is no substance in the contention raised on behalf of the appellants.
36. It was urged that the evidence of P.W. 108 Thiminiah, P.W. 109 Prema and P.W. 110 Muhammad Yakoob should not be accepted in the absence of other independent evidence since they are officers attached to the Police Department and arc actually working under the control of P.W. 115 Sri Revanna, District Superintendent of Police. It was strenuously urged that the evidence of Police Officers should not he accepted without calling for corroboration.
37. A somewhat similar argument was advanced in Aher Raja Khima v. State of Saurashtra, (S) : 1956CriLJ426 (Z 13-14). His Lordship Venkatarama Iyer, J. repelled that argument in the following terms :
'Pausing here; it will be seen that in discussing the question of the recovery of the bloodstained axe, as indeed throughout the judgment the learned Sessions Judge has taken up the attitude of distrust towards the police for which it is difficult to find any justification in the evidence--an attitude which I regret to say, is becoming a growing feature of judgments of Subordinate Magistrates.
When at the trial it appears to the Court that a police officer has, in the discharge of his duty, abused his position and acted oppressively, it is no doubt its clear duty to express its stern disapproval of his conduct. But it is equally its duty not to assume such conduct on the part of the officer gratuitously and as a matter of course when there is as in this case no reasonable basis for it in the evidence or in the circumstances.
The presumption that a person acts honestly applies as much in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good grounds therefor, Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the Police Administration.'
In our opinion, the above observations of his Lordship give an effective answer to the contention raised by the learned counsel for the appellants against the evidence of P.W. 308 Thimmiah, P.W. 109 Prema and P.W. 110 Mohammad Yakoob.
38. It was submitted on behalf of the appellants, somewhat strenuously, that the impressions of the finger prints had been obtained subjecting them to compulsion and without apprising them for what purposes they were being obtained and that any evidence based on their comparison should not be allowed to be used against the appellants. Except the self-serving bald assertion of the appellants, there is nothing in the records to indicate that any force or compulsion was used against the appellants while the impressions of their finger prints were obtained by P.W. 111 Nanjundiah and P.W. 112 Krishnamurthi, The mere fact that the appellants were in lock-ups and were produced by the Police Officers or police constables were around them when their impressions were obtained by the two witnesses does not necessarily lead to the conclusion that any force or violence or compulsion was used against the appellants.
P.W. 112 Krishnamurthi has stated in his evidence that the appellants agreed to give the impressions of their fingers when he explained to them that he had come to take the impressions for the purpose of investigation of the case. P.W. 111 Nanjundiah has corroborated this evidence. There is no reason why the evidence of the S. I. of Police and the Daffedar in this regard should be rejected. If really the appellants had been compelled to give their thumb-impressions quite against their will they had opportunities to complain about it to the Magistrate when they were produced by the police for the purpose of obtaining their remands. It is clear that they did not do so. P.W. 111 Nanjundiah and P.W. 112 Krishnamurthi denied the suggestion that they had obtained the thumb impressions by 'Zoolum' or 'Zabardust' as alleged by the appellants.
39. It was urged by Sri Guru, the learned counsel for the appellants that the defence of the appellants had been seriously prejudiced by the order passed by the learned trial Judge on I.A. Nos. V and VI filed for summoning some witnesses for the defence of the accused and therefore the trial is vitiated and is liable to be set aside. We see no substance in this contention. The appellants were called upon by the City Magistrate, Bangalore after they were directed to take their trial before the Court of Sessions on the several charges which were read over and explained to them to submit a list of witnesses that they desired to examine in the trial court.
The appellants did not produce any list and submitted before the Magistrate that they would file lists later on. The appellants did not produce or submit any list of witnesses to the Magistrate upto the date of the commencement of the trial. But a list of defence witnesses was, no doubt, submitted on behalf of the appellants by Sri Guru in the Court of Sessions immediately after the trial commenced, The learned counsel cited Sri Hanmanthaiya, the then Chief Minister of Mysore, Sri H. Siddaveerappa, the Home Minister, the Inspector-General of Police, the Deputy Inspector-General ofPolice and the Press Representatives of 'Prajavani', 'Tai Nadu' and 'Janavani' dailies in the list so filed.
No reasons for citing those witnesses had been stated in the application. The learned Sessions Judge, therefore, called upon the learned Counsel for the appellants to indicate to the Court on what matters those witnesses where likely to give evidence. The learned Judge wanted to be satisfied that the evidence of those witnesses was material and they had not been summoned for the purpose of causing unnecessary delay or defeat the ends of justice. It was submitted by the learned Counsel for the accused that the Chief Minister, the Home Minister the heads of the Police Department and the press representatives had all visited 'Ranga Vilas' on the morning of June 6th, 1956 to see the condition of the house and the dead bodies and therefore their evidence was material. It was also submitted that the then Inspector-General of Police bad undergone training in Scotland Yard in Scientific investigation of cases and as such was competent to give his opinion about the investigation conducted in the instant case. The learned trial Judge rejected the application holding that the purpose of summoning those witnesses was vexatious and was intended to cause unnecessary delay and at the same time he observed in the course of his order that he had no objection to direct summons to be issued to any of the representatives of the daily papers if it was indicated that they had personal knowledge about any matter in the case and were competent witnesses and their names and addresses were furnished. The learned counsel for the accused did not indicate on what material points the several press representatives were likely to give material and useful evidence. In the circumstances we are of opinion that the appellants cannot have any grievance in the matter. As a matter of fact Govinda Reddy examined three witnesses for his defence. But accused Krishna and Muniswamy did not examine any witness on their behalf. It is interesting to note that accused 1 and 2 stated before the learned trial Judge when they were called upon to enter upon their defence and state whether they had any defence witnesses to be examined on their behalf that they had no witnesses to be examined.
40. After a careful review of the entire evidence adduced in the case we entertain no doubt in our minds that the conclusions arrived at by the learned Sessions Judge that every one of the circumstances relied upon by the prosecution had been satisfactorily established by clear evidence and that those circumstances are inconsistent with the innocence of the accused and lead to the irresistible conclusion that it is the appellants and appellants alone that committed the several offences alleged against them, are in the circumstances of the case perfectly justified. We do not see any ground to differ from the learned Sessions Judge. The Several circumstances proved against the appellants arc clearly tell-tale circumstances and establish beyond doubt that the accused broke into the house of Belur Srinivasa Iyengar on the night of 5-6th June, 1956 with the common intention of committing burglary and murdered the inmates of the house. The nature of weapons used and the enormity of the injuries inflicted and the portions of the body over which they are all inflicted clearly show that the commonintention of the appellants was to bring about the deaths of their victims to facilitate theft of the articles of jewellery and the cash that were in the house. No other inference is possible in the circumstances of the case. The fact that a large number of jewels belonging to and in the possession of the members of Belur Srinivasa Iyengar's family which were found missing from the house on the morning of 6th June, 1956 were traced and recovered from the appellants -- either from the person of the accused or from their possession establishes beyond all reasonable doubt that these appellants are the persons that had invaded 'Ranga Vilas' and committed theft of the articles of jewellery and for that purpose committed murders of Vengadamma, Singamma, Lava, Kusha, Ramalingam and Belur Srinivasa Iyengar and inflicted grievous injuries to Hangalakshmi with a view to commit her murder. The convictions of the appellants on all the charges based as they are on very good evidence adduced in the case except on charges under Section 380 of the Indian Penal Code are liable to be confirmed. As regards the convictions of the appellants of an offence under Section 380 of the Indian Penal Code we feel that it cannot be maintained. The learned Sessions Judge has convicted all the appellants of an offence punishable under Section 392 of the Indian Penal Code for having committed robbery. He has also convicted the appellants of an offence under Section 380 of the Indian Penal Code in respect of the theft of the very same articles. Robbery is an aggravated form of theft. When the appellants are convicted of an offence of robbery in respect to the articles removed from the house of Belur Srinivasa Iyengar they cannot also be convicted of an offence punishable under Section 380 of the Indian Penal Code for having committed theft of them. Therefore, the convictions of the appellants in respect of the offence of theft under Section 380 of the Indian Penal Code are liable to be set aside and are set aside.
41. As regards the sentences it was suggested by Sri Bhasyam that if this Court is inclined to act upon the circumstantial evidence adduced in the case and hold that the appellants committed the offences alleged against them and decide to record a conviction of murder as against the appellants the Court should not impose the extreme penalty of the law and that in the state of record the lesser of the two punishments provided under Section 302 of the Indian Penal Code, namely, imprisonment for life, should be deemed to meet the ends of justice. There is no force in this argument.
As observed by their Lordships of the Supreme Court in Vadivelu Thevar v. State of Madras, (S) : 1957CriLJ1000 (Z15), the question of sentence, has to be determined not with reference to the volume of character of the evidence adduced by the prosecution in support of the prosecution case but with reference to the fact whether there are any extenuating circumstances which can be said to mitigate the enormity of the crime. Their Lordships of the Supreme Court observed as follows :
'If the Court is satisfied that there are such mitigating circumstances, only then, it would be justified in imposing the lesser of the two sentences provided by law.......The question as to whatpunishment should be imposed is for the Court to decide in all the circumstances of the case withparticular reference to any extenuating circumstances. But the nature of proof as we have indicated, has nothing to do with the question of punishment.'
In the instant case there are no extenuating circumstances which can be legitimately urged in support of the view that the lesser penalty under Section 302 of the Indian Penal Code would meet the ends of justice. It is clear from the evidence adduced in the case that the appellants have acted like barbarians inasmuch as they have killed six innocent persons -- including two children while they were fast asleep and for gain. The appellants had gone prepared with M.Os. 1, 3 and 4 to meet all eventualities and to commit the murders of the inmates of the house to facilitate the commission of robbery and did as a matter of fact commit the murders of six persons and commit theft of a large number of articles of jewellery and other articles. The murders, apart from being pre-planned, arc dastardly and we do not think that any sentence other than death would be appropriate in the circumstances disclosed in the case in so far as the, charges under Section 302 of the Indian Penal Code are concerned. As regards the other offences, we feel that the sentences awarded to the appellants do not call for our interference.
42. In the result, therefore, for the reasons stated above and subject to the modification of the convictions and sentences of the appellants in respect of the charges under Section 380 of the Indian Penal Code read with Section 34 of the Indian Penal Code, these appeals are dismissed. The reference made by the learned Sessions Judge under Section 374 of the Code of Criminal Procedure is accepted and the sentences of death passed against the appellants are Confirmed.
43. Order accordingly.