Burn, J.

1. The appellant has been convicted by the learned Sessions Judge of Guntur of the murder of a woman named Gangamma, and has been sentenced to death.

2. Gangamma was a widow about 30, living with brother Nagi Reddi (P.W.l) in the village of Tumular in the taluk of Tenali. On the 30th of July last, in the afternoon, she went out to work in a field belonging to her brother, and in the evening her dead body was found on the bund of an irrigation channel immediately to the north of that field. There were five stab-wounds on her body, inflicted with some such weapon as a spear, and the case is without doubt a case of murder.

It was alleged by P.W. 1 and his wife P.W. 2, that after the death of Gangammas husband she had contracted an illicit intimacy with the appellant, but had broken it off about a year before. During the last year of her life Gangamma is said to have been on terms of positive enmity with the appellant. The learned Sessions Judge has held that the accused evidently got infuriated with the deceased for ceasing her connection with him and waited for an opportunity to wreak vengeance and killed her when the opportunity came.

3. The evidence against the appellant was wholly circumstantial. Three witnesses were examined who might have been eye-witnesses, but just failed to see the actual murder, one because she ran away before it was done, and the other two because their attention was drawn to the scene after the murder had been committed. The woman who ran away was P.W. 3. She says that she went with Gangamma to help her to fetch grass from P.W.1s field. She began to work in a different place from Gangamma, and she had only just begun to cut grass when she heard the voices of two persons in angry alter cation. Going near the northern edge of the field, she saw that the two who were quarrelling were the appellant and Gangamma. She tried, she says, to approach them, but the appellant said to her: Advance a foot and you are dead She then left the field altogether, went back home and then went to Davulur to sell fish. The other two are washermen, examined as P.Ws. 4 and 5. They said that they happened to be putting up a shed near the scene of the murder, and when they looked up they saw the deceased Gangamma lying on the ground, and the appellant bending over her. The appellant came in their direction pointing a spear at them, and thereupon they ran away home to Kollipara.

4. The learned Sessions Judge is quite right in saying that the evidence of these witnesses if accepted is almost conclusive of the guilt of the appellant; in fact he might have omitted the qualification almost. We are not however able to agree with the learned Sessions Judge that this evidence can be accepted. On the contrary, we are quite clear that it must be wholly rejected. We do not attach any importance to the fact that P.W. 1 when he reported the occurrence to the V.M. at 8 P.M., omitted to mention that his sister was accompanied by P.W.3 when she went out to work in his filed. We reject the story of P.W.3 because it is incredible, and because it does not agree with the evidence of P.Ws.4 and 5. It is quite impossible to believe P.W.3 when she says that the mere sound of a quarrel between the appellant and Gangamma, and the threat of the appellant, made her give up the task of gathering grass f or which she had come out that afternoon, and made her go off to sell fish at the village of Davulur. If she had had fish to sell she would certainly not have gone with Gangamma to cut grass. Again her conduct in the evening when she returned from Davulur is quite inexplicable if it be supposed that she had seen the appellant and the deceased engaged in a hot altercation that afternoon. She says that she heard of Gangammas murder when she got home, but did not go to tell Gangammas brother (P.W.1) anything that night as it was too late for me to go out. Even the next morning she did not go to inform P.W.1, who lives only 200 yards from her house.

5. We have said that the evidence of P.W.3 does not agree with that of P.Ws.4 and 5. This is in the very important matter of time. According to P.W.3 the sun had just turn west when the appellant threatened to kill her. This means that the murder took place very early in the afternoon. But according to P.W. 4 it was nearing sunset when he and P.W.5 saw the appellant bending over the corpse Gangamma. P.W.4 says it was about 3 hours before sunset that he and P.W.5 started to their field. If P.W.4 is telling the truth about the time he and P.W.5 went to put up their shed, P.Ws.4 and 5 could not have got to that place till long after P.W.3 had ran away to sell her fish. But P.W.3 says that she saw the two washermen working in their field when she and Gangamma arrived. It is quite impossible to reconcile these two versions. Again, if P.Ws.3 and 1 are speaking the truth, P.W.3 must have been examined at the inquest. P.W.3 is supposed to have told P.W.1 what she had seen soon after sunrise on the 31st of July, The inquest did not begin, according to the Sub Inspector of Police, who held it, till 9 a.m. But P.W.3 was not examined at the inquest. We think it is clear that the evidence of P.Ws.3, 4 and 5 is wholly false.

6. The rest of the circumstantial evidence is concerned with the discovery of a pair of sandals (M.O.1) found by the Police about 60 yards from the corpse of Gangamma and alleged to belong to the appellant, and the conduct of the appellant when the sandals were tried on his feet and found to fit. The Circle Inspector (P.W.14) says that he reached the scene of crime at about 1 p.m. on the 31st. It was he who found the sandals, one of which had stains of blood on it. The Inspector then took both the sandals to the village of Tumulur, where he met the accused under arrest. The right sandal was tried and it fitted the right foot of the accused correctly. Then the accused gave information about the clothes he wore at the time of the occurrence. This was embodied in a

panchayathnama (Ex. J) and then the accused took the Police and other witnesses to the well in which he said he had concealed the clothes. An Erukula of Tumulur named Venkayya was sent down into the well, and he brought out a cloth bundle. Unwrapped, this was found to consist of a dhoti, a half-arm shirt, and a pair of white shorts; these garments had been wrapped round a piece of brick.

Another panchayatnama (Ex.J-l) was prepared for the recovery of the clothes.

7. The importance of this evidence is that the left sandal, and all the clothes (M.Os.3, 4 and 5) were found on examination to be stained with human blood, and the appellant is alleged to have told the Police that he was wearing these things when he murdered Gangamma.

8. The whole of this evidence is however of a very unsatisfactory and unreliable nature. In the first place, the learned Sessions Judge has treated all the panchayatnamas (Exs.H, J, J-l, K and L) as substantive evidence, which is quite wrong. It is the practice of the Police to have such documents as these written, and there is nothing wrong in the practice, no doubt the practice has been forced upon the Police by the persistent refusal of the Courts to believe what a Policeman says unless he can produce something in writing or some other witness to corroborate him. But there is no provision of the Evidence Act by which such documents can be used as substantive evidence. If they are prepared at the time they can be used by the witnesses for the purpose of refreshing their memories in the witness-box, under S.159 of the Evidence Act, but in themselves they are not evidence. In the present case for example the witnesses who have written or signed the panchayatnamas could have said in the witness-box what was the information which the accused gave leading to the discovery of the clothes, and could have referred to the panchayat namas in order to refresh their memories. They did not do so, and consequently there is no admissible evidence of the information which the accused gave. Apart from that technical defect, the evidence is not satisfactory even if the panchayatnamas are themselves read as evidence. Ex.H was written by the V.M. (P.W.10) and it reads as if the shoes were tried on the feet of the accused at the place where they were found. It also recites that the Police seized this pair of shoes in the presence of the mediators. But all the oral evidence is that the accused was not there when the shoes were found and that the trying-on took place at the girls school in the village. Moreover, the V.M. who wrote Ex.H had to admit in cross-examination that he was not present when the shoes were found, that he never saw the shoes at all till he saw them at the girlss school, and that he personally knew nothing of the facts recited in Ex.H except about the trying on. And even that fact was not correctly recorded. The last sentence in Ex.H is: The shoes were at once tried and found to fit the accuseds feet. But in fact only one of the shoes was tried on the accused, according to the Inspector (P.W.14) on whose word the V.M. relied when he wrote Ex.H. It is true that if Ex.H had shown the trying-on of only one sandal, fitted the feet of the accused, proves nothing more than that the sandals may possibly be the accuseds. The washer woman who said that the clothes belonged to the accused was obliged to admit that they bore no dhobi mark.

9. The remaining item of evidence is that the parings taken from the nails of the accused on the afternoon of the 31st July, were found on examination to be stained with human blood. By itself this cannot be taken as an incriminating circumstance.

10. The accused examined two witnesses whose evidence the learned Sessions Judge dismisses as of no help to the accused. We are not able to agree with the learned Sessions Judge. D.W.1, who sat on the inquest-panchayat said that before the inquest began he came to know that some clothes were in the Busivari well. D.W.2 is the Erukula who actually fetched the bundle of clothes out of the well. He says that he was sent for by the Police at mid-day. The learned Sessions Judge makes about this witness the astonishing remark that the difference in time does not at all matter in this case. This is astonishing, because the difference in time is of the utmost importance. If D.Ws. 1 and 2 are telling the truth, the Police knew all about the clothes in the well before mid-day. It must then follow that all the story of finding sandals, trying them on, getting a confession out of the accused leading to the finding of the clothes is sheer concoction. The learned Sessions Judge has quite misunderstood this part of the case.

11. Apart from the confession of the accused in Ex. J there is no evidence that the appellant had any motive to kill Gangamma. The alleged intimacy between the appellant and Gangamma was not spoken to by P.W.1 or P.W.2 when they were first examined by the Police, nor was it mentioned in P.W.1s statement to the V.M. On the contrary, in the statement to the V.M. P.W.1 alleged that the appellant was his enemy, not that the appellant had anything against his sister.

12. The evidence in this case is not such as can be relied on to convict the appellant. We therefore set aside the conviction for murder and the sentence of death, and direct that the appellant be set at liberty forthwith.