Prabhu v. State of U. P.

Judgment

cl ' SUPREME COUR'!'. REPORTS contention which is accordingly rejected. In Crimi. nal Appeal 62 of 1960 an argument was advanced that the State had launehed prosecutions under the Act, some wit.h, and others withput sanction; and that was disorimin:ttion hit by Art. 14. 'fhere is no substance in t;his contention, which also is rejected. In the result both these appeals are dismissed. Appeal dismissed. PRABHU ii. STATE OF U. P. (S. K. DAs, A. K. SARKAR, and M. HIDAYATULLAH, JJ;) Evidence-.M,,rder-llecovery of blood 1tained axe and clothes ai instance of acrn.11ed-Sta'emenls by accu.~ed t}1at axe was one u~th u'hich he committed murder and that blood stained clof,hes were his-Admis8ibiUty of-Indian Evidence Act, 1872 (I of 1872), s. 27. The appellant was tried and convicted for the murder of one B. The evidence against him was circumstantial and consisted of ( 1) a motive to kill B which he had in common with his father, (II) the recovery at his instance of an , axe, shirt and dhoti stained with human blood and (III) his statements made to a Sub-Inspector of Police before the recovery that the axe was one with which he had killed B and that the shirt and Dhoti belonged to him.

No independent evidence was led to prove that the axe shirt and dhoti belonged to the appellant. J!el.d, that the statem~n.ts mad~ by the appellent were madm1ss1ble and the remaining evidence was not sufficient to bring home the guilt to the appellant. The state. ments were ~ncriminating ones· made to a police officer and were !111 by ss. 25 and 26 of the Evidence Act, 19fl Jia Lal D1lh; Aim;nistro1ian MayB. 1'6t Pr.bh 814JIOf U. P: SUPREME OOURT REPORTS (1963] The Statements were not 'admiasible under s . .2.7 as they did not lead to any discovery within the meaning of that section • Puluhri Kotayya v. King Emperar, ( 1947) L. R. 74 I. A. 65, relied on. ' Stale of U. P. v. Dttnna11 Upadhya, [1961] I S. C.R. 14, distinguished. CBJ:mNALAPPELLATE JURISDICTION: Criminal Appeal No. 50 of 1962. Appeal by special leave from the judgment and order dated September 12, 1961,. of the Allahabad High Court (Lucknow Bench) at Lncknow in Criminal Appeal No. 494 of 1961.

Nuruddin Ahmed, for the appellant. G. C. Mathur and C. P. Lal,, for the respondent. 1962. May 3. The Judgment of the Court was delivered by DoaJ. S. K. DAB, J.--The learned Seeeione Judge of Rae Bareli tried the appellant Prabhu on a charg11 of murdering hie own uncle and found him guilty of the offence and sentenced him to death. There were an appeal to the High Court and ~~" usual reference for confirmation of the sentence of death. The High Court dealt with the appeal and reference by one judgment. It accepted the reference, diemieeed the appeal and confirmed the conviction and sentence. The appellant then asked for and obtained special leave of this Court to appeal from the judgment and order of the High Court. The present appeal has come to us in pursuance of the leave granted by this Court. Shortly stated the case against the appellant was this. Bhagwan Ahir, step-brother of the appt>llant'a father Budhai, was a resident of village Bandi jn the district of Rae Bareli.

The 1 appellant and his father Budhai lived in another Ptabhu village called Gulariya at a distance of about two or three miles from Bandi. Bhagwan had about SIDt,.fU.P. four bighaa of pasture land and sev:en bighaa of cultivated land. He had no male issue, He had DasJ. several daughters who were all married and reeided at the places of their respective husbands. Bhagwan was old, near about SO years of age according to the evidence of Marka, and had· no male member in the family to help him with his cultivation. Budhai, it appears, did not reside in village Gulariya all the year round, but was engaged in some job at Burdwan in Bengal, Some four years before the date on which Bhagwan was said to have been murdered the appellant and his mother came to reside with Bhagwan.

The. idea was that the appellant would be able to help Bhagwan with bis cultivation, The appellant did not, however, render much assistance to Bbagwan and the prosecution case was that after about a year of tht>ir stay, Bhagwan turned .them out of the house. The appellant and his mother then went . back to village Gulariya. The prosecution case further was that about a month and a half before the murder of Bhagwan the appellant and his father came to Bhagwan and the appellant's father asked Bhagwan to transfer some of his land to the appellant. Bhagwan said that he had already kept the appellant with him for a year and had found that he was of no assistance. He, therefore, refused to give any land . to the appellant. Bhagwan it appears, had some grand· daughters and one of them called Kumari Sarju aged about five years was staying with him. Bhagwan said that he would give hie lands to his grand-daughter Sarju.

On the night between March 19 and 20, 1961, Bhagwan was sleeping in front of hie house on q. IHI p,ablni Sl•I• of U .P. D<uJ. SUPREME OOURT REPORTS (1963] cot with his grand-dau~hter. One Naiku (P. W. I) was sleeping at a short distance from Bhagwon's house. Naiku was a neighhour of Bhagwan. At about midnight Naiku heard some noise and called out to Bhagwan. There was no re3ponse. Naiku then heard the sound of shoes as though somebody was running away from the place. Naiku called out certain other persons and went near the place where Bhagwan was lyiog on his cot. It was found that Bhagwan had a large number of injuries on the head and neck, most of the injuries· being of an incised oature. Bhagwan was already dead. The little girl Sarju though stained with blood which flowed from the body of Bhagwan was not herself injured. She was soundly sleeping on the cot and was not awake when Bhagwan was killed.

Naiku gave an information to the police station of what he had heard and seen, the distance of the police station being about eight miles from village Band!. The information which Naiku gave did not rlisclose the name of any accused person because Naiku had not seen who had killerl Bhagwan. On the information given by Naiku the local police started investigation and when the dead body of Bhagwan was brought back to the village after the post-mortem examination for cremation, the appellant, it is stated, came to one Brij Jal (P. W. 2) of village Bandi. This was on the third day after the murder. 'l'he appellant made certain enquiries from Brij Jal which roused the latter's suspicion. The Sub.Inspector of Police was then in the village and he was informed of the presence of the appellant.

The appellant was then interrogated and the case of the prosecution was that the appellant made certain statements and produced from his house a kulhari, a shirt and a dhoti These were found to be blood stained apd subsequent. examination by the Chemical SUPREME OOURT REPORTS Analyst and the Serologist disclosed that they were stained with human blood. This recovery of the blood stained kulha.ri (axe) and the blood stained shirt and dhoti was made, according to the prosecution case, on March 22, 196i, in the presence of two witnesses, Lal Babadur Singh and Wali Mohammad. It would appear from what we have stated above that the case against the appellant rested on the evidence relating to motive furnished by what happened about a month and half before the occurrence when the appellant and his father asked for some land from the deceased, and the recovery of the blood .stained . axe and blood stained shirt and dhoti from the house of the appellant.

The appellant denied that he and his father had asked for any lands from the deceased a month and a half prior to the occurrence. The appellant also denied that he had produced any blood stained axe or blood stained shirt and dhoti from his house, or . bad handed them over to the Sub.Inspector of Police, He denied that the clothes or the axe belonged to him. His defence was that he was . living with his father in Burdwan and came back to the village on March 21,1961; He said that the case against him was brought out of enmity. Learned counsel for the appellant has taken us through the evidence in the case and has submitted that apart from raising some suspicion against the appellant and his father, the evidence given hy the prosecution does not establish beyon~ any reasonable doubt t~at the appellant was tlie murderer.

He has further submitted that certain statements alleged to have been made by appellant. to the Sub-Inspector of Police in connection with the recovery of the blood stained axe and blood stained shirt and dhoti were inadmissible ~d the courts below were wrong bl relfiDJ 0'1 Prabhu Slate ofU. P. Da1J. Star. oJU. P, Dal J, SUPREME OOURT REPOR'm [1963] them. He he.s contended the.t if those statements a.re excluded from consideration, than the evidence which remains is insufficient to suport the conviction of the e.ppelle.nt. We think the.t these contentions are correct and must be upheld. There ca.n be no doubt · the.t.. Bhe.gwe.n we.s murdered on the night in question. The postmortem exe.mine.tion disclosed that he had sustained e.s me.ny as thirteen injuries, eleven of whioh were incised on different pe.rts or the body.

The injuries inflicted on the head e.nd fe.oe had cut through skull bones and 'the doctor who held the post-mortem examination was of the opinion the.t Bhagwe.n he.d died as e. result of fractures of the skull bones and he.emorrhage and shock. !l'here can, therefore, be no doubt that Bhe.gan we.s murdered. It is equally olee.r the.t nobody se.w who killed Bhe.gwan. The evidence of Ne.iku (P.W.l) shows clee.rly enough the.t neither he nor other persons whom he co.lied eaw the appellant. The gre.nd-child who we.s sleeping with Bhe.gwe.n was e.lso fast a.sleep e.nd did not even e.we.ke when the injuries were int licted on Bhagwe.n. Bhagwan might or might not he.ve re.ised shouts when the injuries were caused to him. The evidence of Ne.iku does not disclose the.t he heard any other sound excepting the sound of movement of steps of a person wee.ring shoes. We are satisfiild that the evidence e.s to motive is satisfe.otory.

Both Naiku (P.W.l) e.nd Brij Le.I (P.W.2) be.ve stated about the motive. The appellant e.nd his mother stayed with Bhagwe.n about four years ago in order to render e.ssistance to Bhagwan in his cultivation. The appelle.nt did not, however, do e.ny work e.nd we.s turned out. This is proved by the evidence of Naiku and Brij I.al. The evi· dence of the aforesaid two witnessea also establishes the.t the appellant and his· fe.ther came to Bhagwan about ·e. month e.nd a he.If before the occurrenpe and Baked for some le.nd. Bhagw!Wl refused to give any le.nd to the appellant. We ~ S.C.R. SUPREME COURT .REPORTS think that this motive has begn established even 1 though it would influence both the appellant and Prob/tu his father.

The main difficulty i~ the oa~e is that the Sl4tlo/U P. evidence reg11.rding the recovery of blood stained Da1J axe and blood stained shirt and dhoti is not very satisfactory and ihe courts below were wrong in admitting certain statements alleged to have been made by the appellant in oonnection with that reco'\"ery. According to the recovery memo the two witnesses who were present when the aforesaid articles were produced by the appellant were Lal Bahadur Singh and Wali Mohamad. Lal Bahadur Singh was exe.- mined as prosecution witness No. 4. He did give evidence about the production of blood stained articles from.his house by the appellant. The witness said that the appellant produced the articles from a tub on the eastern side of the house. The witness did not, however, say that the appellant made any statements relating to the recovery. Wali Mohammad was not examined at all. O!t-a other witness Dodi Baksh Singh was examined as prosecution witness No. 3.

This witness said that a little before the recovery the Sub-Inspector of Police took the appellant into custod,r and inter· rogated him ; then the appellant gave out that the axe with which the murder had been committed and · bis blood stained shirt and dhoti were in the house and the appellant was prepared to produoe them. These statements to which Dobi Baksh (P.W.3) deposed were not admissible in evidence. They were incriminating statements made . to a police officer and were hit by ss.25 and 26 of the Indian Evidenoe Act. The statement that the axe was one with whioh the·murder had been commit· ted was not a statement which led to any discovery within the meaning of s.27 of the Evidence Act. Nor was the ·alleged statement of the appellant that the blood stained shirt and dhoti belonged to him was Prabhu Slal1 of U. P. Da1J. SUPREME OOURT REPORTS ~1963] a statement which led to any discovery within the meaning of s.27.

Section 27 provides that when any fact is deposed to and discovered in consequence of information received from a person accused of any off~nce, in the custody· of a police officer, so mq.oh of such infqrmation1 whether it amounts to a confession or hot, as -relates. distinctly 1to the fact thereby discovery m,ay 'be prov.j'd. In Pulukuri .Kotayya v. Jr.ing Emperar (1) the Privy C<;>uncil considered the ~rtie -interpretation of s.27 and said : "It is fallacious to treat the •fact discovered~ Within the 'sectjon as equfvalent to the object produQ.ed ; the fact discovered embraces the place from which the object is produced and the knowledgo of tbe accused as to this, and the information given must relate distinctly to this fact. Info~m'ation as to.past U_!l~r,. or the past history, of the object proauced is not related .to its discovery in the setting in which it is 'discovered.

Information supplied by a person in ~us~ody that 'I will produce a knife conceal()d in t!ie roof of my house' does not lead to th'e discoyery of a knife ; knives were discovered many years ago. It leads to the discovery ·of the fact that a knife is concealed in the' house of the informant to his kuowledge. a.nd if the knife is proved to have been used in the' oommiBBion of the 'offence; the fact discovered is very relevant. But if to the statement the words be.added 1with which I stabbed A.', these words are inadmissible srnce they do not relate to the discovery of the knife in the house of ihe informant!' (p. 77) We.a:re, therefore, of the opinion that the courts below were wrorlg· in admitting in evidence the alleged statement· of the appellant that the axe had been tiaed tl>''Comniit murder ·or the statement tha._t tlie blood (1~7) L.R. 74 I.A 65. Ir: 2 $.C.R. SUPREME COURT REPoR'rS , stained shirt a.nd dhoti were his.

If these state• ments a.re excluded a.nd we think that they must be excluded, then the only evidence which remains i9 that the appellant produced from the house a blood stained a.xe and some blood stained clothes. The prosecution gave no evidence to est blish whether the axe belonged to the appellant or · the blood stained clothes were his. Therefore, the ·question before us is this. Is the production of the blood 11ta.ined axe and clothes read in the light of the evidence regarding motive sufficient to . lead to the conclusion that the appellant must be the murderer ? It is well-settled that circumstantial evidence must be much as to lead to a conclusion which on any reasonable hypothesis ia consistant only with the guilt of the accused person and not with his innocence. The motive alleged in this case would operate not only on the appellant but on his father as well.

From the mere production of the blood stained articles by the appellant one canpot come to the. conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the blood stained articles had been kept in the house, the appellant might produce the blood stained articles when interrogated by the Sub-Inspector of Police. It cannot be said that the fact of production is consistant only with the guilt of the appellant and inconstent with his innocence. We are of the opinion that the chain of circumstantial evidence is not complet.e in this case and the prosecution has unforttinately left missing links, probably because the proaecution adopted the shortout of ascribing certain statements to the appellant which were clearly· inadmissible. Learned counsel for the respondent has submitted to us tha.t in 8Wte of U.P. v. Deoman Upadhyaya (') this Court accepted as sufficient evidence (I) (1961) I S.C.R. I .. Prablm Sia" o/ U. P. Dru J. IHI Pr•blb. ~tat• of U. P. DasJ.

IHI SUPREME COURT REPOR'l'S [1963] ·the production of a blood stained weapon. We are unable to agree. The ciroumsta.ntla.I cha.in in that case did not depend merely on the production of the gandasa, but on other circumstance a.e well. The Court held in that case that the oiroumsta.ntial oha.in was complete a.nd the decision did not prooeed merely on the production of a blood stained weapon. For the reasons given above we would allow the appeal and set a.side the conviction and eentenoe pa11eed against the appellant. The appellant must now be released forthwith. A.ppeal allowed. NAND KlJMAR & OTHERS ti. STATE OF RAJASTHAN (K. C. DAS GUPTA. and J. R. MUDHOLKA.B, JJ.) Criminal Trial- Retraclld can/~ Oorroboralionnlfkiencr. The appellants were convicted under 1. 302 Indian Penl Code and also s. 377 and s. 395 of the Indian Penal Code.

The Trial Court and the High Court had based the Convict ions on the retracted confessions of each of the 6nt three appellants supported by other circumstances in evidence and o circumstantial and other evidence in the case of the four!• appellant. On special leave it was contended that the con fessions of the first three appellants were not voluntary and even if voluntarily they were not suff'iclently corroborated by other circnmstances and that the conviction of the fourth appellant was not based on sufficient evidence. ' Held, 1hat what is sufl'icient corroboration for this purpose has to be decided in each case on Its own facts and CIJ'Cumstances. It may, however, be generally stated that where the prosecution by the production of reliable evidence which is indepcadent of the confaaion and which i1 alto not lainted