iminal 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 Lucknow in Criminal Appeal No 494 of 1961
Nuruddin Ahmed for the appellant
GC Mathur and 0
P Lal for the respondent
May 3
The Judgment of the Court was delivered by SR DAS J
The learned Sessions Judge of Rae Bareli tried the appellant Prabhu on a charge of murdering his own uncle and found him guilty of the offence and sentenced him to death
There were an appeal to the High Court and the 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 dismissed 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 appellants father Budhai was a resident of 883 village Bandi in the district of Rae Bareli The appellant and his father Budhai lived in another village called Gulariya at a distance of about two or three miles from Bandi
Bhagwan had about four bighas of pasture land and seven bighas of cultivated land
He had no male issue He had several daughters who were all married and resided at the places of their respective husbands
Bhagwan was old near about 80 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 his cultivation
The appellant did not however render much assistance to Bhagwan and the prosecution case was that after about a year of their 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 appellants 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 granddaughters and one of them called Kumari Sarju aged about five years was staying with him
Bhagwan said that he would give his lands to his grand daughter Sarju
On the night between March 19 and 20  1961 Bhagwan was sleeping in front of his house on 884 cot with his grand daughter
One Naiku PW 1 was sleeping at a short distance from Bhagwan s house
Naiku was a neighbour of Bhagwan
At about midnight Naiku heard some noise and called out to Bhagwan
There was no response
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 lying on his cot
It was found that Bhagwan bad a large number of injuries on the head and neck most of the injuries being of an incised nature
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 Bandi
The information which Naiku gave did not disclose the name of any accused person because Naiku had not seen who had killed 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 postmortem examination for cremation the appellant it is stated came to one Brij lal P W 2 of village Bandi
This was on the third day after the murder
The appellant made certain enquiries from Brij lal 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 and subsequent examination by the Chemical 885 Analyst and the Serologist disclosed that they were stained with human blood This recovery of the blood stained kulhari axe and the blood stained shirt and dhoti was made according to the prosecution case on March 22 1961 in the presence of two witnesses Lal Bahadur 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 had handed them over to the Sub Inspector of Police
He denied that the clothes or the axe belonged to him
His defence was that be was living with his father in Burdwan and came back to the village on March 211961
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 by the prosecution does not establish beyond any reasonable doubt that the appellant was the 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 and the courts below were wrong in relying on 886 them
He has contended that if those statements are excluded from consideration than the evidence which remains is insufficient to support the conviction of the appellant We think that these contentions are correct and must be upheld
There can be no doubt that Bhagwan was murdered on the night in question
The postmortem examination disclosed that he had sustained as many as thirteen injuries eleven of which were incised on different parts of the body
The injuries inflicted on the head and face had out through skull bones and the doctor who held the postmortem examination was of the opinion that Bhagwan had died as a result of fractures of the skull bones and hemorrhage and shock
There can therefore be no doubt that Bhagan was murdered
It is equally clear that nobody saw who  killed Bhagwan
The evidence of Naiku PW1 shows clearly enough that neither he nor other persons whom he called saw the appellant
The grand child who was sleeping with Bhagwan was also fast asleep and did not even awake when the injuries were inflicted on Bhagwan
Bhagwan might or might not have raised shouts when the injuries were caused to him
The evidence of Naiku does not disclose that he heard any other sound excepting the sound of movement of steps of a person wearing shoes
We are satisfied that the evidence as to motive is satisfactory Both Naiku PW1 and Brij Lal PW2 have stated about the motive
The appellant and his mother stayed with Bhagwan about four years ago in order to render assistance to Bhagwan in his cultivation
The appellant did not however do any work and was turned out
This is proved by the evidence of Naiku and Brij Lal
The evidence of the aforesaid two witnesses also establishes that the appellant and his father came to Bhagwan about a month and a half before the occurrence and asked for some land
Bhagwan refused to give any land to the appellant
We 887 think that this motive has been established even though it would influence both the appellant and his father
The main difficulty in the case is that the evidence regarding the recovery of blood stained axe and blood stained
shirt and dhoti is not very satisfactory and the courts below were wrong in admitting certain statements alleged to have been made by the appellant in connection with that recovery
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 examined 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
One 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 custody and interrogated him  then the a appellant gave out that the axe with which the murder had been committed and his blood stained shirt and dhoti were in the house and the appellant was prepared to produce them
These statements to which Dobi Baksh PW3 deposed were not admissible in evidence
They were incriminating statements made to a police officer and were hit by ss25 and 26 of the Indian Evidence Act
The statement that the axe was one with which the murder had been committed was not a statement which led to any discovery within the meaning of s27 of the Evidence Act
Nor was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him was 888 a statement which led to any discovery within the meaning of s27
Section 27 provides that when any fact is deposed to and discovered in consequence of information received from a person accused of any offence in the custody of a police officer so much of such informationwhether it amounts to a confession or not as relates distinctly to the fact thereby discovery may be proved
In Pulukuri Kotayya vs King Emperor 1 the Privy Council considered the true interpretation of s27 and said  It is fallacious to treat the fact discove red  within the section as equivalent to the object produced  the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinc tly to this fact
Information as to past user or the past history of the object produced is not related to its discovery in the setting in which it is discovered
Information supplied by a person in custody that I will produce a knife concealed in the roof of my house  does not lead to the discovery 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 knowledge and if the knife is proved to have been used in the commission of the offence the fact discovered is very relevant
But if to the statement the words be added with which I stabbed A  these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant p77 We are therefore of the opinion that the courts below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to commit murder or the statement that the blood 1 1947 LR 74 IA 65 889 stained shirt and dhoti were his
If these statements are excluded and we think that they must be excluded then the only evidence which remains is that the appellant produced from the house a blood stained axe and some blood stained clothes
The prosecution gave no evidence to establish 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 stained 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 in consistent 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 cannot 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 consistent only with the guilt of the appellant and inconstant with his innocence
We are of the opinion that the chain of circumstantial evidence is not complete in this case and the prosecution has unfortunately left missing links probably because the prosecution adopted the shortout of ascribing certain statements to the appellant which were clearly inadmissible
Learned counsel for the respondent has submitted to us that in State of U P vs Deoman Upadhyaya 1 this Court accepted as sufficient evidence i  890 the production of a blood stained weapon
We are unable to agree
The circumstantial chain in that case did not depend merely on the production of the gandasa but on other circumstance as well
The Court held in that case that the circumstantial chain was complete and the decision did not proceed merely on the production of a blood stained weapon
For the reasons given above we would allow the appeal and set aside the conviction and sentence passed against the appellant
The appellant must now be released forthwith
Appeal allowed


Summary:
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
Held that the statements made by the appellant were inadmissible and the remaining evidence was  not sufficient to bring home the guilt to the appellant
The statements were incriminating ones made to a police officer and were bit by sections 25 and 26 of the Evidence Act
Statements were not admissible under section 27 as they did not lead to any discovery within the meaning of that section
Pulukuri Kotayya vs King Emperor 1947 L R 74 I A 65 relied on
State of U P vs Deoman Upadhya   distinguished