Prabhu Vs. State of U. P  INSC
196 (3 May 1962)
Evidence--Murder--Recovery of blood stained
axe and clothes at instance of accused--Statements by accused that axe was one
with which he committed murder and that blood stained clothes were
his--Admissibility 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.
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 ss. 25 and 26 of the Evidence Act.
The. Statements were not admissible under s.
27 as they did not lead to any discovery within the meaning of that section.
Pulukuri Kotayya v. King Emperor, (1947) L.
R. 74 I. A.
65, relied on.
State of U. P. v. Deoman Upadhya,  1 S.
C. R. 14, distinguished.
CRIMINAL APPELLATE 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
Lucknow in Criminal Appeal No. 494 of 1961.
Nuruddin Ahmed, for the appellant.
G.C. Mathur and 0. P. Lal, for the
1962. May 3. The Judgment of the Court was delivered
by S.R. 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
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 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 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 (P.W. 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
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
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 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 (P.W.1) 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
We are satisfied that the evidence as to
motive is satisfactory, Both Naiku (P.W.1) and Brij Lal (P.W.2) 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 (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 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
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 888 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 offence, in the custody of a police officer,-so much of
such information,.whether it amounts to a confession or not, as, relates
distinctly to the fact thereby discovery may be proved. In Pulukuri Kotayya v. King
Emperor (1) the Privy Council considered the true interpretation of s.27 and
"It is fallacious to treat the 'fact
discovered' 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
distinctly 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
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." (p.77) 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) L.R. 74 I.A 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 short out 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. v. Deoman Upadhyaya (1) this Court
accepted as sufficient evidence (i) (1961) 1 S.C.R. 14.
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.