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PETITIONER: RAGHAV PRAPANNA TRIPATHI

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 04/05/1962

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR DAS, S.K. KAPUR, J.L. SARKAR, A.K. HIDAYATULLAH, M.

CITATION:  1963 AIR   74            1962 SCR  (3) 239

ACT: Circumstantial   evidence--Murder--No   direct    evidence-- Sufficiency  of proof--inference from  absconding--Inference from  non--recovery  of jeep--Inference  from  presence   of accused  in  house where murder was alleged  to  have  taken place--Indian Penal Code, ss. 176, 201, 302.

HEADNOTE: The appellants were prosecuted and committed to the Sessions for  trial.   Raghav was convicted and  sentenced  to  death under  s. 302, I.P.C. He and Jai Devi, his  mother,  Ramanuj Das,  Mohan  Singh  and Udham  Singh  were  convicted  under section  201  IPC.   Ramanuj Das was  also  convicted  under section  176 IPC.  Their appeals were dismissed by the  High Court.   They  came  to this court by  special  leave.   The appeal of Raghav, Mohan Singh and Udham Singh was allowed by majority, that of Ramanuj Das and jai Devi for offence under s.  201, IPC was allowed unanimously and appeal  of  Ramanuj Das for offence under s. 176 IPC was allowed by a majority. Held (Kapur and Hidayatullaha, JJ dissenting) that there was no  direct  evidence about Raghav committing the  murder  of Kamla  and Madhusudan.  There was no direct  evidence  about his carrying away their dead bodies in the jeep.  There  was no  direct evidence about Ramanuj Das or any  other  accused being  a  party to the removal of the dead bodies  from  the house.    The  entire  case  was  based  on   circumstantial evidence.  The circumstances proved against Raghav were  not sufficient to support the finding that he had committed  the murder.   The mere absconding may lend weight to  the  other evidence establishing the guilt of the accused but by itself that  is hardly any evidence of guilt.  It was too  much  to conclude  from the non-recovery of the jeep that if  it  had been recovered, it would have afforded evidence of existence of  human blood-stain and of its having been used to  remove evidence  of murder.  That circumstance had  no  evidentiary value.  There was no evidence about the part Ramanuj Das  or Jai  Devi  played  in  the  removal  of  the  dead   bodies. The  .fact  that  they  were in the  house  and  could  have possibly  known of the removal of the dead bodies,  if  that

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was a fact 240 would  not  by itself establish that they  assisted  in  the removal if the bodies.  The conviction of the appellant was not justified on the material on record. Per  Kapur  and  Hidayatullah JJ.   The  strained  relations between husband and wife, the motive to escape the giving of money and land as maintenance to the wife or child, suddenly leaving  the  village at night with two  others  and  almost simultaneous  disappearance of Kamla and her son, no  search for  her  and absolute callousness on the  part  of  Raghav, giving of false explanation later on and his absconding were circumstances from which the Courts below were justified  in concluding  that Kamla and her son were murdered and  Raghav bad  a  predominant  motive  to  commit  the  murder.    The inculpatory facts proved against Raghav were not capable  of explanation  on any other hypothesis except his guilt.   The Courts below bad applied correct principles and found Raghav guilty  and  there  was no reason  to  disagree  with  their conclusions.    The  non-production  of  the  jeep   was   a circumstance  against  Raghav which the  Courts  below  were entitled to take into consideration.  Articles like jeeps do not  just disappear in thin air and when they  do  disappear and  cannot be traced and when the allegation is  that  they have  been used for carrying away the dead  bodies,  their nonproduction  or  their not being found is  a  circumstance which a Court can take into consideration in determining the guilt of an accused person. No case under section 201 of the Indian Penal Code had  been made out against Ramanuj Das and jai Devi.  What section 201 requires  is causing any evidence of the commission  of  the offence  to disappear or giving any  information  respecting the  offence which a person knows or believes to  be  false. It  was  not proved that the two appellants had  caused  any evidence to disappear.  There may be a strong suspicion that if  from  the house dead bodies were removed  or  blood  was washed,  the  persons  placed in the  position  of  the  two appellants  must  have  had a hand in  it,  but  still  that remains  a  suspicion, although a strong  suspicion.   There mere  absconding  would  not  fill the  gap  or  supply  the evidence  which  was necessary to prove the  ingredients  of section 201. Anant  Chintaman Lagu v. The State of Bombay., [1960] 2  S.C R.  460, Govinda Reddy v. The State of Mysore,  A.I.R.  1960 S.C. 29, Stephen Seneviratnan v. The King, A.I.R. 1936  P.C. 289, Towell’s case, (1854) 2 C & K 309, Rex v. Horry, [1952] N.Z.L.R.  11  , Regina v. Onufrejczyk, (1955)  1  Q.B.  338, relied upon.  241 Rex V. Hodge, (1833) 2 Lew. 22 7, referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 72  of 1962, Appeal  by special leave from the judgment and  order  dated February  8, 1962, of the Allahabad High Court  in  Criminal Appeals  Nos, 1728 and 1739 of 1961 and Referred No. 125  of 1961. Jai  Gopal  Sethi, A.N. Mulla, J.B. Goyal, C.L.  Sareen  and R.L. Kohli, for the appellants, G.C. Mathur and C.P. Lal, for the respondent, 1962.  May 4. The Judgment of Das.  Sarkar, Dayal, JJ.,  was delivered   by   Dayal,  J.  The  Judgment  of   Kapur   and

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Hidayatullah, JJ., was delivered by Kapur, J. RAGHUBAR   DAYAL,   J.-Raghav  Prapanna   Raghul   Tripathi, hereinafter called Raghav, Ramanuj Das, Jai Devi, Mohan  and Udham  Singh, appeal by special leave against the  order  of the High Court of Allahabad, dismissing their appeal against their conviction by the sessions Judge, Etawah, Raghav,  was convicted  and sentenced to death under s. 302 1. P.  C.  He and the other apppellants were also convicted of the offence under  s.  201  I. P. C. Ramanuj Das was  convicted  of  the offence under a. 176 1. P. C. also. The prosecution case, in brief, is that Raghav shot dead his first  wife Kamla, and their son Madhusudhan, aged  about  4 years,  at about sunset on April 5, 1961, at their house  in village Hamirpur Roora, District Etawah The motive for  this conduct is "id to be Raghav’s not caring for Kamla and  ill- treating  her after his marrying one Bimla in  1954.   Kamla had to go to her father’s place and stay there for about two years on account of the alleged ill-treatment she got at her husband s 242 hands.   She was, however, brought back by Ramanuj  Das,  in 1960.   He assured her father that she would be well  looked after  and that he would transfer 90 bighas of land  to  her and pay her  Rs. 10,000/-. It is also alleged that earlier in the day on April 5,[1961] Ramanuj Das bad ultimately promised to Lakhan Prasad that he would   execute  the  necessary  transfer  deed  on   Monday following  and  that  Raghav left  the  place  during  their conversation  in this regard.  It is alleged that he did  so as he resented the idea of so much property and cash,  which would  have  ultimately benefited him, being  made  over  to Kamla.   This resentment is said to have prompted Raghav  to murder his wife and son that evening. We  may now mention facts to show the connection of  Ramanuj Das and other accused with Raghav which is said to have  led them  to  be parties to the disappearance  of  the  evidence about  the  murders in order to protect  Raghav  from  legal punishment and thereby to commit the offence under s. 201 1. P.  C. Lachman Das was the Mahant of the temple  in  village Hamirpur Roora.  Narayan Das, father of Raghav, and  Ramanuj Das were his disciples.  On Lachman Das, death, Ramanuj  Das succeeded  him as Mahant, though Narayan Das was the  senior disciples,  as  Narayan  Das  bad  taken  to  secular  life. Ramanuj  Das, Raghav, Jai Devi, mother of Raghav.   Raghav’s wife  Kamla,  and Madhusudhan, all lived as  a  joint  Hindu family  in the house in which there was the  temple.   Mohan Singh  was a servant of Ramanuj Das.  Udham Singh  was  also alleged to be a servant of Ramanuj Das. Raghav  mostly lived at Lucknow with Bimla and  his  sisters who were studying there.  He is 243 a law graduate.  He possessed a jeep car whose  registration number was U. S. J. 3807. No  information was conveyed by anyone to the  police  about the numbers for about two days.  Khushali, Chaukidar, lodged a  report at 9.20 a. m. on April 7, 1961, at police  station Airwa  Katra, District Etawah.  The Station Officer was  not present at the police station.  This report may be  usefully quoted here:               "Day  before yesterday in the night Raghav  of               my  village, who is a son of Narain  Das,  has               murdered his wedded wife and son by firing  at               them  with the gun of Mahant Ramanuj Das.   He               has gone somewhere with the two dead bodies in               a  car.   There is a rumour about, it  in  the

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             whole  of the village.  Having heard of it,  I               went to the Mahant who is also the Pradhan  of               my village.  I asked him to give me  something               in  writing, so that I would go to the  Police               Station  and make a report.  The  Mahant  then               asked  me to wait and to go only after  Thakur               Dalganjan Singh had some.  I did not listen to               him,  although he kept on forbidding.  I  have               come to make a report." Sub-Inspector  Brij Raj Singh Tomer, Station Officer,  Airwa Katra, received the copy of the first information report  at 11 a. m., and immediately proceeded to the spot and  reached there  at 2 p. m. He inspected the house of Ramanuj Das  and prepared the site plan.  He suspected blood stains at  about 11  places in the house and took the stained  plasters  from those places and put them in different packets.  All the  11 packets were then sealed in a single bundle. The  Chemical  Examiner  found the plasters in  5  of  these packets to be stained with blood.  The 244 Serologist  could not determine the origin of the  blood  on account of its disintegration. The  positions  of the plasters found bloodstained  are  not clearly made out from the various documents, but, in view of the  fact that 11 stained plasters were taken in  possession from  over the door in the front wall of the southern  outer room  or from its floor or its wall, that at least 2 of  the blood  stained  plasters were from the southern  outer  room portions,  even  if the other three blood  stained  plasters were  from the outer wall of the northern room, the roof  of the temple and the floor of the southern inner room. Sub-Inspeotor  Brij Raj Singh Tomer did not find any of  the appellants in the village. On April 12, 1961, Bashir Hussain, Deputy Superintendent  of police, visited the spot and  recovered   suspected   blood- stained earth from  the  parnalas of the roof of  the  house and  also from the land on which the water of  the  parnalas fell.   He  took  7 samples of such earth,  put  them  in  7 packets and sealed them in a bundle.  The Chemical  Examiner found  the  earth  of two such packets to  be  stained  with blood.  Again, the Serologist could not determine the origin of blood due to disintegration. On  April 16, 1961, Bashir Hussain recovered Raghav’s  shirt and  pyjama from Snowhite, Cleaners & Dyers at  Lucknow,  as they were suspected to be stained with blood.  No blood  was detected  on the pyjama.  The Chemical Examiner found  blood stains  on the shirt.  The Serologist could not  detect  the origin of the blood. The  police failed to discover the dead bodies of Kamla  and Madhusudhan and also the jeep car. 245 Raghav  surrendered  in  the Court  of  the   Magistrate  at Barabanki  on  April  20.  Mohan was arrested  on  April  9, Ramanuj  Das  surrendered  in  the  Court  of  the  Judicial Officer,  Bidhuna, on April 24, 1961, Jai Devi  applied  for bail on April 27, presumably, she surrendered on that day. As  a result of the investigation, the appellants were  sent up for trial.  All the appellants denied that they committed the  offences  with and stated that they  had  been  falsely implicated. There  is no direct evidence about Raghav’s  committing  the murder  of Kamla and Madhusudhan.  Neither is  there  direct evidence  about his carrying away the dead bodies  of  Kamla and Madhusudhan in the jeep that night from village Hamirpar Roora  as alleged for the prosecution.  There is  no  direct

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evidence  about  Ramanuj Das or any other  accused  being  a party to the removal of the dead bodies from the house.  The entire case against the appellants depends on circumstantial evidence. We  may  deal  with  the  circumstances  which  the  learned Sessions Judge and the High Court found established and from which   they  concluded  that  Raghav  murdered  Kamla   and Madhusudhan  and  that thereafter, Raghav, Mohan  and  Udham Singh,  with  the connivance of Ramanuj Das  and  Jai  Devi, carried  away  the dead bodies in the jeep and  disposed  of them. These circumstances are-               1.  On  April 5, 1961, Kamla  and  Madhusudhan               were in the house of Ramanuj Das.               2. Kamla and Madhusudhan were last seen  alive               on April 5, 1961, in the evening.               3. On April 5, 1961, Raghav Prapanna was  also               in the house of Ramanuj Das. 246               4. On April 5, 1961 at about 5 or 6 p.m. three               gun  shots were fired on the roof of   Ramanuj               Das.               5.  On April 5, 1961, at about 9 or 10  p.  m.               Raghav  Prapanna, Mohan and Udham  Singh  left               village Hamirpur Roora on the jeep of Raghav.               6. On April 5, 1961, at about 11 p. m.  Raghav               Prapanna purchased petrol from Bidhuna  Petrol               Pump.               7.  On  April 6, 1961, at about 8.  30  a.  m.               Raghav Prapanna crossed.  Rawatpur barrier  in               Kanpur.               8.  On  April 6, 1961, Raghav Prapanna  got  a               post  card sent by his sister that  Kamla  had               reached Lucknow safely.               9.  On April 7, 1961, blood-stained earth  was               recovered  from the house of Ramanuj Das  from               11 different places.               10. On April 14, 1961, blood-stained earth was               recovered from the house of Ramanuj Das from 7               different places.               11.  All  the  accused  absconded  after   the               alleged murder.               12.  Blood-stained shirt and pyjama  belonging               to  Raghav  Prapanna were recovered  from  the               possession  of Snow-white Dyers and  Cleaners,               Lucknow.               13. The police could not trace out the jeep of               Raghav Prapanna in spite of beat efforts. On  behalf  of  the appellants it is  not  dispute  hat  the circumstances numbered 1, 2, 7, 9, 10, 1 247 and  13  have  been established.  It is  contended  for  the appellants that the other circumstances have not been proved and  that, even if proved, all the  aforesaid  circumstances are insufficient to lead to the sole conclusion that  Raghav committed  the murders of Kamla and Madhusudhan and that  he and the other appellants were parties to the removal of  the dead bodies. Kamla  and Madhusudhan were in the house on April  5,  1961. They were not seen after the evening of April 5, 1961, The  third circumstance is disputed, Raghav states  that  he had left Hamirpur Roora on April 4. This finds support  from the  statement of Sri Ram, P.W. 3, that he had  seen  Raghav pass  via  Samain  in a jeep that night.   He  saw  this  on Tuesday, April 4, 1961 was a Tuesday.  Even if he was in the

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village  on April 5, his presence in the house does not  put him  in  such  a  position  that  his  omission  to  furnish information  about the whereabouts of Kamla and  Madhusudhan or  as  to  what  happened  to  them  should  point  to  his committing their murders.  He was not the only person in the house  to know of what happened to them.  There  were  other persons  in the house.  It is true that the circumstance  of his presence in the house and the absence of any activity on his part to make enquiries about Kamla and Madhusudhan  when they  were  not seen in the house on April 6, is  a  conduct which is not expected from a husband, even if the  relations between the husband and the wife be strained. The  fourth  circumstance that three gun shots  ,were  fired from the roofs of Ramanuj Das at about 5 or 6 p.m. on  April 5, cannot lead reasonably to the only conclusion or even  to a  reasonable  suspicion that Raghav did fire  those  shots, that he 248 fired  them in the room and that he shot dead his  wife  and son  by that firing.  The connection between the  firing  of gun  shots from the side of the roof of Ramanuj Das and  the alleged  murders, seems to us to be too remote to arrive  at the conclusion that Raghav had killed his wife and son- In   this  connection,  reference  may  also  be   made   to circumstances Nos. 9 and 10, relating to the recovery of the bloodstained earth from the house.  The blood-stained  earth has not been proved to be stained with human blood, Again we are of opinion that it would be far-fetched to conclude from the mere presence of blood-stained earth that that earth was stained  with  human blood and that the human blood  was  of Kamla and Madhusudhan.  These circumstances have; therefore, no evidentiary value. The  facts  that Kamla ’and Madhusudhan have not  been  seen since the evening, of April 5, 1961, and that blood  stains, not  proved to be of human origin, were found in that  room, are  not  sufficient for holding that they  must  have  been murdered, however strongly one may suspect it in view of the unlikelihood  of their having left the house for  any  other place. In   this  connection,  reference  may  also  be   made   to circumstance  No.  8. Exhibit Ka-7 was addressed  by  Govind Kumari,  sister of Raghav, to Ramanuj Das on April 6,  1961, from  Lucknow.  It is stated in this post-card  that  Raghav etc.,  had  arrived  safely and that  as  ’bhabi’  had  also arrived,  it was not necessary for her to cook  food  etc.’. This letter, according to the post-mark, reached Samrin Post Office on April 10, and was not delivered till April 13,  to the  addressee,  as he was not present, and  was  ultimately handed over to 249 the Deputy Superintendent of Police, in compliance with  the orders  of  the Magistrate. under s. 95, Cr.  P.  C.  It  is alleged  that this letter was written at the instigation  of Raghav  in order to prepare evidence about Kamla’s  reaching Lucknow  on April 6. There is however no evidence on  record about  Raghav’s having a hand in the sending of this  letter by  Govind  Kumari.   She  was not  examined  to  prove  the contents  of her letter and to explain to whom she  referred to  as bhabi’ Raghav has stated that he had gone to  Lucknow along  with Rama Sewak’s wife, whom he also  called  bhabi’. That may be true or not.  The fact remains that there is  no evidence  that  Govind  Kumari wrote this  postcard  with  a purpose  and at the instigation of Raghav.  The  evidentiary value  of  this  postcard is nil and  the  conclusions  that Raghav got this. letter sent is not justified when there  is

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no  evidence to that effect and there is no  definite  proof that the expression bhabi’ referred to Kamla. Support    for.   the   inference   that   the    expression ’bhabi’referred to Kamla has been found, by the Court below, from complete omission to Govind Kumari’s sending wishes  to Kamla  and Madhusudhan, as it is expected that if  she  knew that  they were at Hamirpur Roora, she  would have  conveyed her wishes to them.  One can normally expect this, but it is in the statement of Lakhan Prasad, P. W. 6, that there could not  have  been  good relations between  Govind  Kumari  and Kamla.   Lakhan Prasad deposed that on his asking Kamla  the cause  of her unhappiness for the last four years, she  told him that one Sub-Inspector Iqbal visited her father-in-law’s place and had illicit connection with Govind Kumari and that these  persons, together with Raghav, used to take wine  and meat in the temple.  She further told him that her complaint to her mother-in-law in this respect 250 went un-heeded.  It follows, therefore, that omission of the usual courtesies in the postcard from Govind Kumari need not lead to the conclusion that it was on account of the attempt to  show, when need be, that Kamla and her son  had  reached Lucknow and were alive on April 6, 1961. Circumstances 5 and 6, by themselves, are not sufficient  to lead to the conclusion that Raghav had taken the corpses  of Kamla  and Madhusudhan in the jeep from the village  on  the night  of  April 5, 1961, when there is no evidence  of  any witness about seeing any such things in the jeep which might reasonably  lead  to the inference that they  contained  the dead bodies. The 7th circumstance, does not in any way go against Raghav, as  he himself admits to have gone to Lucknow  from  village Bhuwain  on  April  6,  1961.  In doing  so  he  would  pass Rawatpur barrier.  This circumstance, in a way, supports his version and has nothing incriminating in itself. The 11th circumstance, as stated, is not quite correct.  All the  accused  did  not abscond after  the  alleged  murders. Ramanuj  Das himself was in the village till the morning  of April 7, according to the statement of Khushali,  Chowkidar, who  lodged the first information report.  If he and  others left  the  house after knowing of the report lodged  by  the chowkidar,  that  is understandable.  The  mere  absconding, however, may lend weight to the other evidence  establishing the  guilt  of the accused, but, by itself,  is  hardly  any evidence of guilt. The  12th circumstance, is about Raghav’s shirt being  found to  be  stained with blood by the Chemical  ’Examiner.   The bloodstain  has not been proved to be of human  origin.   In the  circumstances,  this circumstance  has  no  evidentiary value in 251 connecting  Raghav with the offence of murder.   Further,the shirt  was recovered from the Dry Cleaners on April 16.   It was  given  to them on April 9. The murder is said  to  have taken  place on April 5. Bloodstain on the shirt could  have been  due to reasons other than Raghav’s taking part in  the murder of his wife and son. In this connection, reference must be made to the  statement of  Babu  Lal,  P.  W. 7, the  proprietor  of  the  Snowhite Cleaners & Dyers to the effect that when Raghav gave him the shirt  for  washing it was not blood-stained.  He  has  also stated   that  even  when  the  Sub-Inspector  took  it   in possession,  it  was  not  blood-stained.   The  High  Court considered  Babu  Lal’s  statement to be untrue  as  he  had signed  the  recovery list which stated that the  shirt  had

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stains  suspected  to be washed bloodstains.  There  was  no statement that the shirt had bloodstains on April 9 when  it was  given  for  washing.  Further, if the  signing  of  the recovery  list by Babu Lal as a witness to the  recovery  be taken  to  be  his statement about the  correctness  of  its contents,  that statement would be inadmissible in  evidence in view of s. 162, Cr.  P. C. The  last circumstance, as a piece of evidence  against  the accused, is that the police could not trace out the jeep  of Raghav  in  spite  of best efforts.  The  inability  of  the police  to  find the jeep does not prove that the  jeep,  if found,  would  have  furnished evidence  against  Raghav  by showing the existence of human blood-stains on its parts and thereby indicating that it was used in removing the corpses. If  it  had been recovered and human  bloodstains  had  been found on it, there would have been some evidence against the accused  about  the jeep having been used for  removing  the dead  bodies.  But it is too much to conclude from the  non- recovery of the jeep that if recovered 252 it  would  have  afforded evidence  of  existence  of  human bloodstains  and  thus  of its having been  used  to  remove evidence  of  murder.  This circumstance  has  therefore  no evidentiary value. In this connection, we must refer to the unusual conduct  of the  Magistrate in forwarding the letter of request  by  the Investigating officer under a. 94 Cr.  P. C., to the Jailor, requiring  Raghav to convey information in whose  charge  he left his jeep No. 3807 while surrendering in Court at  Bar&- banki,  and  the whereabouts of the jeep at the  time.   The Investigating Officer could have interrogated the accused in jail, as is usually done, of course, with the permission  of the Magistrate.  But, to attempt to get written replies from the  accused, is unusual, if not unwarranted under the  Code of  Criminal  Procedure.  Any way, any reply  given  by  the accused to such a query of the Investigating Officer, cannot be  used  in  evidence  in view of a. 162  of  the  Code  of Criminal Procedure. We have now dealt with the pieces of circumstantial evidence which  were accepted by the Courts below and are of  opinion that  those circumstances are not sufficient to support  the finding  that  Raghav  committed the  murder  of  Kamla  and Madhusudhan. The facts alleged to constitute motive for Raghav to  commit the  murders  do  not necessarily  provide  such  a  motive. Raghav married Bimla in 1954 and for seven years he  appears to have continued his marital relations with Kamla as  well. Madhusudhan  was  born in 1957.  He may not be  showing  the same affection to Kamla after his marriage with   Bimla   as before.  There might have been something of an  estrangement in his relations towards her. But all this would not  afford a motive for murdering her, and also their son  Madhusudhan. The suggestion to Ramanuj Das to TOY 253 Rs. 10,000/- to Kamla and also to transfer 90 Bighas of land to her, even if true, need not have caused such a resentment to Raghav as to decide on murdering his wife and son.  There is nothing on the record to indicate how such a transfer  of cash and property would affect the total property of Ramanuj Das,  and how, ultimately, Raghav would be affected  by  it. Apparently, Raghav would have no claim to the property  left by  Ramanuj  Das  as a mahant of the mutt  or  temple.   The property  would go to the successor of Ramanuj Das.   Raghav who  was  leading a secular life, will dot  succeed  to  the Mahantship,  just as his father Narain Das, though a  senior

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disciple of Lachman Das, did not succeed to it.  His leaving the  place when Ramanuj Das was approached by Lakhan Das  to transfer  cash  and  land to  Kamla,  does  not  necessarily indicate that he left as he resented the suggestion.   There is  no  evidence that he raised any protest at the  time  or indicated  by any expression that Ramanuj Das should not  do so.   We do not consider it reasonable to conclude from  the mere  fact  of  his leaving the place, that  be  did  so  on account of such keen resentment as would make him commit the murders of his wife and son. Lastly, there is no such circumstantial evidence which would establish that the appellants had removed and concealed  the dead  bodies.   We have already referred to the  absence  of evidence  about  the dead bodies being carried in  the  jeep that  night by Raghav.  There is no evidence about the  part which  Ramanuj Das or Jai Devi played in the removal of  the dead bodies.  The fact that they were in the house and could have  possibly known of the removal of the dead  bodies,  if that  was  a fact, would not by itself establish  that  they assisted in the removal of the bodies.  We are therefore  of opinion that no offence under a. 201 254 I. P. C. has been established against the appellants. Further. no offence under s. 176 1. P. C. can be held proved against  Ramanuj Das when there is no proof that  Kamla  and Madhusudhan  were  murdered.   As a member  of  the  village Panchayat he was bound to convey information to the  nearest Magistrate  or  Officer-in-charge  of  the  nearest   Police Station about the commission of an offence under s. 302,  1. P.  C., only when a murder. had been committed and  he  know about it. The conviction of the appellants for the various offences is therefore  not  justified  on the material  on  record.   We therefore  allow the appeal, set aside their conviction  and acquit  them  of the offences they have been  convicted  of. They  will  be  released  forthwith  from  custody,  if  not required to be detained under any other process of law. KAPUR,  J.-This is an appeal against the judgment and  order of the High Court of Allahabad confirming the conviction and sentences  passed  on  the appellants.   Of  the  appellants Raghav Prapanna Tripathi was convicted of murdering his wife Kamla  and  his son Madhusudhan on the evening of  April  5, 1961  at Hamirpur Roora and was sentenced to death.  He  and other  appellants were also convicted under s.  201,  Indian Penal Code for causing the disappearance of the evidence  of the  crime  and  were  sentenced  to  five  years’  rigorous imprisonment.   Appellant Ramanuj Das was further  convicted under  a. 176, Indian Penal Code and sentenced to 3  months’ rigorous imprisonment. The  conviction is based on circumstantial  evidence.   This Court  in Anant Chintaman Lagu v. The State, of  Bombay  has laid down the princi- (1) (1960)2 S.C.R. 460. 255 ples which govern such cases.  In that case Hidayatullah J., at  p.  516  quoting  the observations  of  Baron  Parke  in Towell’s  case(1)  where  the learned Baron  laid  down  the principles  applicable  to  such  cases  observed  that  any circumstance which destroys the presumption of innocence, if properly  established can be taken into account to find  out if  the  circumstances  lead to no other  inference  but  of guilt.   Thus  what  we have to see is  whether  taking  the totality of circumstances which are held to have been proved against  the  appellants  it can be said that  the  case  is established   against   the  appellants   i.e.   the   facts

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established  are  inconsistent with the  innocence-  of  the appellants  and incapable of explanation on  any  hypothesis other  than that of guilt.  See also Govind Reddy, State  of Mysore(2).   It  may also be observed here  that  ordinarily this court does not reassess the evidence and reexamine  the findings  reached  by the courts  below  particularly  where there  are  concurrent findings of fact, but  it  was  urged before  us  that this is one of those cases where  the  rule laid down by the Privy Council in Stephen Seneviratne v. The king  (3) applies i.e. on the evidence taken as a ,whole  no tribunal could as a matter of legitimate inference arrive at the   conclusion  that  the  appellants  are  guilty.    The inference  of guilt of the appellants has been drawn from  a number of circumstances which, according to the  appellants, do  not  lead to the irresistible conclution that  they  are guilty  and which, according to the submission of  the  res- pondent, lead to only one conclusion and one alone that  the appellants  have been rightly convicted and  sentenced.   In order to satisfy ourselves at to the guilt of the appellants we  have  found  it expedient in this case to  go  into  the evidence and see whether the conviction is rightly based. (1)  (1854) 2 S.C.R. 309).     (2) A.I.R. 1960 S.C. 29. (3)  A.I.R, 1931 P. C. 289, 299. 256 In village Hamirpur Roora which is in Itawah district  there is  a  religious institution of which Lachhman Das  was  the Mahant.  He had two chelas (disciples) tHe elder was  Narain Das and the younger Ramanuj Das who is one of the appellants in  the  present  case.   Narain Das  got  married  and  was therefore  excluded from succession.  His wife is  Jai  Devi who  is  also  an appellant and they  has  several  children amongst whom is their son Raghav who is another appellant in the  case and they have got younger sons and some  daughters amongst  whom  we  need only mention Govind  Kumari  who  is M.A.LL.B.  of  the Lucknow University but she is  neither  a witness  nor an accused in the case.  The other two  accused are  Mohan Singh and Udham Singh who are retainers  (if  the Mahant.   Raghav in the year 1950 was married to  Kamla  who was  the  daughter  of Rain Sarup,  a  well-to-do  gentleman living  in another village.  In 1954 Raghav married  another girl  who  is also an M.A., LL.B. and she  and  Raghav  with Govind Kumari and other sisters were living at Lucknow in  a flat  in Shankarpuri.  The case for the prosecution is  that after  the marriage the relations between Kamla,  the  first wife, and Raghav were stained and she was ill-treated by her husband and Kamla had to leave her father-in-law’s house and to go and live with her father in his village.  Before  this Kamla and Raghav bad a son Madhusudhan who was born in 1957. While Kamla was staying with her father, P.W. Lakhan  Prasad intervened  and suggested to Ramanuj Das appellant to  ’give to  Kamla Rs. 10,000 in cash and 90 bighas of land and  this was  agreed to by Ramanuj Das and on this assurance  Ramanuj Das  went to Kamla’s father’s house and brought  back  Kamla after  the  Bidai ceremony was perform. ed. It  has  I  been stated in the evidence of Ram Sarup which has been  accepted by the High Court that Ramanuj Das himself had told him (Ram Sarup) that the money and the land would be given. 257 Sometimes  in  February  1961 i.e. about a  month  and  half before the date of the alleged occurrence Ram Sarup went  to the  house of Ramanuj Das along with Lakhan Prashad P.W,  He asked Ramanuj Das to execute the document in respect of the property and also in regard to the money and they were  told by Ramanuj Das that after Raghav returned from Lucknow  this would  be  done.  After having this talk  Ramanuj  Das,  Ram

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Sarup  and Lakhan Prasad met Kamla in the house  of  Ramanuj Das  and  apprised her of this arrrangement.  On  April,  4, 1961 Lakhan Prasad came to know about the arrival of  Raghav and  on  the  following day i.e. April 5, 1961  he  want  to Vamanuj Das as he had been instructed by Ram Sarup and there he  found both Ramanuj Das and Raghav.  Lakhan  Prasad  then asked  Ramanuj Das that the promise in regard  to  Rs.10,000 and  90  bighas  of  land should  be  carried  into  effect. Thereupon it is stated that Raghav got up abruptly and left, the  place but Ramanuj Das promised to execute the  document on the day Ram Sarup could come.  Lakhan Prasad told Ramanuj Das that he would go to Ram Sarup on Saturday i.e. April  8, 1961  and bring him on the following day i.e. April 9,  1961 and  then  the document could be executed on  Monday,  April 10,1961.   This  arrangement  was accepted  by  Ramanuj  Das Lakhan Prasad then went and informed Kamla about it. According to the prosecution both Kamla and Madhusudan  were murdered with gun shots sometime in the evening of April  5, 1961,  the day the above’ talk took place.   These  gunshots were heard by three witnesses.  The same evening Raghav left Hamirpur Roora by jeep accompanied by appellants Mohan Singh and Udham Singh ’I hey were seen passing through the village Samain  at  about  9 O’clock by P W.  Sri  Ram.   They  then proceeded  to  Bidhupa where petrol was purchased  from  the shop of one Rain Bhajan P.W. This was at about 258 11  P.M. Ram Bhajan saw two other persons in the jeep  which was being driven by Raghav.  They then crossed the Ganga  at Kanpur  at the Rawatpur Barrier at 8.30 a.m. and from  there proceeded  to Lucknow, A post card was sent from Lucknow  on April  6, 1961 by Govind Kumari in regard to the arrival  of Raghav and others. It  is not disputed that Kamla and Madhusudan were not  seen alive  after the evening of April 5, 1961.  As a  matter  of fact it is admitted that she became "traceless" after Raghav left  Hamirpur Roora.  On April 7, 1961, Khushali  Chowkidar of the village made a First Information Report at the police station to the following effect.               "Day  before yesterday in the night Raghav  of               my  village,,  who is son of Narain  Das,  has               murdered his wedded wife and son by firing  of               them  with the gun of Mahant Ramanuj Das.   He               has  gone some where with the two dead  bodies               in  a car.  There is a rumour about it in  the               whole  of the village.  Having heard of it,  I               went to the Mahant who is also the Pradhan  of               my village.  I asked him to give me  something               in writing, so that I should go to the  Police               Station  and make a report.  The  Mahant  then               asked  me to wait and to go only after  Thakur               Dalganjan Singh had come.  I did not listen to               him,  although he kept on forbidding.  I  have               come to make a report". The Sub-inspector-in-charge of the Police Station had-  gone in  connection  with some official duty  and  therefore  the above information was sent to him by the police.  He came to Hamirpur Roora at about 2 p.m. and inspected the house where the  deceased was residing.  According to his  statement  he did  not find any one in the house; he took  some  witnesses along  with him and made a search of the house and there  he found some patches 259 which  looked like blood on the terrace and in the rooms  of the  first  floor.   He  prepared a site  plan  and  made  a memorandum  of  what he saw there.  This site plan  and  the

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memorandum that he prepared have been proved.  He took  into possession blood stained plaster pieces from II places  from inside the room, put them into separate packets and made the packets  into  a bundle and sealed it.  On  April  12,  1961 Police Deputy Superintendent Bashir Hussain took in and  the investigation  and came to the place of the  occurrence  and found seven other places where there were marks which looked like  blood  marks and he took the  earth  into  possession. These  included places like Parnalas (water  spots).   These were  also made into a sealed parcel but  unfortunately  all these  articles were not sent to the Chemical Examiner  till May  25, 1961 and when examined out of 11 pieces  which  had been  collected by the Sub-lnspector five were found  to  be bloodstained  and  of out seven pieces collected  by  Deputy Superintendent  Bashir  Hussian only two were  found  to  be bloodstained.    When  these  articles  were  sent  to   the Serologist the origin of the blood could not be  ascertained as the blood by that time had disintegrated. The  Sub-Inspector  searched for the,  accused  persons  but could not find any one at the house or at other places.   On April  10,  1961 he arrested Mohan Singh appellant  but  the others   could  not  be  traced.   They   excepting   Raghav surrendered   themselves   on   different   dates   in   the Magistrate’s court in the district of Etawah Ramanuj Das  on April  24  and  Jai Devi on  April  27.   The  Sub-Inspector started  a  search for Raghav, looked for him  in  different places in Lucknow but he could not find him nor was his jeep found.   April 20, 1961 Raghav surrendered in the  court  of the Magistrate at 260 Nawabganj in the district of Barabanki.  In the  application he stated as follows:-               "2. That Srimati Kamla daughter of Ram  Swarup               of  village Manchhana, P. S. Kotwali  District               Mainpuri,  residing  in my  house  has  become               traceless along with her minor son and in this               connection a strong rumour has been set afloat               by  the enemies of the applicant’s  family  to               the effect that she has been murdered." He  also stated that his name was being associated with  the murder  because  of enmity. AD Affidavit was  filed  in  the court  of  the  Magistrate by Govind Kumari  sister  of  the appellant  in  which it was stated that Kamla had  run  away from the house of Ramanuj Das after stealing ornaments.  The jeep in which Raghav had left Hamirpur Roora Was never found in spite of the best efforts of the Police. During  the  course  of  their  investigations  the   police recovered  from the laundry of on Babulal P.W. in Lucknow  a shirt  and  a pyjama belonging, to  appellant  Raghav.   The police thought that there were blood marks both on the shirt as  well as the pyjama but the Chemical Examiner only  found three minute size bloodstains on the shirt but the origin of this  blood  also could not be discovered as the  blood  had disintegrated.   The appellants were then tried  before  the learned  Sessions Judge who convicted them as has been  said above.  The conviction was upheld by the High Court and  the appellants have come to this court by special leave. It  may be remarked that the dead body of Kamla or  her  son Madhusudan was never found and this is a case where there is no direct proof of corpus delicti.  The question is  whether in a case 261 like  this  and  on  the evidence which we  are  going  to discuss,  it  can  be said that a ease of  murder  has  been proved  and it has also been proved as to who committed  the

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murder and further whether a case under s. 201 has been made out. There  are  certain  facts in this case  which  are  not  in controversy.  The appellant Raghav after having been married to  Kamla for about four years married a second  time.   His second  wife  is  Vimla who is a  graduate  of  the  Lucknow University.  It is not disputed that some time in 1959 Kamla with  her son Madhusudan who was born in 1957 went  to  live with her parents, her father being a well to-do resident  of another village.  She stayed with her parents for about  two years  and was brought back to Hamirpur Roora some  time  in 1960.  The prosecution case is that this was on the  promise that she will be given Rs. 10, 00) in cash and 90 bighas  of land but this is denied by the defence.  The High Court  has found  this  fact proved.  There is again no  dispute  about their  (Kamla and her son Madhasudan) being alive  upto  the evening of April 5, 1961.  On the night between April 5  and April  6, both Kamla and Madhusudan disappeared.  They  were not  seen  at  the  house of Ramanuj  Das  where  they  were residing and where also were residing her father in-law  and his  family and her husband whenever he came to the  village from Lucknow where he was a University student and where  he had  a  flat of his own for his residence and  that  of  his second wife Vimla and his sisters.  It is also clear on this record  that none of the members of the family i.e.  Ramanuj Das,  Jai  Devi or any other made the slightest  attempt  to trace  the  whereabout  of Kamla and  her  son  after  their disappearance.  No report was made to the Police, no  search was  made.   On  the other hand when the  chowkidar  of  the village Khushali P. W., asked Ramanuj Das 262 to  give  something in writing so that he could  inform  the Police regarding the rumour which was afloat in the  village about  the murder of Kamla and her son he told him  to  wait till  Dalgajan  Singh  came.  It was  after  this  that  the chowkidar made a report at the Police Station. The  first question is as to whether Kamla and her son  were murdered  and  the  murder was committed  in  the  house  of Ramanuj Das as alleged by the prosecution.  As we have  said above  both  Kamla  and her son were  seen  alive  till  the evening of April 5, 1961 and they were not seen  thereafter. Both  the courts below have found and there is  evidence  on the  record  that  relations between Kamla  and  he  husband Raghav were strained and it was for that reason that she had gone away to her parents house.  Ram Swarup, Kamla’s  father has  deposed  to this and so has Lakhan Prasad  who  deposed that  whenever  he  met Kamla he found her  to  be  unhappy. Ordinarily  amongst families such as that of  the  appellant daughters-in-law  do  not go away to stay at  their  parents house  unless there is reason for it. , The High  Court  has considered this evidence in regard to the relations  between the  husband  and  the wife at great length and  it  is  not necessary to repeat those statements of the witnesses  which have been referred to in the judgment of the High Court.  We are  satisfied  that  on this evidence the  High  Court  has rightly  found  that  the relations  between  the  two  were unhappy.  In those circumstances it has to be enquired as to how  and  why Kamla came back to the house  of  her  in-laws along  with her son.  For that the evidence again is of  Ram Swarup  and Lakhan Prasad.  Somewhere in 1960 Lakhan  Prasad went  to Ram Swarup and asked him that Kamla should be  sent to  Hamirpur  Roora  and  that there  would  be  no  further trouble.  we  also  told Ram Swarup  that  Ramanuj  Das  had decided to give Kamla a sum of Rs. 10,000 in cash 263

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and  90 bighas of Land for cultivation on the  understanding that she would reside at Hamirpur Roora.  On this  condition Ramanuj  Das  came and took Kamla with him after  the  bidai ceremony.   On  that  occasion,  according  to  ham  Swarup, Ramanuj Das told him that he would settle the money and  the land  as  promised.  Sometime in February  1961  Ram  Swarup accompanied  by Lakhan Prasad went to the house  of  Ramanuj Das  and  asked him to perform his part of  the  promise  to which Ramanuj Das replied that be would do so on the arrival of Raghav from Lucknow. On  April  5, 1961, the date of the alleged  murder,  Lakhan Prasad  went to the house of Ramanuj Das and there he had  a talk with Ramanuj Das, Raghav was also sitting near  Ramanuj Das.   When Lakhan Prasad started talking about this  matter Raghav got up and went away but Ramanuj Das promised that he would  execute the document on Monday April 10, 1961 and  it was  arranged that Ram Swarup would also be present by  them and Lakhan Prasad informed Kamla of this fact.  The  defence has  denied this part of the prosecution ease and before  us the  evidence of Lakhan Prasad was severely  criticised  and reliance was placed on the criticism of this witness by  the learned  Sessions  Judge.   It  appears  that  the   learned Sessions  Judge  has  been unduly severe  on  Lakhan  Prasad merely because of a post card which was produced by, Ramanuj Das  and  proved  by defense  witnesses  that  the  marriage between  Kamla  and Raghav was not brought about  by  Lakhan Prasad but by Dafadar Singh.  Lakhan Prasad had deposed that he  had brought about the marriage.  It was also  said  that Lakhan  Prasad  was unable to recognise  the  photograph  of Govind Kumari and other children and thus could not be  very familiar with the family.  But the evidence of Lakhan Prasad gets  strong corroboration from the evidence of Ram  Swarup. The 264 High  Court was satisfied that on that day Ramanuj  Das  had agreed  that he would execute such a document and we see  no reason to differ from the finding of the High Court, The fact that Ramanuj Das was present for the settlement  of money  and land in favour of Kamla is amply proved  on  this record  and  it is equally clear that when this  matter  was broached  in  the presence of Raghav he  suddenly  left  the place from which an inference might well be and has  rightly been drawn that he was not very happy about this settlement. On  the  same  evening  three  shots  were  heard  by  three witnesses  P. W., Narain Singh, P.W. Lallu Singh and  P.  W. Babu  Singh.   Both  the  courts  below  have  accepted  the testimony  of  these witnesses.  We have  gone  through  the evidence  of  these  witnesses and  although  there  may  be certain  points on which the testimony of.  these  witnesses may legitimately be subjected to criticism, those points are Dot sufficient to detract from their evidence that they  did bear  three shots being fired.  The defence had put  forward the  theory  that  it was the firing of a  toy  gun  by  the younger  brother  of Raghav which these witnesses  heard  on that day but this plea has rightly not been accepted by  the High Court. The  question then arises whether Raghav was in the  village on April 5, the date of the murder.  The case for Raghav  is that  he  had  left on the 4th and that he was  not  in  the village  on  the 5th.  One fact which has  been  taken  into consideration  against this plea is the statement of  Lakhan Prasad  when  he states that in the presence of  Raghav  the question  of settlement of land and of money  was  discussed and  n  Raghav  got up and went away.   This,  according  to Lakhan Prasad, was on the 5th.  Then

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265 there  is  the evidence to show that the jeep  of  appellant Raghav  was seen in the house of Ramanuj Das on the  evening of  th.  This evidence is of P. W. Narain Singh who saw  the jeep in the house and of P. W. Lallu Singh who saw the  jeep of  Raghav going towards the north at about 9 or 10  O’Clock on the evening of April 5, 1961 and finally the evidence  of P. W. Babu Singh who says that on the same evening he  heard the  sound of car at about 10 p. m. He also stated that  the only  person  who  had a jeep or a car  was  Raghav.   These witnesses  have been believed and after going through  their evidence  we are of the opinion that they have been  rightly believed.   There is then the evidence of P. W. Sri Ram  who says  that on April 5. at about 10 p.m. he saw the  jeep  of Raghav  in village Samain which is at a distance of  a  mile and in that jeep there were the appellant Raghav and the two appellants  Mohan  Singh and Udham Singh and that  the  back curtain of the jeep was drawn.  This evidence was criticised on the ground that this witness had made a mistake as to the date  which  was  4th  and also that he  did  not  meet  the appellant’s  jeep  there but at another place on  the  canal bank and it is argued that the statement of this witness  is compatible  with the case of the defence.  It appears to  us that  Sri  Ram has made a mistake about the  date.   He  was deposing after a long time but corroboration is from another source  and that shows that Sri Ram must have seen the  jeep on  the 5th and not the 4th.  The jeep was seen at  Hamirpur Roora  on the 5th by two witnesses.  Raghav was seen at  the house on the 5th by Lakhan Prasad and his further  movements have  been traced also.  Raghav took petrol from P.  W.  Ram Bhajjan who states that the petrol was purchased about 10-30 P.  M.  or  11 p. m. and considering  the  distance  between Bidhauna and Samain that would probably be the 266 time when Raghav would be in Bidhuna.  The evidence of  this witness was also criticised that he made a mistake in regard to  time and that petrol was brought at 2 p. m. and  not  in the night.  It was argued that other cash memos bad not been taken from Ram Bhajjan which, if they had been taken,  would have  shown that the petrol was taken not at 10-30 p. m.  or 11  p.  m. but earlier in the  afternoon. This  witness  has given  good reasons why he remembered the time  when  petrol was  taken by him.  He stated that two days later  he  heard the  rumour  and then remembered the time and  the  date  on which  Raghav bad bought petrol from him. He was  criticised for  not remembering the time when Raghav bought  petrol  on the 4th but then he had no reason to recall that visit.   In our  opinion the testimony of this witness has been  rightly accepted  by  the courts below.  On the morning of  6th  the jeep was seen at the barrier at the river Ganga at Kanpur at 8-30  a.  m.  and then Raghav went  to  Lucknow.   From  the evidence  of demand of Lakhan Prasad for the  Settlement  of land  on  Kamla on April 5, 1961 in the presence  of  Raghav from  the  fact  that the jeep of Raghav  was  seen  in  the village  in  the evening and his jeep was  seen  going  from village Hamirpur Roora and again at Samain and Bhidhuna  an inference  has rightly been drawn that appellant Raghav  was present  in village Hamirpur Roora on April 5 and  his  plea that he left that village on the 4th is false. The  police was informed about the rumour in the village  of the  murder  of Kamla and her son on April 7  and  the  Sub- Inspector  Brijraj Singh Tomar came to the house of  Ramanuj Das at about 2 p.m. He went into the house and inspected the place  of  occurrence  and prepared a  site  plan  and  memo showing as to what he saw.  This, he has sworn to be correct

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and there is no reason to doubt his testimony.  According to his statement he found 267 what  appeared to be blood at different places in the  rooms and be took the plaster from those places.  As we have  said above  the origin of this blood has not been proved  because of  disintegration but the fact is that blood was  found  in the rooms. The case put forward by appellant Raghav was that he started from  the  village  on  April 4 and  want  to  his  mother’s father’s  house at Shah Nagla.  From there he took with  him his Dada Ram Sewak and the wife of Ram Sawak whom he  called Bhabhi.   He  started from that place on April  5,  1961  at about 12 noon, took petrol from Bidhuna and reached  Samain, which  he  wants us to read as Bhawain, where  his  mother’s sister  is married and where he want to condole because  the father-in-law of his mother’s sister bad died and from there he  started  from  Lucknow on April  6,  1961  after  taking refreshments.  All these facts were capable of easy proof if facts  they  were.   Neither the Dada nor  the  Bhabhi  were examined  The  two persons who saw the appellant go  in  the jeep  are P. W. Sri Ram and P.W. Ram Bhajan.  The  testimony of  these witnesses has been believed by the  courts  below and  with  that we have agreed.  Neither of them  says  that they  saw a woman in the jeep.  If the appellant  left  with Mohan Singh and Udham Sinah then there should have been four individuals in the jeep besides the appellant at the  petrol pump.  That is not the statement of P. M. Ram Bhajan nor  is there  any proof that as a matter of fact the  father-in-law of the appellant’s mother’s sister (Massi) had died or  that the appellant had gone there for the purpose of condoling or that  he  went there at all.  We are unable to  accept  this explanation given by the appellant in view of the  testimony of the witnesses who have been discussed above.  Thus  after the  three  gunshots  were  fired and  heard  by  the  three witnesses,  the  appellant’s  jeep  was  seen  leaving   the village.  It was seen in Samain with 268 the  two appellants Mohan Singh and Udham Singh and  it  was then seen at Bidbuna "with two persons sitting at the back". This  was  on  April  5.  The  explanation  given  by   the. appellant, therefore, is false. When the appellant reached Lucknow his sister wrote a letter saying  that the appellant etc. had arrived and that  Bhabhi had  also come and "as Bhabhi has come over here so  I  have not  to  worry about cooking of food".  The  defence  submit that what was meant by Bhabhi wag Vimla or it may be Dada  s wife  and  therefore it cannot he said that  there  was  any oblique  motive in the  writing of this post card so as  to create  evidence in regard to Kamla being alive on April  6. 1951.  The prosecution has rightly argued that in this  post card  there is no mention of Kamla.  The father,  uncle  and mother  and  three younger children are  mentioned  but  not Kamla  or Madbusudan.  To this the reply of counsel for  the appellant  was  that there was not much  love  lost  between Kamla and Govind Kumari and for that reason her name was not mentioned.  But there wag nothing against the little boy who could  have been mentioned as the other children.   Even  if Govind  Kumari’s  distaste  be true that  is  an  additional reason  for saying that Kamla was not a very welcome  member of the family of her in-laws. The appellant then was found to be absconding.  According to Sub-Inspector  Tomar efforts were made to search for him  in different places where he would ordinarily be in the town of Lucknow  or elsewhere but he was not found.   Ultimately  he

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went  to  Nawabganj in the district of  Barabanki  where  on April  20, 1961 he surrendered himself before a  Magistrate. In the application that he made for surrendering himself  he stated,  as has been said above, that Kamla d/o  Ram  Swarup who was living in his house was missing and it was being  269 said by his enemies that she had murdered and that his  name had been mentioned in that connection due to enmity and that a  warrant  had issued against him although  be  was  wholly unaware   of   her  disappearance.   This   is   rather   an extraordinary  conduct on the part of a husband.   There  is nothing  to indicates that any attempt was made by the  hus- band  to  search  for  the missing wife  and  the  child  or anything  was done by him in regard to that matter.  He  may not have worried about the mother but what about the  child? The allegation of the prosecution that he was absconding and that  when they searched for him they could not find him  is satisfactorily  established  on this record.  We  are  aware that the burden of proving everything against the  appellant is  on  the  prosecution and there is no burden  on  him  to disprove  anything but in a case of circumstantial  evidence where there are circumstance of the kind which are proved in this  case the cumulative effect has to be seen  by  placing together proved facts any conclusion drawn therefrom and  in the absence of any explanation all that one has to  consider is the prosecution evidence. There  is  another important circumstance’ A  shirt  of  the appellant was recovered from a laundry on April 16.  It  was found  to be bloodstained although the origin of  the  blood has  not been proved by the prosecution.  The  fact  remains that  at  three  places this shirt which was  given  by  the appellant  on April 9, 1961 was found to  be  blood-stained. Counsel  for  the  appellant argued that  this  was  a  most innocuous circumstance because there is no proof that  there was  blood on the shirt on April 9 when it was given to  the laundry and that merely three specks of blood being found on the  16th i.e. seven days later is not a circumstance  which can  be  taken against the appellant.  With this we  do  not agree.   The appellant must consider himself lucky that  the shirt was washed or it would 270 have  cleared  him or inculpated him still more.   The  fact that the blood was not visible to Babulal when the shirt was taken   is  not  a  circumstance  which  goes  against   the prosecution  case  because books on  medical  jurisprudence- show  that bloodstains are sometimes faint and invisible  by ordinary  light.  The shirt was given to be  laundered  and Babulal will look for tears and damage and not for stains or dirt  for  which  the shirt was given to  be  cleaned.   The colour  of  the shirt was khaki and it is  likely  that  the small  stains would go unnoticed.  After all the  shirt  was given  for  a wash. It is true that the blood was  found  on April  16, 1961 and there is no proof that it was  there  on April 9, 1961 but we see no reason why blood should suddenly appear seven days later on the shirt of Raghav.  When be was asked  in regard to this bloodstained shirt, his answer  was "I  do  not  know".  In the circumstances  the  courts  were justified  in taking this to be a circumstance in the  chain of  circumstances which have to be placed together in  order to determine whether the case has been made out against  the appellant or not. Another very striking circumstance against the appellant  is that the jeep in which Ragbav travelled from the village  to Lucknow has vanished from the face of this earth.  In  spite of  the  beat efforts of the police it has not  been  found.

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Evidently the police wanted to interrogate the appellant  in regard the whereabouts of the jeep but it appears that by an order  dated April 28, 1961 the Magistrate ordered that  the Investigating Officer should issue a written order requiring Raghav  to produce the jeep "as well as to  interrogate  the accused", that the accused is at liberty to say whatever  be likes  and he could not be compelled either to  produce  the thing  or to tell its whereabouts as this is  his  privilege under  the  law.  It is then that the police made  an  order calling upon the appellant (Raghav) to produce the 271 jeep  and  of course it was never produced nor  found.   His reply  cannot be read under s. 162 Criminal  Procedure  Code and  we  leave  have it out of  account  altogether.   Every possible  place was searched and it is significant  that  it has not been found till today and even when the evidence was being  led  about  its disappearance the  evidence  was  not contradicted.  by  driving the jeep to the court  house  and saying,,   here  it  is.   This,  in  our  opinion,   is   a circumstance which can be taken into consideration in  order to,  determine the guilt or otherwise of the appellant.   In the opinion of the High Court the jeep has not been produced because  it  must be bloodstained, on account  of  the  dead bodies having been carried in it.  It is quite obvious  that however much the jeep be washed the chances would be that in some  crevice, in some joint or in some bolt nut  or  screw, blood  may still remain adhearing.  But if the jeep  is  not produced there can be no risk of detection and the inference from  its disappearance can be countered by arguments as  it has  actually  been.  The non-production of the  jeep  is  a strong  circumstance  against  appellant  Raghav  which  the courts  below  were entitled to.  take  into  consideration. Articles’  like jeeps do not just disappear in this air  and when they do disappear and cannot be traced as they have not been  traced  in this cage and when the allegation  is  that they have been used for carrying away the dead bodies  their non-production  or their not being found is  a  circumstance which a court can take into consideration in determining the guilt of an accused person. It  may  also he added that the other appellants  were  also absconding.  Why the whole household went away is not just a coincidence.   If the girl and the child had disappeared  in innocent  circumstances there was hardly reason for  all  of them  to  panic.   None  of them proved  why  they  were  so difficult  to get at or what was the urgent  business  which had 272 called  them  away.  Mohan Singh was arrested  on  April  9, Ramanuj Das surrendered on April 24, and in his  application he  stated that be bad been informed by A. P. Dubey that  be was  wanted.   Jai Devi surrendered on April  27,  1961  and claimed to be a purdanashin lady and her appearance in court was  excused  and she was released on bail.   Thus  all  the accused  persons were found to be absconding and except  one the other four were not arrested but they surrendered in the court of the Magistrate and of them 3 were released on bail. We  have  therefore the following  circumstances  which  the Courts   have  taken  into  considerations   %’1)   strained relations  between Raghav and his wife Kamla; (2) there  was an  agreement by Ramanuj Das of making a settlement of  land and  money in favour of Kamla and on the insistence  of  Ram Swarup  father  of Kamla, Ramanuj Das bad  agreed  that  the document  would be executed on Monday i.e April 10,  1961  ; (3) it is also proved that when the matter was discussed  in the  presence of appellant Raghav whose arrival was  awaited

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for finalising the arrangement he got up and went away;  and it is also established that Kamla had been brought from  the house  of her parents on the express condition that  such  a settlement  would  be made; (4) on April 5,  1961  appellant Raghav  was  in village Hamirpur Roora and on  that  evening three gunshots were fired and some time later Raghav left in his  jeep  with two other appellants Mohan Singh  and  Udham Singh  and  after Raghav left Kamla and her son  were  found missing   from  the  house;  (5)  although  this  fact   was discovered  the next day no attempt was made to  search  for Kamla  and  her  son;  (6)  Appellant  Raghav  and  his  two companions  travelled by night from village  Hamirpur  Roora according  to witnesses he was in a hurry and were found  on the  6th  morning at Kanpur and the same  day  they  reached Lucknow as the post card written by 273 Govind  Kumari shows.  In that post card it is  stated  that the  appellant  and  others had  arrived  at  Lucknow.   The explanation of the appellant was that he left on the 4th and took  his  Dada  and  his Bhabbi along  with  him  but  this explanation   has   not  been  accepted  and  is   a   false explanation;  (7)  thereafter  the  appellant  made  himself scarce   and  the  police  could  not  trace  him  till   he surrendered  himself  in  the  court  of  a  magistrate   at Nawabgunj  where  he made an application  stating  that  one Kamla  was found missing and that he was being suspected  of murdering  her; (8) why he should have gone to Nawabgunj  is not  quite  clear and of course neither he nor  any  of  his relatives  made any attempt to look for Kamla; (9) when  the chowkidar  of the village told Ramanuj Das about the  rumour in  the  village  of the murder of Kamla  he  was  asked  by Ramanuj Das not to make the report till Dalganjan Singh  had arrived (Dalganjan Singh we are told is an Up-Pradhan of the Panchayat)  the report was made by the chowkidar on the  4th and the police came the same day and inspected the house  of Ramanuj Das ; (10) In the rooms upstairs blood was found  at 5 places.  According to the memo prepared and deposed to  in Court  there  were marks of blood having been wiped  off  at many  places  and the Chemical Examiner found the  marks  on these  various places of plaster which had been  taken  into possession  by  the  sub-Inspector to be of  blood  but  its origin  could not be determined due to disintegration;  (11) on  April 12, D. Sp.  Bashir Hussain. found the blood  at  2 places more in the house of the Ramanuj Das.  The origin  of this  blood has also not been proved due to  disintegration; (12)  on April 16, a bloodstained shirt of Raghav was  found from  a laundry; (13) no explanation is given of this  blood on  the shirt and (14) on April 5, 1961 both Kamla  and  her son  disappeared from the fact of this earth and nobody  has heard  of them and no attempt has on made to find out as  to what happened to them 274 and instead false explanation was given that Kamla had  left with  her  child  and a suggestion was made  in  the  cross- examination that she had eloped with one Chander Sekhar  and thus  had  vanished from the house.  It may be  stated  that there  is  no reasons why she should have  disappeared  when according  to evidence she was going to get land  and  money and when she had her father who could look after her and was in  affluent  circumstances; (15) Coupled with this  is  the fact,  of  disappearance  of jeep  in  which  the  appellant travelled  from  his village to Lucknow; (16) and  a  wholly false  explanation  was  given as to  the  movement  of  the appellant Raghav.  From these circumstances the courts below came to the conclusion that the murder was committed at  the

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house  of Ramanuj Das.  We find no reason to  disagree  with the  conclusions drawn from the evidence that Kamla and  her son  Madhusudhan  are  dead  and they  met  their  death  by violence in the house of Ramanuj Das. In king Horry (1) the headnote states the law as follows:-               "At the trial of a person charged with murder,               the    fact   of   death   is   provable    by               circumstantial evidence, not withstanding that               neither the body nor any trace of the body has               been  found and that the accused has  made  no               confession of any participation in the  crime.               Before he can be convicted, the fact of  death               should  be  proved by  such  circumstances  as               render  the  commission of the  crime  morally               certain  and  leave no ground  for  reasonable               doubt;  the circumstantial evidence should  be               so cogent and compelling as to convince a jury               that  upon no rational hypothesis  other  than               murder can the facts be accounted for."               (1) [1952] N.Z.L.R. III. 275 This  statement  of  the  law  was  approved  in  Regina  v. Onufrejczyk(1)  except  as  to  moral  certainty  and   that statement of the law has received approval of this court  in Anant Chintaman Lagu v. The State of Bombay(2).  It was also said in King v. Horry (3):               "That  the  jury, viewing the  evidence  as  a               whole, was entitled to regard the  concurrence               of  so many separate facts  and  circumstances               themselves  established beyond all doubt,  and               all pointing to the fact of death on or  about               July  13,  1942-as  excluding  any  reasonable               hypothesis other than the death of the  person               alleged  to have been murdered and as  having,               therefore   sufficient  probative   force   to               establish her death." In this connection it would be apposite’, to quote from  the judgment  in  Lagu’s  case(2)  at  page  506  where  it  was observed:-               "In Rex v. Horry [1952] N.Z.L.R. 111 where the               entire  case law in England was presented  for               the  consideration  of  the  Court.   It   was               pointed  out  by the Court that there  was  no               rule  in England that corpus delicti  must  be               proved  by  direct evidence  establishing  the               death of the person and further the cause that               death.   Reference was made to Evans v.  Evans               161  E.R. 466, 491.  Where it was  ruled  that               corpus  delicti  might  be  proved  by  direct               evidence  or  by  ",irresistible  grounds   of               presumption".   In the same case it  has  been               pointed  out  that in New Zeland  ’the  Court,               upheld numerous convictions where the body  of               the victim was never found." The  two cases referred to above i.e. King v.  Horry(1)  and Regina v. Onufrejczyk (1) are cases of conviction (1) [1955] 1 Q.B. 388. 394.   (2) 1960 12 S.C.R. 460. (3) [1952] N.Z. L.R. III. 276 no   doubt   by  juries  on  evidence   which   was   wholly circumstantial but in both those cases neither the body  was found  nor any trace of the body was found and there was  no confession by the accused of any participation in the  crime and  the conviction was based on the occurrence of  so  many separate facts and circumstances all pointing to the fact of

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death  on  or  about  a particular  date  and  excluded  any reasonable  hypothesis  other than the death of  the  person alleged  to  have been murdered and this was held to  be  of Bufficient  probative  force  to establish  death.   In  the present case the circumstances which have been proved and to repeat the circumstances are, strained relations between the husband  and wife, motive to escape the giving of money  and land  or  maintenance  to the wife or  the  child,  suddenly leaving  the  village at night with two  others  and  almost simultaneous  disappearance of Kamla and her son, no  search for  her  and absolute callousness or the  part  of  Raghav, subsequent false explanation being given and his  absconding are  all  circumstances  from which the  courts  below  were justified in concluding the Kamla and her son were  murdered and  that  Raghav  had a predominent motive  to  commit  the murder.   The  High  Court found that Raghav  had  a  strong motive  to  commit  the  murder and  after  taking  all  the circumstances into consideration came to the conclusion that the  Sessions Judge had rightly convicted Raghav of  murder. No  two  cases can have the same facts  but  the  principles applied in placing the various links in the chain of  events and  circumstances  by the High Court are,  in  our  opinion wholly  correct and they have rightly drawn  the  conclusion that  the  appellant Raghav was guilty of the  offence  with which he was charged.  The inculpatory facts which have been proved were, in the opinion of the High Court,  inconsistent with  the innocence of the appellant and are not capable  of explanation or any other hypothesis except his 277 guilt  and as was said by this Court in Govinda v. State  of Mysore(1).               "In  cases  where the evidence is  of  circum-               stantial nature, the circumstances from  which               the conclusion of guilt is to be 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  be  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                             be  such  as  to show  that  within  all  huma n               probabilities  the act must have been done  by               the   accused.    The   principle   that   the               inculpatory fact must be inconsistant with the               innocence  of  the accused  and  incapable  of               explanation on any other hypothesis than  that               of  guilt does not mean that  any  extravagant               hypothesis would be sufficient to sustain  the               principle,  but that the hypothesis  suggested               must be reasonable." The evidence in this case and the inferences drawn from  the evidence by the courts below do not fall in what was said by Baron  Alderson in his charge to the jury in Re v.  Hodge(2) where it was said:               "The  mind  was  apt to  take  a  pleasure  in               adapting  circumstances  to one  another,  and               even  in straining them a little, if need  be,               to  force them to form parts of one  connected               whole; and the more ingenious the mind of  the

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             individual the more likely was it, considering               such matter, to overreach and               .lm0               (1) A.I.R.1960 S.C.29.               (2) [1838] 2 Law 227.               278               mislead  itself,  to supply some  little  link               that is wanting, to take for granted some fact               consistent  with  its  previous  theories  and               necessary to render them complete." Therefore  in  our  view the  courts  below  having  applied correct principles and having found the circumstances, to be such  which can only be explained on the hypothesis  of  the guilt  of appellant Raghav have rightly found the  appellant to be guilty.  He had the immediate motive to rid himself of the wife.  His child was just as undesirable and indeed  the child  could not be kept back and the mother murdered.   Jai Devi  as the murderer by gun shots was out of the  question. Ramanuj’ Das was trying to placate Kamla by promising  money and  lands.   The servants had I no reason to  murder  their mistress.   It  is manifest that the shots must  have  been fired  by Raghav who took steps also to rid the  bodies  and the jeep which carried them.  If the jeep was not  connected it  would  have come forth if not in  the  investigation  at least during the trial. We therefore dismiss the appeal of Raghav and see no  reason to  disagree  with the opinion of the courts below  that  no sentence other than death was called for in this case.   The murder was a venal one and had been committed to get rid  of an inconvenient wife and her child. Then  the question arises whether a case is made out s.  201 of  the Indian Penal Code and if so against whom ?  The  two appellants  Mohan  Singh  and  Udham  Singh  were  with  the appellant  (Raghav)  in his jeep and if the  dead  body  was taken  away  in his jeep as it has been held by  the  Courts below that they were then the case against these two appel- lants is proved.  It is said that no one saw the dead bodies being  carried.  That may be so but the conclusion drawn  is from  circumstantial  evidence i.e. series of  events  which lead to the conclusion of  279 guilt.   We have already said that murder was  committed  in the  house of Ramanuj Das on the evening of April  5,  1961. There  was disappearance of Kamla and Madhusudan and  sudden departure of Raghav and these two appellants.  They were  in a  ,hurry  and the back curtains of jeep were  drawn.   They travelled  all night and took almost 11 hours to  reach  the barrier  at  Kanpur.   There is no trace of  Kamla  and  her child.   No one has seen them since their  disappearance  on April  5.  From  these  proved facts  the  courts  drow  the inference of an offence under a. 201 Indian Penal Code which in our opinion was correct.  Thus these two appellants  have been rightly convicted and their appeals are dismissed. In  regard  to  the case of Ramanuj Das  and  Jai  Devi  the finding  of the High Court is that the dead bodies of  Kamla and  her  son  Madbusudan were not found  in  the  house  of Ramanuj Das and they must have therefore been removed ; that an attempt was made to wash out the bloodstains from  inside the  rooms  and  also outside on the roof ;  that  the  dead bodies could not have been removed without the knowledge and active  cooperation of Ramanuj Das and Jai Devi and  further that both Ramanuj Das and Jai Devi absconded.  On this basis the  conviction  of these appellants was held  by  the  High Court  to  be  justified.  It is true that  the  murder  was committed in the house of Ramanuj Das and that there is  the

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evidence  to  show  that the blood inside  and  outside  the living   rooms  was  washed  and  an  attempt  was-made   to obliterate  any sign of it though it was  unsuccessful.   It also may be that both Ramanuj Das and Jai Devi had knowledge of  the removal of the dead-bodies but what s. 201  requires is causing any evidence of the commission of the offence  to disappear  or  for  giving any  information  respecting  the offence  which a person knows or believes to be  false.   In this  case there is no evidence of either.  It is not  shown that 280 these  two  appellants  caused any  evidence  to  disappear. There may be a very strong suspicion that if from the  house dead  bodies are removed or blood was washed, person  placed in  the position of the appellants must have had. a hand  in it  but  still  that  remains  a  suspicion  even  a  strong suspicion at that.  It is true that they were absconding but merely  absconding  will  not fill the  gap  or  supply  the evidence  which  is necessary to prove  the  ingredients  of section  201 of the Indian Penal Code.  In our  opinion  the case against Ramanuj Das and Jai Devi has not been made out. There  appeals must therefore be allowed and they be set  at liberty. We have found that the murder was committed in the house  of Ramanuj  Das and that disappearance of the dead bodies  took place  from that house.  Ramanuj Das did have the  knowledge of  the  commission of the murder and he took  no  steps  to inform  the police about it.  In these circumstances he  has been rightly convicted under s. 176 of the Indian Penal Code and his appeal in regard to conviction under that section is dismissed. By COURT.  The appeal of Raghav Prapanna Tripathi, Mohan and Udham  Singh is allowed by majority and that of Ramanuj  Das and  Jai Devi for offence under s. 201 of the  Indian  Penal Code is allowed unanimously.  The appeal of Ramanuj Das  for offence under s. 176 of the Indian Penal Code is allowed  by majority. 281