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PETITIONER: STATE OF BIHAR, ETC.

       Vs.

RESPONDENT: KAPIL SINGH, ETC.

DATE OF JUDGMENT: 18/04/1968

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA SIKRI, S.M. SHELAT, J.M.

CITATION:  1969 AIR   53            1968 SCR  (3) 810

ACT: Murder charge--Evidence of child witness--Non-disclosure  of names of culprits--Confined in police custody--Corroborative evidence, suspicious--Whether conviction can be sustained.

HEADNOTE: Appellants  D and R, and respondent K were charged  for  the murder  of a lady.  The deceased who was sleeping  with  her niece--a  child  aged  about 11 years, woke  up  on  hearing sounds  while  some miscreants were stealing things  in  the house.  She called out to the child.  Two of the  miscreants rushed  at her and another killed her.  The child  pretended to  be  asleep, but did not cry out of fear,  and  continued lying  on her cot till dawn.  In the morning the child  came out  of the room and started weeping.  On the enquiry  of  a passer-by,  she told him about the murder, and a report  was lodged  in the police station.  Her statement  was  recorded but she refused to disclose the names of the culprits as her mother  had forbidden her lest the persons named might  kill her.   D,  K  and R were apprehended.  A  chadar  and  quilt stained  with  human blood were seized from R’s  ’room,  and eartops and its container ’from a room in the house of D and his  brother.  The child was taken to police station, who  3 days thereafter at about midnight disclosed the names of the three  culprits.  She named K to be the actual killer and  D and  R  as the attackers.  Subsequently the  child  and  her mother’s  statements were recorded under s. 164  Cr.   P.C., and  then the child was allowed to return home.  D, K and  R were  convicted by the Sessions Judge under ss. 302  and  34 I.P.C.  The High Court, in appeal, acquitted K holding  that it  was  not  safe to base any conviction  on  the  solitary testimony  of the child witness, but upheld the  convictions of  D  and  R,  as the evidence of  the  child  witness  was corroborated  by the recoveries.  D and R appealed  to  this Court  against  the convictions and the  State  against  K’s acquittal. HELD : The convictions could not be sustained. [820 C] There  were  a number of circumstances  indicating  that  it would  not  be  quite safe to rely  on  the  child  witness’ evidence.   It  was  very  unlikely  that  she  could   have continued  or pretended to be asleep the whole of the  time.

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In  the  morning  she  did not disclose  the  names  of  the culprits to the passer-by.  The conduct of the passer-by  in not trying to find out the names from the child appeared  to be  quite  unnatural.  The explanation that her  mother  had warned  her not to disclose the names lest she be killed  by the  persons named by her, was not convincing.  At no  stage the   suggestion  was  that  the  thieves   themselves   had threatened  to kill the child if she disclosed their  names. She could not, therefore, be under any fear at the time when she  met  the  passer-by and others.   Further  the  illegal confinement   by  the  police  was  reprehensive  and   very adversely affected the value of the evidence obtained by the police.   The very fact that she was questioned at  the  odd hour  of midnight made it obvious that compulsion was  being used  on her to disclose the names.  Clearly the police  was acting  against  law in keeping the child  confined  in  the police  station with a police constable posted all the  time as  her  companion.  The failure of mother to  appear  as  a witness  at the Sessions Trial, was another example  of  the unsatisfactory or unreliable conduct of the investigation of the  present case.  If she had-come in the  witness-box,  it seemed that she 811 could  not  have  supported the  prosecution  case,  so  the unconvincing excuse was put forward that she disappeared  on the day fixed for her evidence, even though she was  staying at the same place as her daughter and was looking after  her during  the trial of the case.  It is also significant  that according  to the child her mother had told the police  that she had not forbidden the child to disclose the names of the culprits. [816 A-F; 817 A-D; 818 A--C] Even  the  corroborative  evidence  adduced,  was  of   very doubtful character.  No reasonable explanation was given  by the  prosecution of how blood came on the quilt  and  chadar recovered  from the house of R. During the season  in  which and at the place where the murder took place quilt would not be in use.  The child did not state that any of the  persons was  carrying the quilt or chadar or was trying  to  conceal his features by wrapping in them.  The explanation for these blood  stains  by R had not been accepted and was  not  very satisfactory;  but  the  failure of an accused  to  give  an adequate  explanation  does not lead to  an  inference  that these  blood  stains  must  be those of  the  blood  of  the deceased. [818 D-H] Similarly the recovery of the eartops and its container  was highly  suspicious.   It was not established that  the  room from  which it was recovered was of D. All  the  formalities for  conducting the search were not complied, as  a  witness stated  that  the  police  inspector  was  already  in   the courtyard  of the house, when the witness arrived.   Further the  prosecution made out that D was foolish enough to  keep in his room an article connected with the murder about which there could be no difficulty of identification, because  the container  had on it the name of the daughter-in-law of  the deceased  and  it  was  kept in a  manner  to  attract  the, attention straightaway. [819 C-H]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.  141 and 142 of 1965 and 78 of 1968. Appeals  by special leave from the judgment and order  dated December 23, 1964, February 9, 1965 of the Patna High  Court in Criminal Appeal No. 545 of 1962.

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D.   P.  Singh, K. M. K. Nair and N. M. Ghatatate,  for  the appellant  (in Cr.  A. No. 141 of 1965) and  respondent  (in Cr.  A. No. 142 of 1965). R.   C.  Prasad,  for the appellant (in Cr.  A. No.  142  of 1965). R.   C.  Prasad,  for the appellant (in Cr.  A.  No.  78  of 1968). U.   P.  Singh,  for the respondent (in Cr.  A. No.  141  of 1965). The Judgment of the Court was delivered by Bhargava,  J. These three appeals all arise out of  a  trial held by the Additional Sessions Judge of Patna in respect of a  charge  of  murder of an old lady Rohini  Kuer,  wife  of Munshi Chaudhary, residing in village Lohra, Police  Station Bakhtiarpur, District Patna.  The prosecution case was that, on the night between 17th and 18th June, 1961, Rohini  Kuer, who  was aged about 60 years, was sleeping on a cot  in  the courtyard  of  her house and, nearby, on a smaller  cot  was sleeping her niece, 812 Manti,  who  was about 11 years of  age.   Munshi  Chaudhary himself,  his sons and daughter-in-law were at Ranchi  where one  of  his  sons had been posted as  a  Block  Development Officer.   During the night, Rohini Kuer had closed all  the doors and had put a lock from inside on the connecting  door between  the female apartment and the male apartment of  the house.  Some time during the night, three miscreants entered the  female apartment by cutting a hole in the wall  on  the western  side  of the connecting door and began  to  ransack different  rooms  of  the house.  Rohini  Kuer  woke  up  on hearing the sounds, while the miscreants were breaking  open the  boxes and removing the articles.  She got up  from  her bed, accosted the thieves and also called out to Manti.  Two of  those  persons  rushed at her, threw  her  down  on  the verandah and inflicted several injuries on her body.  One of them brought out a sword which was kept in the southern room adjacent  to the verandah and cut her neck in the  light  of the  electric  torch  which had been lighted  by  the  third person.   Thereafter,  they  took  away  cash,  clothes  and ornaments having broken open several boxes.  They also  took away an iron safe.  Manti pretended to be asleep and did not cry  out  due  to fear.  At one stage, one  of  the  thieves suggested  that she should also be killed, but  another  one intervened  and suggested that it was unnecessary to  commit her murder.  Manti continued lying on her cot till dawn when she  came out of the house through the hole which  had  been cut by the thieves and started weeping While she was in  the Baithak  of  Munshi Chaudhary, one Bhagwat Prasad,  who  was passing by, enquired what the matter was.  She told him that Daiya had been cut.  ’Daiya’ was the term by which she  used to address Rohini Kuer who was her father’s sister.  Bhagwat Prasad  then entered the female apartment through  the  same hole  and  found the dead body of Rohini Kuer lying  in  the verandah.   As  he  came out after  seeing  the  dead  body, Ramkishan Chaukidar also arrived.  Both of them then went to Harnaut Police outpost four miles away where Bhagwat  Prasad lodged  a  First Information Report which  was  recorded  by Assistant  Sub-Inspector Jagdish Singh at about 8 a.m.,  the date being 18th June, 1961.  He sent a copy of the Report to Bakhtiarpur  Police  Station for institution of a  case  and himself  proceeded to the scene of occurrence at 10.30  a.m. It is said that, in the meantime, Manti’s mother had arrived and  she  told  Manti  not to  disclose  the  names  of  the offenders  lest she should also be killed.   Jagdish  Singh, A.S.I., inspected the place of occurrence, noticed the  hole

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that  had  been  cut in the wall and  actually  went  inside through  the same opening.  He found the dead body lying  in the  verandah and also notice some- footprints on the  floor near the dead body.  A blood-stained sword kept in a  sheath was  also  found by him in a room adjacent to  the  verandah where he also found another foot print in blood stains.  He 813 prepared the inquest report and sent the dead body of Rohini Kuer for postmortem examination.  The investigation was then taken  over by Inspector of Police, Lakshmi  Narain  Pathak, who took statements of various witnesses, According to  him, though  he was able to record a detailed statement of  Manti covering  about  two pages.  Manti refused to  disclose  the names of the culprits and started weeping when she was asked to give out the names.  He sent a requisition to Patna for a police  dog and a photographer.  Three days later,  on  21st June, the police dog and the photographer arrived in village Lohra,  and the Investigating Officer, Pathak,  on  reaching the  spot let loose the dog.  The dog went to the  house  of Ramujagar appellant and entered a room from which one Dasuti Chadar  and one quilt stained with blood were seized by  the Investigating Officer Pathak-.  Thereafter. the dog went  to the house of Kapil Singh who, in the meantime, had left  his house  on  seeing  the police arriving.   He  was,  however, arrested  by  the Dafadar.  Subsequently, the  dog  led  the police to the house of Deo Singh and his brother Singheshwar where, on a search having been made, a pair of gold ear-tops were recovered from a niche situated in a room facing  east. The  ear-tops were kept in a cardboard case which  bore  the inscription   "Malti   Singh,   Women’s   College    Ranchi, P.N.U.N.C.H.2".  In the inner cover of the case "M.   Singh" had  been  written in English and the names of  the  dealers were also printed on it.  The old ear-tops and its  covering box were seized by the investigating officer.  On 22nd June, 1961,  Jagdish  Singh, A.S.I., Harnaut  Police  outpost,  on searching  a  well situated about three quarters of  a  mile away from village Lohra, recovered a Godrej Iron Safe  which was  taken out and was found to contain  articles  including insurance  Policies in the name of Nandkishore Singh son  of Munshi Chaudhary. The  girl Manti was taken to the Police Station by  the  In- vestigating  Officer  on  the 19th  June,  1961,  apparently because she had failed to disclose the names of the  thieves whom she had seen inside the house and who had committed the murder  of Rohini Kuer in her presence.  Manti was  kept  at the Police Station and was repeatedly questioned.  According to the Investigating Officer, Lakshmi Narain Pathak, she was allowed to visit her sister’s place in between, but she  was always provided with a police escort.  At about midnight  on the  night between 21st and 22nd June, 1961, she is  alleged to  have  disclosed the names of the  three  culprits.   The names that she gave were those of Kapil Singh alias Kapildeo Singh,  Ramujagar Singh and Deo Singh alias Surajdeo  Singh. She  then-amplified  the statement by stating  that  it  was Kapil Singh who had actually cut the neck of Rohini Kuer and that  Ramujagar Singh and Kapil Singh were the  two  persons who had attacked her.  Deo Singh, 814 according to her, was the person who was flashing the  torch to  give  light to his two companions.  She added  that  Deo Singh  had  said that she also should be  killed,  Whereupon Kapil Singh said that she was a child and they should  leave her. Subsequently, on 28th June, 1961, Manti and her mother  were both produced before a Magistrate who recorded their  state-

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ments under section 164, Criminal Procedure Code.  Manti was allowed  to  go home after this statement of hers  had  been recorded  by the Magistrate.  Samples of the  footprints  of the  three  suspects were compared with  the  footprints  in blood found at the scene of occurrence by the police  Expert on, Footprints and evidence was sought to be given by him to prove that one of the footprints tallied with the  footprint of Deo Singh.  The Additional Sessions Judge accepted as true the evidence of  Manti.  He further held that there was corroboration  of her  evidence at least against two of the persons  Ramujagar Singh and Deo Singh.  His finding was that the quilt and the chadar,  which were proved stained with human blood,  having been  recovered from the house of Ramujagar Singh,  provided very  good  corroboration  of  the  case  against  him.   of participation  in  this murder.  Similarly,  the  Additional Sessions  Judge held that the recovery of the  eartops  with the cardboard box containing on it the name of the daughter- in-law  of Rohini Kuer as well as the circumstance that  the blood-stained footprint found on the spot tallied with  that of Deo Singh appellant furnished very good corroboration  of the  case against Deo Singh.  These circumstances  indicated that Manti had given truthful evidence and, consequently, he convicted  all  the three persons for the offence  under  s. 302,  I.P.C., read with s. 34, I.P.C. All the three  persons were  sentenced to imprisonment for life for  this  offence. Kapildeo  was, in addition, found guilty of the  substantive offence  under s. 302, I.P.C. for committing the  murder  of Rohini  Kuer and he was sentenced to imprisonment  for  life for that offence.  Deo Singh was further found guilty of  an offence  punishable under s. 41 1, I.P.C., and sentenced  to undergo  rigorous  imprisonment  for  one  year.   All   the sentences  were directed to run concurrently.   Singheshwar, the brother of Deo Singh. who was also tried with the  other three persons, was acquitted of all the charges. The  three convicted persons, Kapil Singh,  Ramujagar  Singh and  Deo  Singh appealed to the High Court  at  Patna.   The appeal  came up before a Division Bench.  Both the  learned, Judges  constituting the Bench held that it was not safe  to base any conviction on the solitary testimony of Manti  and, consequently,  they gave Kapil Singh the benefit  of  doubt, set  aside his conviction and sentences, and acquitted  him. On the learned Judges 815 was  of  the opinion that the conviction of  the  other  two persons  Ramujagar Singh and Deo Singh should be  upheld  on the  basis  of  the evidence of  Manti  as  corroborated  by recoveries,   in  the  case  of  Ramujagar  Singh,  of   the bloodstained  chadar  and  quilt, and, in the  case  of  Deo Singh,  of the eartops and the cardboard box.  Reliance  was also  placed on the circumstance that the footprint  of  Deo Singh  in blood was found close to the scene of  occurrence. The  other learned Judge was, however, of the opinion  that, in  the circumstances of this case, it was not safe to  rely on  the evidence of Manti at all against any of the  persons charged with the offence and, consequently, he expressed the opinion  that Ramujagar Singh and Deo Singh should  also  be given  the benefit of doubt and acquitted.   Thereupon,  the appeal of these two appellants was referred to a third Judge who agreed with the former and held that the conviction  and sentences of these two persons must be upheld.  As a result, the appeal of ’Ramujagar Singh and Deo Singh was  dismissed. Criminal Appeal No. 141 of 1965 has been brought by  special leave  by the State of Bihar against the acquittal of  Kapil Singh,  while Criminal Appeal No. 142/1965, also by  special

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leave,  has been brought up by Ramujagar Singh against  the, judgment  of  the High Court upholding his  conviction.   In addition,  Deo  Singh  has also come up  to  this  Court  by special leave.  Special leave to him was granted at the time of  hearing of the two Criminal Appeals Nos. 141 and 142  of 1965.   All  the three appeals are, therefore,  being  dealt with together in this one judgment. The  facts enumerated above make it clear that  the  crucial question  that has to be determined in this case is  whether the evidence of Manti can be relied upon for the purpose  of convicting  Kapil  Singh,  or upholding  the  conviction  of Ramujagar Singh and Deo Singh.  She is the only witness who, according to the prosecution, actually witnessed the  murder and  saw the assailants.  It is, of course, clear  that  the fact that Rohini Kuer was murdered on the night between  the 17th  and 18th June, 1961 in her house by some thieves,  who entered  the  house by breaking open a hole in  a  wall,  is amply  proved by the prosecution evidence.  The  point  that needs  to  be examined is whether these three  persons  were amongst  the  thieves who committed the crime.  Manti  is  a young  girl whose age was recorded as 12 years at  the  time when she was examined in the Court of Session in July, 1962, so that, at the time of the incident, she was only II  years of  age.  While such a child witness. can often be  expected to  give out a true version because of her innocence,  there is  always  the danger in accepting the evidence of  such  a witness  that, under influence, she might have been  coached to  give out a version by persons who may have influence  on her.   In  this  case there are a  number  of  circumstances which, in our 816 opinion, indicate that it will not be quite safe to rely  on her evidence.  She stated that she was lying on a cot  close to the cot on which her aunt Rohini Kuer was sleeping.   She actually  saw her aunt being killed and, according  to  her, there was a threat to her life also when Deo Singh said that she  should  also be killed, though she escaped  when  Kapil Singh  asked  that she should be spared because  she  was  a child.   It does not seem to be very likely that a child  in such circumstances could have continued to pretend that  she was asleep.  In the morning, according to her, when she came out,  she met Bhagwat Prasad before meeting her  mother  and she told Bhagwat Prasad that ’Daiya’ had been killed.  It is surprising that she did not at that stage disclose the names of  any  of these persons to Bhagwat Prasad.  In  fact,  the conduct  of  Bhagwat Prasad is not trying to  find  out  the names of the persons who had committed the murder from Manti when  she told him about it appears to be  quite  unnatural. It  cannot  be expected that, on hearing of the  murder,  he would  quietly  enter the house to discover  the  dead  body without  at all asking Manti whether she had seen  the  cul- prits  and  who  they were.  She even met  others  like  the Chaukidar  Ramkishan, and witnesses Shyam Ram  and  Gursahay before  she met her mother.  In her evidence, she  tried  to explain  her failure to disclose the names by  stating  that her mother had warned her not to disclose the names lest she should  also  be killed by the persons named by  her.   This explanation   sought  to  be  advanced  on  behalf  of   the prosecution  will  not  at  all explain  why  there  was  no disclosure of names by Manti to the persons mentioned  above whom  she  met before this warning was given to her  by  her mother.  At no stage has any suggestion been put forward  by the  prosecution that the thieves themselves had put her  in fear  of  life by threatening to kill her if  she  disclosed their names.  She could not, therefore, be under any fear at

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the  time  when she met Bhagwat Prasad,  the  Chaukidar  and others  and there was no explanation at all why their  names were  not ascertained from her or voluntarily  disclosed  by her at that stage. The  subsequent story put forward by the prosecution to  ex- plain  the  belated  disclosure  of  the  names  is   highly suspicious  and, in fact, indicates that, in this case,  the investigation  by  the  Police has  not  been  honest.   The Investigating Officer, Lakshmi Narain Pathak, himself states that  he  arranged  that the girl be  taken  to  the  Police Station  on 19th June, 1961 and she was then  kept  confined there  up  to the 28th June, 1961, until her  statement  was recorded by a Magistrate under s. 164, Cr.  P.C. We fail  to understand under what law the police was authorised to  keep this  girl confined in the police station for so many  days. Pathak, of course, tried to convert this confine- 817 ment  into protective custody, adding that she  was  allowed to,  go to her sister’s house in between; but Manti  herself contradicts  Pathak.  According to her, she was not  allowed to leave the Police Station at all until the 28th June.  Her statement  is.  that she was kept in a room  in  the  Police Station along with a constable and the room was only  opened when it was necessary for her to go out to ease herself.  In the day-time, she was. allowed to come up to the door of the room, but was not allowed to move away from the door.   Each night  she was shut inside the room and was kept  shut  like that for five or six nights.  It is true that her mother was allowed  to visit her, but this illegal confinement  by  the Police was reprehensive and very adversely affects the value of   the  evidence  obtained  by  the  police  under   these circumstances.   In  this connection, it is  significant  to note  that,  even  according  to  Pathak,  the  names   were disclosed to him for the first time by Manti at midnight  on the  night between 21st and 22nd June, 1961.  The very  fact that she was questioned at the odd hour of midnight makes it obvious  that compulsion was being used on her to  make  her state  the  names  of these persons.  If  it  was  true,  as alleged  by  Pathak, that she was being kept there  for  her personal  protection only, there was. no reason at  all  why she  should  have been questioned during the  night  when  a child of her age should certainly have been allowed to  take undisturbed  rest.  Pathak has tried to justify  the  course adopted by him by saying that he thought it to be proper  to keep  a girl of tender age in police station even for  weeks for taking a statement, because he wanted to know the truth. It  is  surprising that a police officer  should  hold  such views.   Clearly, he was acting against law in keeping  that girl confined in the police station with a police  constable posted  all the time as her companion.  The excuse that  she needed  protection  is belied by the  circumstance  that  at least  for  one  day from 18th June to  19th  June  she  was allowed  to  remain out of police custody and  there  is  no suggestion  that any protection was afforded to  her  during that  time.  It was only on 19th June that she was taken  to the  Police  Station obviously because she  had  refused  to giver the names as desired by the Police.  The Inspector  of Police, Pathak, purported to give evidence as if, in  Bihar, it  is  nothing  extra-ordinary to keep such  a  witness  in police  custody.  We hope that there is no such practice  in that State.  Manti, whose statement implicating these  three persons   was  obtained  in  these  circumstances,   cannot, therefore, be held to be a reliable witness, particularly in view  of  the circumstance that she did not  disclose  their names even at the earlier stage when she had not been put in

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fear of her life by her mother. In  this connection, importance must attach to  the  circum- stance that her mother, who is said to have put the fear  of life  in her, did not enter the witness-box at all when  the case was, 818 tried in the Court of Session.  She was, no doubt,  examined by  the Police and her statement was also obtained under  s. 164,  Cr.P.C., by producing her before the Magistrate.   She was  present  in the Court of Session when Manti  was  being examined,  but,  when  her turn for  examination  came,  she disappeared.  The Public Prosecutor naturally came out  with the explanation that she had been got at by the accused.  We are   unable  to  accept  this  explanation  for  her   non- appearance.  It seems that, if she had come in the  witness- box,  she  would  not have supported  the  prosecution  and, consequently,   the   excuse  was  put  forward   that   she disappeared  on the day fixed for her evidence, even  though she was staying at the same place as her daughter Manti  and was looking after her during the trial of the case.  In this connection,  it  is  significant that,  according  to  Manti herself,  her mother had told the Inspector of  Police  that she  had  not  forbidden her to disclose the  names  of  the culprits.    This  seems  to  be  another  example  of   the unsatisfactory  or unreliable conduct ,of the  investigation in the present case. Apart  from  these circumstances, which  throw  considerable doubt on the evidence of Manti, even the corroborative evid- ence  sought to be adduced by the prosecution appears to  us to  be of a very doubtful character.  As  against  Ramujagar Singh,  the  corroborative evidence put forward  is  that  a quilt  and  a Dasuti chadar stained with  human  blood  were recovered  from his house; but no reasonable explanation  is sought to be given by the prosecution of how the blood  came to  be  on these two articles, if it was the  blood  of  the deceased  Rohini  Kuer.  It is to be noted that  the  murder took  place in June, 1961 and at least :a quilt will not  be in use at all during that season in the plains of Bihar.   A suggestion  seems  to have been put forward  that  Ramujagar Singh had taken both these articles to wrap himself in  them in  order  to  conceal his identity.   This  suggestion  is, however, clearly nullified by the evidence of Manti who does not  state that any one of the persons, whom she saw in  the house  at  the  time of murder, was carrying a  quilt  or  a chadar  or  was trying to conceal his features  by  wrapping himself in them.  Even the alternative explanation that they may have become blood-stained when Ramujagar Singh came home with Rohini Kuer’s blood on his body is, on the face of  it, highly improbable.  Manti herself says that all the culprits washed  their  hands  in  the house  where  the  murder  was committed  before  leaving that house.  The  quilt  and  the Dasuti  chadar had sprinkling of blood and not  mere  blood- smudges.   Obviously,  such sprinkling of  blood  could  not appear  on the quilt and the Dasuti chadar by  their  coming merely  in contact with Ramujagar Singh after his return  to his  house, even if some blood-stains remained on  his  body when he came home.  It is true that the explana- 819 tion  for  these  blood  stains put  forward  on  behalf  of Ramujagar Singh that they were from some skin sores of  one, of  the children of his family has not been accepted and  is not very satisfactory; but the failure of an accused to give an  adequate explanation does not lead to an inference  that these  bloodstains  must  be  those  of  the  blood  of  the deceased.  The circumstances seem to indicate that there  is

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no  connection  at all between these, blood stains  and  the murder of Rohini Kuer. Similarly,  the  recovery  of  the  gold  eartops  and   the cardboard  box, which contained them, is highly  suspicious. For one thing, the prosecution have failed to establish that the  room, from which they were recovered, was that  of  Deo Singh   appellant.   Deo  Singh,  even  according   to   the prosecution witnesses, was employed outside this village and had  only  come on a visit from his duty.   The  room,  from which  they  were  recovered, is described  as  a  room  for keeping cow-dung cakes.  The Investigating Officer naturally could not know who in the family of Deo Singh was in  actual occupation  of this room, while the only  recovery  witness, Narsingh Mahto, had to admit that he did not ,see Deo  Singh eating or sleeping in that room, or keeping things, in  that room,  or  taking  them out of that  room.   In  fact,  when further  cross-examined, he admitted that he never  saw  how that room was used.  Obviously, he was not in a position  to establish that this room was in the occupation of Deo  Singh appellant.   The  circumstances  of the  recovery  are  also doubtful.   According  to Inspector of  Police,  Pathak,  he observed  all the formalities required to be  observed  when searching  the house of Deo Singh.  One of  the  formalities that has to be observed is that the searching officer should give  his personal search to the witnesses  before  entering the premises to be searched and should similarly search  the witnesses  also  in  the presence of one  another.   If  the Inspector  means  that this was done, by  stating  that  all formalities  were observed, he is contradicted  by  Narsingh Mahto who says that, on his arrival, he found the  Inspector in the inner courtyard of the house, which means that he had already entered the house without observing the formalities. At  the time of recovery, it is said that the cardboard  box containing  the  eartops was kept in a corner  of  the  room covered  by a number of tiles.  The prosecution  story  thus purports  to make out that Deo Singh was foolish  enough  to keep in his room an article connected with the murder  about which  there  could  be  no  difficulty  of  identification, because  the  cardboard  box  had on  it  the  name  of  the daughter-in-law of Rohini Kuer and he kept that box in  such a  manner  under  the tiles in the cow-dung  room  that  the attention  of the,, Police would straightaway  be  attracted towards  it.  The whole story of recovery of this  cardboard box with the eartops thus sounds highly improbable. 820 The  only other circumstance, which has been relied upon  by the  prosecution,  is  the  identity  of  the  blood-stained footprint  with  that of the sample footprint of  Deo  Singh appellant.  We do not think that it is necessary to  discuss it in detail, because that evidence is, in its very  nature, a very weak type of evidence and, in fact, in the High Court even  the  third  Judge, to whom the case  was  referred  on difference  of  opinion, held that it would not be  safe  to rely on this evidence and discarded it. In  these circumstances, it is clear that it is not  at  all possible  to hold that the prosecution succeeds  in  proving the charge against any of these three persons.  As a result, Cr.   Appeal No. 141/1965 filed by the State  is  dismissed, while  the  appeals  of Ramujagar Singh and  Deo  Singh  are allowed,  their conviction and sentences are set  aside  and they  are  acquitted of the offences with  which  they  were charged.  They shall be released forthwith. Appeal 141/65 dismissed. Y.P. Appeals 142/65 and 78/68 allowed.

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