JUDGMENT
P. K. Bahri, J.
These two appeals, one by appellant Bhagat Bahadur and another by appellant Kul Bahadur, have been preferred against the judgment dated August 22, 1992 and order dated August 24, 1992 of an Additional Sessions Judge, Delhi by which these two appellants have been convicted of an offence punishable under section 302 read with Section 34 of the Indian Penal Code or having committed the murder of Smt. Pushpa Aggarwal and have been sentenced to under go rigorous imprisonment for life and to pay a fine of Rs. 1,000/- each and in default of payment of fine to further undergo rigorous imprisonment for six months.
2. The facts of the case, in brief, are that deceased Pushpa Devi was living with her husband PW-7 Arvind Aggarwal in House No. B-27, M.G. Marg. Adarsh Nagar, Delhi during the year 1987. The appellant Bhagat Bahadur was employed with them as a domestic servant at the relevant time. It is the case of the prosecution that the deceased lady, being of short-tempered nature, was not satisfied with the work and conduct of appellant Bhagat Bahadur and often used to scold him which was being resented by the appellant who used to be pacified by other family members.
3. It is alleged that on September 3, 1987, Puran Prakash and Rajeev had left as usual at about 10 a.m. for their respective shops located in Bahadurgarh Road and Pahar Ganj respectively and at about 12.30 p.m. Arvind also had gone for taking tuition from his tutor Deepak who is employed in Punjab National Bank, Model Town. Only Pushpa Aggarwal and a maid servant Munni were left behind. It is alleged that Munni also, after performing her usual daily chores, left the house and at about 2.45 p.m. Arvind had come back and found that the main gate of the house was lying open and on entering the drawing room, he, found the blood lying on the sofa and also stood splattered on the floor. He went towards the kitchen as the blood stains were leading to that place and he found his mother Pushpa lying in a pool of blood in half naked condition having numerous wounds on various parts of her body.
4. Arvind immediately contacted his neighbours and also informed his father. PW-6 Rakesh, a friend of Arvind, on being contacted, had come to the house and also saw the dead body of Pushpa lying in pool of blood. He informed the police on the telephone and a daily diary report at serial No. 10-A was recorded at Police Station Adarsh Nagar, copy of which is Ex. PW-16/B. The copy of the report was sent through Constable Sheopal to S.I. Raj Kumar, PW-24. S.I. Raj Kumar reached the place of occurrence and found that A.S.I. Jagdish Singh, PW-21, had also reached the said spot. He recorded the statement of Arvind, Ex. PW-7/A and sent the same after making his endorsement. PW-24/A. For registration of the case. It was mentioned in the statement of Arvind that the domestic servant namely appellant Bhagat Bahadur was found missing from the house and despite being searched, he could not be found and he expressed the suspicion that the said servant had murdered his mother. The F.I.R. was duly registered on the basis of the said Rukka, copy of which is Ex. PW-16/A at 4.30 p.m.
5. The Investigating Officer held the inquest proceedings, Ex. PW-24/C and prepared the order facts, Ex. PW-24/D and sent the dead body for post-mortem. He had summoned the experts who lifted certain finger prints from the spot. The investigating Officer had also lifted from the spot the broken glasses of bangles, Ex. P-1 to P-7, the broken teeth, Ex. P-2/1 to P-2/3, blood stained towel, Ex. P-4, blood stained cushion, Ex. P-5/1-2, blood stained sofa seat, Ex. P-6, blood stained pant, Ex. P-7, a blood stained dagger, Ex. P-8, blood stained cover of the dagger. Ex. P-9, a wrist watch, Ex. P-10, two tumblers, Ex. P-11/1-2, goggles, Ex. P-12 which he converted into separate sealed parcels and took into possession vide recovery memos, Ex. PW-5/B, C, D, E, F, G, H & J.
6. PW-17, Dr. L. T. Ramani, had performed the post-mortem on the dead body of Pushpa on September 4, 1987 at about 12 noon and he had found 27 incised wounds on various parts of the body including the vital parts and in his report, Ex. PW-17/A, he opined that all the injuries were ante-mortem and were caused by sharp edged weapon and injuries No. 9, 12, 13, 14, 15, 16, 18 & 19 were individually sufficient to cause death in the ordinary course of nature and death was due to haemorrhage, and shock consequent upon such injuries and time since death was about 24 hours. He had preserved the clothes of the deceased as well as the sample blood of the deceased (sic) he handed over to the police. He had also given the opinion that all these injuries were possible by the dagger, Ex. P-8 which was produced before him by the police. Later on, one knife (Chhuri) was also recovered which is Ex. P-13 and the doctor had opined that the injuries on the face and neck found on the dead body of Pushpa could have been also possible with the said knife, Ex. P-13.
7. On September 4, 1987, it is the case of the prosecution that when the investigating officer, accompanied by A.S.I. Sher Singh, PW-5 and Ashok Kumar, PW-9, close relation of the family, had gone in search of the appellant in village Samey Pur and while they were returning from the Village, they saw the appellant, Bhagat Bahadur present at the bus stand of Libaspur and he was apprehended and was brought to the police station and was interrogated but as no clue was found, the appellant Bhagat Bahadur was handed over to the family of the deceased and they were directed to keep a watch on his activities. It is alleged that on September 6, 1987, appellant Bhagat Bahadur was interrogated in presence of S.I. Jagdish Singh and PW-9 Ashok Kumar and he made a disclosure statement that he could get his two companions namely Kul Bahadur and Krishan Bahadur arrested and also could get the blood stained clothes recovered which had been kept at the house in Samey Pur after those had been washed. The disclosure statement was reduced into writing which is Ex. PW-9/B and thereafter the appellant Bhagat Bahadur had led the police party to Street No. 10 to a quarter near Prayag Tube Factory and pointed out the two other accused namely appellant Kul Bahadur and Krishan Bahadur sitting in that particular room and pointing out Memo, Ex. PW-9/B was prepared. The other two accused were also arrested and on interrogation, Kul Bahadur, appellant, made a disclosure statement, Ex. PW-9/G to the effect that his and Bhagat Bahadur’s blood stained clothes had been kept in the quarter and he could produce the clothes, knife and shoes and then he produced the knife, Ex. P-13 wrapped in the clothes, pant, Ex. P-14. banian. Ex. P-15, another pant, Ex. P-17 and Shirt, Ex. P-18 and one pair of shoes, Ex. P-16/1-2, all blood staring lying underneath a trunk which were converted into separate three packets which were sealed and taken into possession vide Recovery memo, Ex. PW-9/F. The other accused, Krishan Bahadur, had also allegedly made a disclosure statement on similar lines. All the three accused are also stated to have pointed but the place of occurrence but that evidence was not admissible in evidence as the place of occurrence was very much in the knowledge of the police before even arresting the accused.
8. The case property was sent to C.F.S.L. and the C.F.S.L. Reports, Ex. PW-24/G, H & J were received which showed that human blood of ‘B’ group was the blood of the deceased Pushpa and the same was detected on the pieces of broken teeth, towel, cushion, pant, dagger, knife, petticoat, blouse, on pair of shoes kurta and pant and while human blood was detected on other articles but the group of blood could not be ascertained.
9. The learned Additional Sessions Judge has brought home the offence to these two appellants on the basis of circumstantial pieces of evidence which can be enumerated as below :-
1. That the appellant Bhagat Bahadur was employed as a domestic servant with the family and had a motive to kill Pushpa as he resented the scolding being given to him by Pushpa on different occasions;
2. On the day of the occurrence, Bhagat Bahadur had disappeared from the house and even after the dead body of Pushpa was recovered, he had not come back and he was present in the house with the deceased after other family members had left the house including the maid servant :
3. Appellant Bhagat Bahadur had made a disclosure statement which led to the arrest of his two companions in the crime;
4. Kul Bahadur was arrested and he had made a disclosure statement and had got recovered the blood stained clothes, blood stained knife and the blood stained pair of shoes which had the blood of deceased on them.
10. The Additional Sessions Judge held that the chain of circumstances is so complete as to leave no room of any hypothesis which could be indicative of innocence of the appellants and thus he found both of them guilty of the murder of Pushpa under section 302 read with Section 34 of the Indian Penal Code.
11. The appellants could not engage any counsel and on their request, we had appointed S/Sh. Jatinder Sarin and Sandeep Sethi. Advocates as amices curiae on State expense to represent these two appellants respectively. We must express our appreciation for the labour put in by these two young lawyers in assisting this Court in deciding these two appeals. We also feel that the State Counsel Ms. Mukta Gupta had also done a commendable job in preparing the case thoroughly and putting across the contentions in support of the conviction of the appellants.
12. The learned counsel for the appellants have vehemently argued that no incriminating circumstances, which have been relied upon by the prosecution, have been proved beyond shadow of a reasonable doubt. They have urged that practically there was no motive for the appellants to have committed the murder of this hapless lady in such a gruesome manner. They have urged that there is no eye witness to the occurrence and appellant Bhagat Bahadur was detained by the police and was subjected to coercive methods before a disclosure statement was extracted from him and the belated disclosure statement imputed to Bhagat Bahadur, being involuntary, is not admissible in evidence. They have urged that another disclosure statement imputed to Kul Bahadur is also not admissible in evidence because the facts which have been incorporated in the disclosure statement of Kul Bahadur had already come to the knowledge of the investigating officer through the alleged disclosure statement of Bhagat Bahadur.
13. They have urged that the prosecution has suppressed material evidence from the court with regard to the result of the opinion of the Finger Print Expert in respect of the finger prints lifted, from the spot and an adverse inference should be drawn that if such evidence would have been produced, it would have indicated that the said finger prints lifted from the spot were not of any of the appellants. They have also urged that mere recovery of blood stained articles, even if they can be said to have been recovered to the instance of the appellants, is not sufficient to prove beyond shadow of reasonable doubt that the appellants have committed this murder. It is urged that the particular piece of circumstantial evidence could be explained by hypothesis of appellants having only the knowledge of presence of such blood stained articles in a particular room but no inference could be drawn from such a fact that the said blood stained clothes belonged to the appellants or that the appellants had kept the said incriminating article in that room. They have referred to a number of judgments in support of their various contentions.
14. On the other hand, the learned counsel for the State has urged that the Additional Sessions Judge was right in coming to the conclusion that all the circumstances enumerated above stand duly proved beyond shadow of any reasonable doubt and they by themselves complete the chain of circumstances which would lead to irresistible conclusion that the appellants have committed the murder of the said lady. She has urged that there is no possibility of any other hypothesis from the aforesaid circumstances proved in this case which could point out to the innocence of these appellants. She has urged that the appellant Bhagat Bahadur had the motive to kill Pushpa who was his daily tormentor as she was scolding him frequently and he was found to be resenting such scolding and was being pacified by other family members now and then. She urged that said motive prompted this Bhagat Bahadur to seek assistance of his friend in doing away with the life of his tormentor and he was found missing from the house soon after the murder and had not returned of his own to the house and if he had not been guilty, he would have remained present in the house where he was working as a domestic servant admittedly.
15. She has urged that the appellant Bhagat Bahadur had been absconding for a day which would show that he had a guilty mind. She has pointed out that the finger print results were of no use as the report of the finger print expert, available on the police file, indicates that the finger prints were not clear enough to reach any definite conclusion. She has pointed out that the blood stained clothes were of two appellants even though prosecution has not pinpointed as to which clothes belong to appellant Bhagat Bahadur, and which clothes belong to appellant Kul Bahadur, still there is disclosure statement of both the appellants showing that these clothes belong to these two appellants and to no one else. Hence, she has urged that keeping in view all the circumstances, the Additional Sessions Judge was right in bringing home the offence to the appellants beyond shadow of reasonable doubts. She has also referred to some judgments in support of her contentions.
16. It is settled law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis, except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely anguish of the court can form the basis of conviction and more serious the crime, the greater should be the care taken to scrutinise the evidence lest suspicion takes place of proof. (See Dhananjoy Chatterjee alias Dhana v. State of West Bengal, .
17. Now we shall deal with the circumstances which have been relied upon for bringing home the offence to the appellants in order to determine whether all those circumstances have been proved or not beyond shadow of reasonable doubt.
18. CIRCUMSTANCE NO. 1
The statements of the family members of the deceased namely PW-1 Rajeev, PW-2 Puran Prakash and PW-7 Arvind are consistent in their deposition that Pushpa was not happy with the conduct and the work of appellant Bhagat Bahadur a domestic servant working with the family for some period prior to the date of the occurrence. They have deposed that Pushpa used to scold Bhagat Bahadur which scolding Bhagat Bahadur used to resent and he used to feel angry over the same and used to be pacified by the family members. From the cross-examination of these witnesses, nothing came out which could show that these statements of the family members are not truthful, rather they find corroboration from the averments made in the F.I.R. itself. So, the Additional Sessions Judge was right in coming to the conclusion that this particular circumstance stands established beyond any reasonable doubt.
19. A plea was made during the course of the evidence to show that in fact there were found some scratches on the lock of the almirah which contained some valuables belonging to the family. But, unfortunately for the prosecution, this attempt made by the prosecution witnesses to impute another motive to the assailants that they were intending to rob the family of valuables had completely failed inasmuch as the deceased was herself wearing gold ornaments at the time she was murdered and that jewellery was not even touched by the assailants. If the motive had been to commit robbery, the assailants would not have left behind the easily available jewellery which was on the person of the deceased after she had been killed. There was no mention of any scratches appearing on the almirah in the F.I.R., Even no photograph has been taken of any such almirah depicting any such scratches.
20. So, the only motive which has been proved in this case is that Bhagat Bahadur was having a grouse against Pushpa because he was being subjected to some harsh scolding on the part of Pushpa.
21. It is not clarified by the family members in their statements in Court as to what sort of language Pushpa had been using while scolding Bhagat Bahadur for his poor performance as a domestic servant. Be as it may, we agree with the finding of the Additional Sessions Judge that this appellant, Bhagat Bahadur, has been subjected to some scolding by Pushpa which was resented by Bhagat Bahadur.
22. CIRCUMSTANCE NO. 2
If we go by the facts mentioned in the F.I.R., it was tried to be shown by the family members of the deceased that it was Bhagat Bahadur who was last seen in company of deceased Pushpa but this fact has not been proved by the prosecution during the course of the evidence. Rather, PW-7, the author of the F.I.R. and son of the deceased, categorically stated on oath that on the day of occurrence, Bhagat Bahadur had left the house at 10 a.m. and Arvind himself left the house later on whereas the maid servant Munni Devi, PW-8 remained with the deceased. So, it was Munni Devi, in all probability, who had seen Pushpa alive for the last time, Munni Devi, in her testimony, has not deposed that at the time she left at about 12 noon or 12.30 p.m. Bhagat Bahadur had come back. So, it cannot be said that the deceased was last person to be seen in company of appellant, Bhagat Bahadur.
23. It has been urged before us by the counsel for the State that Arvind had deposed that Bhagat Bahadur had left the house on the day of the occurrence without taking permission. However, he admits in cross-examination that Bhagat Bahadur used to have some off days on holidays. It is apparent that the day of the occurrence was not a declared holiday as we understand because Puran Prakash and Rajeev, both admittedly were stated to have left their house for attending their work on their respective shops. The market was no doubt open on that day.
24. Learned counsel for appellants has not been able to show us that the said day of occurrence was any national, religious or local holiday. It is not necessary that a domestic servant would be allowed to have an off day only on any particular national, religious or local holiday. A domestic servant can be given any day off by the family. According to statement made by Bhagat Bahadur under section 313 of the Code of Criminal Procedure, he had on that day left for enjoying his off day and that is why he was not present at the time of alleged murder of Pushpa. At any rate, it is not possible to hold that Bhagat Bahadur was last seen in company of Pushpa when she was alive. If that is so, this particular circumstance cannot be said to have been proved beyond shadow of reasonable doubt.
25. It is true that at the time the dead body was recovered and police was called, Bhagat Bahadur was not available in the house. Although Bhagat Bahadur had been shown to have been arrested by the police on September 6, 1987, but it has come out in evidence that Bhagat Bahadur was available to the police from September 4, 1987 onwards and had been interrogated but was not arrested. The suspicion on Bhagat Bahadur had been thrown by the family even in the F.I.R. yet the police, for reasons best known, had not arrested Bhagat Bahadur on September 4, 1987 when he had become available to the police.
26. PW-9, Ashok Kumar, who is a close relation of the deceased and in whose presence Bhagat Bahadur was ultimately arrested and interrogated, admitted in his statement that Bhagat Bahadur had been apprehended by the police on September 4, 1987 and after interrogation, he was allowed to go. Even the investigating officer S.I. Raj Kumar admitted that he had apprehended Bhagat Bahadur just on the following day of the occurrence and had interrogated him but he deposed that he allowed him to remain in the custody of the family members and had given directions to the family members to keep a close watch over the movements of Bhagat Bahadur. None of the family members have made any reference to this fact in their statements that Bhagat Bahadur remained with them from September 4, 1987 till he was arrested on September 6, 1987.
27. We had gone through the case diary maintained by the investigating officer and we were shocked to find that there appeared Medical Legal Certificates of Bhagat Bahadur and Kul Bahadur. It appears that both of them were got medically examined under the orders of the Metropolitan Magistrate when they were produced for having the remand on September 7, 1987. The M.L.C. of Bhagat Bahadur showed that he had contusions three in number on his back. Similarly, Kul Bahadur had bruises on his right arm and the back. For the sake of convenience, we mark those M.L.Cs. as C-1 and C-2. We have taken out those M.L.Cs. from the police file and have placed them in the appeal file. It is really not fair on the part of the investigating officer to have not placed these vital documents on the judicial record and it is also not fair on the part of the investigating officer not to make any reference to these Medical Legal Certificates of the appellants in his testimony.
28. It is to be emphasised at this stage that both the appellants were not financially sound enough to engage any counsel to defend them at any stage of the proceedings. They were no doubt provided a counsel at State expense to defend them before the Court of Session but under the law, as laid down by the Supreme Court, the accused should have been given a defense counsel even on the very first day when they were produced before Metropolitan Magistrate for having the remand.
29. It is unfortunate that the counsel who was provided to the appellants during the trial before the Sessions Court had not perhaps discussed the matter with the appellants in any details so that the appellants could have apprised him of their having any injuries when they were produced before the Metropolitan Magistrate after they had been formally arrested. To say the least, we must condemn the role of the investigating officer in keeping back such vital pieces of evidence from the court. The investigating officer’s role ought to have been to place all material facts which had come to his notice before the court during the trial, particularly the Medical Legal Certificates of the appellants should have been filed along with the challan before the Metropolitan Magistrate. Such unfair tactics adopted by the investigating officer definitely throw a lot of doubt with regard to the credibility of the so-called recoveries affected at the instance of the appellant.
30. It is not possible then to come to any conclusion that in fact the appellant Bhagat Bahadur was absconding from the day of occurrence and was not available to the police. It was urged before us by learned counsel for the State that being a domestic servant, it was in the normal course of conduct that the appellant should have come back to the house and if he was not involved in the commission of the murder of Pushpa, it was all the more reason that he should have been available in the house. Even if he had gone for a short while on the day of occurrence in the morning, it would have been the normal conduct if he would have come back to the house after attending to his personal work on that day.
31. We do not agree. After all, there is no evidence that Bhagat Bahadur had left the house for any ulterior motive of collecting his companions in order to bring them back to commit the murder of Pushpa. Merely remaining away for some hours from the house would not be a suspicious circumstance when it is quite clear that Bhagat Bahadur was not the person who was seen in company of Pushpa when Pushpa was last seen alive.
32. It is also settled law that mere absconding is not such vital circumstance which can be considered to show that the absconder was having any guilty mind. A person absconds for varied reasons, one of them could be to remain away from the police when he comes to know that police was seeking him and a suspicion had been thrown on such a person regarding his involvement in the crime. This circumstance, of course, stands proved that the appellant had not come to the house when the dead body was recovered and when the police was in the midst of carrying out the proceedings at the spot.
CIRCUMSTANCE NO. 3
33. The appellant, Bhagat Bahadur is stated to have, after being arrested, made a disclosure statement that he could point out his two companions and then he is said to have led the police party to Samey Pur, Badli and pointed out a room in a factory where the other two accused persons were found sitting.
34. This disclosure statement in our view, could not be considered to be voluntary when we find that soon after this appellant was produced before the Metropolitan Magistrate, he was found to have on his person some injuries which were not explained by the investigating officer. It means that Bhagat Bahadur must have been subjected to some beating before his disclosure statement was recorded. In view of this, we have to hold that this circumstance cannot be deemed to have been proved beyond shadow of any reasonable doubt.
CIRCUMSTANCE NO. 4
35. It is the case of the prosecution that Kul Bahadur, after being arrested, had made a disclosure statement and had got recovered the blood stained clothes, blood stained knife and blood stained pair of shoes which had been later on found to have the same blood group as that of the deceased.
36. At the outset, we may mention that even the disclosure statement of Kul Bahadur could not be considered to be voluntary inasmuch as he had also injuries on his person which could have been given by the police by beating before recording his disclosure statement. Assuming for the sake of arguments that the blood stained clothes and a blood stained knife and a pair of shoes having blood of the deceased had been found in the room occupied by Kul Bahadur, even then the same cannot be said to be any incriminating circumstantial evidence against even Kul Bahadur inasmuch as there is no evidence led on record by the prosecution that the said room was in exclusive possession of appellant, Kul Bahadur. We hold that this particular circumstance has not been proved beyond shadow of reasonable doubt.
37. Even otherwise, a disclosure statement which in the present case is recorded is quite belated. No disclosure statement, admittedly, was made by the appellants when they were actually apprehended on September 4, 1987 and were interrogated and then were interrogated on the following day.
38. In State v. Hukan Chand, , a disclosure statement was made by the accused after 3/4 days and it was held that this shows some suspicion about the voluntary nature of the disclosure statement, apart from other circumstances appearing in that case.
39. In the present case also, the disclosure statement has been shown to have been made after interrogation of the appellants for three days. Keeping this circumstance also in view, we hold that these disclosure statements are not without suspicion.
40. In case of Rahman v. State of U.P., AIR 1972 SC 110 : (1972 Cri LJ 23) it was found that the appellant in that case was concealing himself for nearly a month, though he must have known that he was wanted by the police. It was held by the Supreme Court that absconding by itself is not conclusive either of guilt or of a guilty conscious, for a person may abscond on account of fear of being involved in the offence or for any other allied reason.
41. To similar effect are the observations made by the Supreme Court in case of Matru alias Girish Chandra v. State of U.P., AIR 1971 SC 1050 : (1971 Cri LJ 913).
42. In K. Mohammed v. State of Kerala, AIR 1963 Kerala 54 : (1963 (1) Cri LJ 175) a Division Bench of the said Court held that instances are not rare when rustics in our country even when they are absolutely innocent behave as guilty persons and their absence from the house for three or four days in fear of the police cannot create any presumption of guilt.
43. In Narsinbhai Haribhai Prajapati v. Chhatrasinh 1977 Cri LJ 1144 : (AIR 1977 SC 1753), the only evidence which was proved was that there was a motive of the appellant for committing the murder and some blood stained clothes and dharias had been recovered at the instance of the accused. The Supreme Court held that such circumstances are wholly insufficient for sustaining the charge of murder. In the said case, the blood stained shirt and dhoti was recovered from the person of the accused and dharias were seized from the house of the two accused.
44. Learned counsel for the State has referred to Ismail v. Emperor, AIR 1946 Singh 43 : (1946 (47) Cri LJ 548) which, of course, lays down the law that disclosure statement of the accused and subsequent conduct of the accused in pointing out the co-accused is admissible in evidence under Section 27 of the Evidence Act. There is no dispute about this proposition of law. In the present case, we have found the disclosure statement of Bhagat Bahadur being not voluntary, so nothing turns on the evidence that he pointed out the two other accused.
45. In well-known case of Prabhoo v. State of Uttar Pradesh , the Supreme Court had clarified the provisions of Section 25 to 27 of the Evidence Act by laying down that any statement of the accused that with a particular weapon of offence, he had committed the murder is not admissible under Section 27 of the Evidence Act as it does not lead to any discovery of fact within the meaning of Section 27 of the Evidence Act and even the statement of the accused that blood stained shirt and dhoti belong to him is not such a statement which leads to any discovery within the meaning of Section 27. It was laid down that it is fallacious to treat the fact discovered within Section 27 as equivalent to the object produced; the fact discovered embraces the place from which the object was produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. So, it was held that it is not legally permissible to admit evidence of the alleged statement of the accused that the axe had been used to commit the murder or the statement that the blood stained shirt and dhoti were his.
46. In the present case, the alleged disclosure statements of the two appellants that the blood stained clothes belonged to them are clearly not admissible in evidence under Section 27 of the Evidence Act in view of the settled position of law mentioned above.
47. In the present case, the prosecution has not led any evidence to show as to whom those blood stained clothes, shoes and knife belonged. Relations of deceased have not been examined by the police to identify even the clothes allegedly belonging to Bhagat Bahadur, the domestic servant.
48. The learned counsel for the State has drawn our attention to the Judgment of the Orissa High Court given in case of Narasingha Karwa v. The State, 1975 Cri LJ 1560 which lays down that although no information leading to discovery of weapon of offence was furnished by the appellant, yet his conduct in leading the search party to the place of recovery and his bringing out the same from the bush is relevant under Section 8 of the Evidence Act.
49. Even assuming for the sake of arguments that the conduct of appellant, Kul Bahadur, in bringing out the blood stained clothes, blood stained knife and blood stained shoes from underneath a trunk lying in a particular room is admissible under Section 8 of the Evidence Act, even then the said circumstance by itself is not sufficient to lead to any irresistible inference that the said appellant had committed the murder of Pushpa. Such conduct would only mean that perhaps this appellant had knowledge that said incriminating articles were lying at that particular place. But that would not mean that he had placed those articles at that place and he was concerned with the commission of the murder of Pushpa.
50. It is not for this Court to answer the query as to if the appellants are not guilty, who else is guilty of the offence. We may quote the observations of the Supreme Court in this connection in case of Shankarlal Gyarasilal Dixit v. State of Maharashtra, :-
“Our judgment will raise a legitimate query. If the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely ? The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of different persons in making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. In the instant case, the dead body of a tender girl, raped and throttled, was found in the appellant’s house and, instinctively, everyone drew the inference that the appellant must have committed the crime. No one would pause to consider why the appellant would throw the dead body in his own house, why would he continue to sleep a few feet away from it and whether his house was not easily accessible to all and sundry, as shown by the resourceful Shrinayaran Sharma. No one would even care to consider why the appellant name was not mentioned to the police until quite late. These are questions for the Court to consider.”
51. In view of the above discussion, we hold that in the present case, the prosecution has, in our view, miserably failed to prove beyond shadow of doubt that the appellants could be convicted for the offence of murder of Pushpa on the basis of the circumstantial evidence, as discussed above.
52. We allow the appeals and set aside the convictions and the sentences of the appellants and acquit the appellants of the charges. We direct that they be released from the Jail forthwith if not required to be detained in any other case.
53. Appeal allowed.