RAGHAV PRAP._ANNA TRIPATHI versus THE STATE OF UTTAR PRADESH

3 ~.C.R. SUPREME COURT REPORTS

RAGHAV PRAP._ANNA TRIPATHI

THE STATE OF UTTAR PRADESH (S.K. DAs,J. L. KAPUR, A.K. SARKAR, M. HIDAY.A.· ' TULLAR and RAGHUBAR DAYAL, JJ.)

Oircu'f118tantial evidence-Murder-No direct evidence-Sufficiency of proof-Inference from abscnnding-lriference from non-recovery of jup-lnference from presence of accused i11 houae where murder wa,/i alleged to have taken place-Indian Penal Ooae, ss. 176, 201, 302.. ·

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 SinJl'h and Udham Singh were convic· ted under section 201 IPC. Ramanuj Das was also convicted under section I 76 IPC. Their appeals were dismissed by the High Court. They came to this court by special leave. The appeal of Rar:hav, Mohan Singh and Udham Sinfl'h 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. I 76 IPC was allowed by majority.

.. . , Helli (Kapur and Hidayatullaha, J J dissentin!?) that there ;~:'."";"'"Wl\:<;J. .no direct evidence ahout Rae;hav committinrt the· murder • • .,.. of ~amla and Madhusudan. There was no direct evid,nce ".~. ". •. abmtt his carryin!! away their dea<l bodies in the jeep. There ',. 1:-·was no direct evidence about Ramanuj Das or anv other -' · accused being party to the removal of the dead bodies from ·the house. 'The entire case· was based on circum•tantial evidence. Th~ circumstances proved a~ainst Raghav were ; . not sufficient to support the finding that he had committed the \ murder. The mere abscondinl( may lend weir:ht to the other evidence establi•hing the guilt of the accused but bv 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 l human bl~od-stain anrl 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 .Tai Devi played in the removal of the dead bodies. The · fact that they were in the hou•e and could have possibly known of the removal of the dead bodies,.?f that was fact

1961 Raghav Prapannc Trlpathi •• Stale of U. P.

would not by itself establish that they assisted in the removal vf the bodies. The conviction of the appellant was not justified on the material on record.

Per Kapur and Hidayatullah JJ. The strained rela-tion~ 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 sirr1ultaneous 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 abscond-ing were circumstances from which the Courts below were justified in concluding that Kamla and her son were murdered and Raghav had 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 had 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 'Yhen they do disappear and cannot be traced 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 circumstance which a·Court can take into consideration in d...'!termining the g"'Uilt of an accused person.No case under section 20 I 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 di<iappear or giving any inform .. tion respecting the offence which person knows or believes to be false. It was not proved that the two appellants had caused any evidence to disappear. There may be 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 hand in it, but .still that remains suspicion, although 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 Okintaman Lagu v. Tke State of Bombay, (1960] 2 S.C R. 460, Govinda Reddy v. The State qf Mysore, A.I.R . • 1960 S.C. 29, Stephen Seneviratnan v. Tke King. A.I.R. 1936 P.C. 289, Powell's case, (1854) 2 & K 309, Rex v. Horry, (1952] N.Z.L.R. 111, Regina v. Onufrejczyk, (1955) 1 Q.B:· 338, relied upon~ ·

3 S.O.R. SUPREME COURT REPORTS

Rex v. Hoage, (1833) 2 Lew. 227, referred to.

CRIMINAL:APPELLATE JURISDICTtON: Criminal Appeal No. 72 of 1962,

Appeal by Apeoial leave from the judgment and order dated February 8, 196·!, of the Allahabad High Court in Criminal Appeals Nos, 1728 and 1739of1961 and Referred No. 125of1961,

Jai Gopal Sethi. A.N. Jfulla, J.B. Geyal, O.L. Sareen and R.L. Kohli, for the appeJJants.

G.O. Mathur and O.P. Lal, for the respondent,

1962. M1ly 4. The Judgment of Das. Sarkar, Dayal, JJ,, was delivered by Dayal, J. The Jurlg-ment of Kapur a.nd Hidayatullah, JJ., was deli-vered by Kapur, J.

RAGHUBAR DAYAL, J.-Raghav Prapanna Tripathi, hereinafter called Raghav, Ramanuj Das, Jai Devi, Mohan and ('dham Sin!!'h, appeal by special leave against the order of the High Court of Allahabad, dismissing their appeal against their conviction by the l'essions Jurlge, Etawah. Raghav was convict.ad and sentencerl to death under s. 302 I. P .. C. He and the other apppellants were ali:m convicted of the offe11ce under f!. 201 I. P. C. Ramanuj Das was convicted of the offence under s. 176 I. P. C. also.

The prosecution caf!e, in brief, is that Raghav

shot dead his first wife Kamla, and thdr son Madhusudhan, aged about .4 years, at about sunset on April 5, 1961, at their house in village Hamirpur R.oora, DiAtri<'t Etawah. The motive for this con-duct is said to be Raghav's :not caring for Kamla and ill-treating her after his marrying one Bimla -...... in l 954. Kamla had to go to her father's place and stay there for ubout two years on account of the all,.ged ill-treatment she got at her husband's

1961 Raghau Prapanna T.ipa11,; v. State of U. P.

Raghubar Dayal J.

1962 Baghav Prapanna Tripaihi •• State of U. P. Raghubar Dayal J.

hands. She was, howe'\"er, brought back by Rama-nuj 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, 11161, Ramariuj Das had ultimately pro-mised to Lakhan Prasad that he would execute the necessary tranRfer deed on Monday following and that Ra11hav left the place during their conversa-tion 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 con-

nection 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 I. P. C. Lachman Das was the Mahant of the temple in village Harnirpur Roora. Narayan Das, father of Raghav, and Ramanuj Das were his disciples. On Lachman Das, death, .l:taroanuj Das succeeded him as Mahant, though Narayan Das was v the senior disciples, as Narayan Das had taken to secular life. Ramanuj Das, Raghav, J ai Devi, mother of Raghav. Raghav's wife Kamla, and Madhusudhan, all lived as joint Hindu family in the house in which there was the temple. Mohan Singh was servant of Ramanuj Das.. Udham 1-ingh was also alleged to be servant of Ramaauj Das. '

Raghav mostly lived at Lucknow with Bimla and his sisters who were studying there. He is

3 s.c.R.

law graduate. He possessed jeep oar 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 report at 9.20 a. m. on April 7, 196 L, 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 son of Narain r>as, 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 car. There is 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 would go to the Police i::ltation and make report. The Mahant then asked me to wait and to go only after Thakur Dal-ganjan Singh had come, I did not listen to him, although he kept on forbidding. I have come to make 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 pre-pared 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 m single bundle.

. The Chemical Examiner found the plasters in 5 of the-e packets to be stained with blood. The

1969 Ragh"v Prapanna 'Iripathi Stat• "· of U. P. Raghubar Dayal J,

RaghalJ Prapanna Tripathi v. Sta•e of U. P. Boghubar Doyal J.

Serologist could not determine the origin of the blood on account of its disintegration.

The positions of the plasters found blood· stained 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 s.tained 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-Inspector Brij Raj Singh Tomer did not find any of the appellants in the village.

On April 12, 1961, Bashir Hussain, Deputy Superintendent of police, vfsited the spot and recovered suspected blood-stained earth frooo 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 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 dis-integration.

. On April 16, 1961, Bashir Hussain recovered Raghav's shirt and pyjama from ISnowhite, Clean-ers & 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 diitect the origin of the blood.

The police failed to discover the dead bodies

of Kamla and Madhusudhan .and also the jeep car.

3 S.C.R. SUPREME COURT REPORTS 245

Raghav surrendered in the Court of the Magistrate at Barabanki on April 20. Mohan was arrested on April 9, Rananuj 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 result of the investigation, ·the appel· lants 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 Madhusu-dhan. Neither is there direct evidence about his carrying away the dead bodies of Kamla and Madhusudhan in the jeep that night from village Hamirpur RoOl'a as aileged for the prosecution. There is no direct evidence about Ramanuj :Qas or · any other accused being party to the removal of the dead bodies from the house. The entire case against the appellants depends on circumstan-tial evidence. ·

We may deal with the circumstances which the learned t:)essions Judge and the High Court found established and from which they concluded that Raghav murdered Kamla and Madhusudb,an and that thereafter, Raghav, Mohan and Udham Singh, with the connivance of Rama-nuj Das and Jai Devi, carried away the dead bodies in the jeep and disposed of them. These circumstances are-

1. On April 6, 1961, Kamla and Madhu-sudhan were in the house of Ramanuj Das.

2. Kamla and Madhusudhan were la.st seen alive on April 5, 1961, in the evening. 3. On April 5, 1961, Raghav Prapanna was also in the house of Ra.ma.nuj Das.

1962 Roghav Prapanna Tripathi v • . StateofU.P. Raghubar Dayal J

1962 Raghav Prapanna Tripathi •• Stale of U. P. /laghubaT Dayal J.

4. On April 5, 1961, at about 5 or 6 p. m. three gun shots were fired on the roof of Hamanuj Das.

5. On April 5, 1961, at about 9 or 11)

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 post card sent by his sister that Kamla had reached Lucknow safely.

On April 7, l 96i, 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 Rama-nuj Das from 7 different plaoes.

11. All the accused absconded. after the alleged murder.

shirt and

pyjama

Blood-stained

belonging to Raghav Praparina were reco-vered 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 best efforts.

On behalf of the appellants it is not dispute

that the circumstances numbered 1, 2, 7, 9, 10, 1

3S.C.R. SUPREME COURT REPORTS

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 Ma.dhusudhan and that he and the other appellants were parties to the re-moval of the dead bodies.

Karola and Madhusudhan were in the house on April 5, 11!61. They were not seen after the evening of April 5, 1961,

The third circumstance is disputed, Ragha.v 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 jeep that night. He saw this on Tuesday, April 4, 1961 was Tuesday. Even if he was in the village on April 5, his presence in the house does not put him in such 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 en-quiries about Kamla and Madhusudha.n when they were not seen in the house on April 6, is 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 reasonable sus-picion that Raghav did fire those shots, that he

1962 Ragha• Prapann• Iripathi 9. State of U. P. Bathubar Dayal J.

1962 Raghav Prapann1 Tripathi v. State of U. P.

Raghubar po.ya/ J.

fired them in the room and that he shot dead his wife and son by that firing· The. conn{ ction bet-ween 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 pro· ved to be stained with human blood, Again we a.re 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 Madhnsudhan. These circumstances have; there-fore, no evidentiary value.

The facts that Kanila. and Madhuaudhan 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 ally other place.

In this connection, reference may also be

made to circumstance No. 8. Exhibit ·Ka-7 ~as addressed by Govind Kumari, sister of Raghav, to Rama.nuj Das on April 6, 196 l, from Lucknow. It is stated in this post.ca.rd that 'Raghav etc., had arrived safely and that as 'bhabi' had also arrived, it was n·ot necessary for her to cook food etc.'. Thia letter, according to the post-mark, reached Samrin Post Office on April 10, and was not deli· vered till April 13, to the addressee, as he was not present, and was ultimately handed over to

3 S.C.R.

the Deputy Superintendent of Police, in compli-ance 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 Karola's reaching Lucknow on April 6. There is however no evidence on record about Raghav's having hand in the sending of this letter by Govind Kumari. She was not examined to prove the contents of her Jetter and to explain to whorn 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 purpose and at the instigation of .Kaghav. The evidentiary value of this postcard is nil and the conclusions that Raghav got this letter sent is not justified when there is no evidence to that effeot and there is no definite proof that the expression 'bhabi' referred to Kamla.

19111 Ragl.ao p,apanna Tripathi v. State of U. !'.

Raghurhar Da.>al J.

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 Madhusu-dhan, as it is expected that if she knew that they were at Hamirpur Roora, she would have conve-yed 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 Karola. 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 iJlicit 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 iii this respect

1962 Raghori Proponna Tri'jJathi •• State ofU. P. Raghubor Dayal J.

went un-heeded. It follows, therefore, that omis-sion 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 .Madhµsudhan 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 circumstanoe, in 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 lod-ged 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 stajned with blood by the Chemical Examiner. The bloodstain has not been proved to be "of human origin. In the circumstan-ces, this circumstance has no evidentiary value in

3 S.C.R. SUPREME COURT REPORTS 251

connecting Raghav with the offence of murder. Further, the shirt wa.s 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 pro-prietor of the Snowhite Cleaners & Dyers to the effect that when Raghav gave hiip. 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 oonsidered Babu Lal's statement to be untrue as he had signed the recovery list which staterl that the shirt had 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 witness to the recovery be taken to be his statement about the correctness of its contents. that statement would be inadmis-sible in evidence in view of s. 162, Cr. P. C.

The last circumstance, as 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 thP 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 remo-ving the corpses. If it had been recovered and human bloodstains had been found on it, there would have been some evidence against the accu-sed a.bout 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

Raghav Pra~anno T1ipathi v. StateafU. P. Raghubar Doyal J.

Raqha'O Prop3nna Tripalhi v. Stale a/ U. p.

Raghubar Doyal J.

it would have afforded evidence of existence of human bloodstains and thus of its having been used to remove evidence of murder. This circum-stance has therefore .no evidentiary value.

In this connection, we must refer to the un-usual conduct of the Magi•trate in forwarding the letter of request by the Investigating Officer under s. 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 Bara-banki, and the whereabouts of the jeep at the time. The Investigating Officer could have inter-rogated 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 rPply given by the accused to such query of the Inves-ti11ating Officer, cannot be used in evidence in view of s. 162 of the Code of Criminal Procedure.

We have now dealt with the pieces of circum-

stantial evidence which were accepted by the Courts below and are of opinion that those circumstances are not sufficient to support the finding that Ral!'hav committed the murder of Kamla and Madhusudhan. The facts allPl!'ed to const.itute mot.ivEi for Raghav to commit the murders do not nereeR•.rily provide such motive. R>Lghav married Bimla in 1954 and for seven yAars he appAars tn have conti nued his marital relations with Kamla as well. Madhusudhan was born in 1957. He mav not be showing the same affection tci Karola after his marriage with Bimla as before. There mi11ht have been something of an estrangement in his relations towards her. But all this would not afford motive for murdering her, and also their son Madhu-sudhan. 'Ihe suggestion to Ramanuj Das to· pay

3 S.C.R. SUPREME COURT REPORTS I

Rs. 10,000/- to Kamla and also to transfer 90 Bigha.s of land to her, even if true, need not have caused such resentment to Raghav as to decide on murdering his wife and son. There is nothing on the record to indicate how such transfer of ca.sh and property would affect the toti;Ll 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 mahant of the mutt or temple. The propnty would go to the successor of Ramanuj Das. Raghe.v who was leading secular life, will not succeed to the Ma.hantship, just as his ftther Narain Das, though senior disciple of Lachman Das, did not succeed to it. His leaving the place when Ra.manuj Das was approached by La.khan Das to transfer cash and land to Karola, does not neces-sarily indicate that he left a.<.1 he resented the suggestion. 'l'here is no evidence that he raised any protest at the time or indicated by any expresPion that Rama,nuj Das should not do so. We do not corn~ider it reasonable to conclude, from the mere fact of his leaving the place, that he did so on account of such keen resentment as would make him commit the murders of hi11 wife and son.

Raghao Prapanna Tripathi SI.le of '· U. P.

Raghubar Dayal J.

Lastly, there is no such circumstantia.1 evi-dence which would establish that the appellants had removed and concealed the dead bodies. We have alreadv referred to the absence of evidence a.bout the ·dead bodies being carried in the jeep that night by Raghav. There is no evidence a.bout the part which Ra.manuj D11.s or Jai Devi played in the removal of the dead bodies. The fact that they were in the house and could hav~ possibly known of the removal of the dead bodies, if that was fact, would not by itself establish that they . assisted in the removal of the bodies. We are therefore of opinion that no offence under s. 201

1962 Raghati Prapanr.a Tripathi v. Stale of U. P. Raghubar Doyal J,

Kapur J.

254 SUPREME OOURT REPOR'l'S [1963] .

I. P. C. has been established against the appel-lants.

Further, no offence under s. 176 I. P. C. can be held proved B!!'ainst Ramanuj Das when there is no proof' that Kamla and Madhu•uilhan were murdered. As member of' t.he villaq;e Panchavat he was bound to convev inf'orm'l.tion to the near· P-•t Magistrate or Officer:in-charge of thA nearest Police Station about the commission of' an offence under s. 302, I. P. C., onlv when .a murder had . been committed and he knew about it.

The conviction of the appellants for the

various offences is therefore not iustified on the material on record. We therefore allow the appeal, ~et aside their oonviction and acquit them of the offences thev have been convicted of. They will be released forthwith from custodv, 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 AJ.laha-bad confirming the conviction and sentences passed on the appelh.nts. Of the appellants Raghav Prapanna Tripathi was convicted of murdering his wife Kamla and his son M>tdhu-sudhan on the evening of April 5, 1961 at Hamirpur Roora and was sentenced to dflath. 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 imprison-ment. Appellant Ramanuj Das was further con-. victed under s. 176, Indian Penal Code and sen-tenced to 3 months' rigorous imprisonment.

The conviction is based on circumstantial evidence. This Court in Anant Ghintaman Lagu v. The State of Bombay(') bas laid down the princi-(ll (1960)2 s.c.a. «o .

. SUPREME COURT REPORTS

3 s.c;R.

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 presumJi>tion of innocence, if properly estab-lished can be taken into acco1.1.nt to find out if the circumstances lead to no other inferenc'l 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 eRtablishecl are inconsis-tent with the innocence of the appellants and incapable of explanation on any hypotheRis other than that of guilt. See also Govind Reddy V• State of Mysore(2). It may also be observed here that ordinarily this court does not reassess the evidence and re-examine the findings reached by the courts below pa,rticularlv where there are concurrent findings of fact, 'but it was urged before us that this iR one of those cases where the rule laid down bv the Privy Council in Stephen Seneviratne v. ThP. king(') applifls i. e. on the evidence taken Rs whole no t,rib1ma! could as . matt.er of legitimate infncnce arrive at the conclnsion that the appdlants are guilty. The inference of guilt of the appellants hris been drawn from number of circumstances which, according to the aopellants, do not, leftd to the irresistible conclution that thev are gui-lty anrl whioh, aocorrliog to the submi~sion of the res-pondent, lead to only one oonclusion and one alone that the appellants have been rightlv con_victed and sentenced. In order to satisfy ourselves at to the guilt of the appellflnts we have found it expPdient in this case to go into the evidence and see whether the conviction is rightly based.

(l1 (IR'il) 2 S <.R. 31)).

(2) A.LR, l960S.C. 29.

(Sl A.! R. 1931 p,r:, W9, 2~9.

19()2 Raghav Prapanna TrifJalhi v. 8tal1 DJ '(J. P. --Kapur J,

1962 ... RsJ!hav Prap"ana Tr;p111h; •• Stale of U. P. Kapur J.

In village Hamirpur Roora which is in Itawah district there is reli!!ious 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 pre-sent 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 child-· ren amoD"gst 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 · mPntion Govind Kumari who is M.A.LL.B. of the Lucknow University but she ia neither witness nor an accused in the case. The other two accused are Mohan Singh and Udham Singh who are retainers of the Mahant. Ra.ghav in the year 1950 was married to Kamla who was the daughter of Ram 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 flat in Shankarpuri. The case for the prosecution is that after the mar-riage the relations between Kamla, the first wife, and Raghav were Atraiued and she wits ill-treated by h0r husband and Kamla harl to leave her father-in-law's house and to go and Jive with her father in his village. Bflfore this Kamla aud Raghav had son Madhusudhan who was 'oorn in 1957. While Kamh was staying with her father, P.W. Lakhan Prasad intervened and suggested to Rama.-nuj Das appellant to give to Kamla Rs. 1(1,000 in cash and 90 bighas of land and this waa agreed to by Ramanuj Das and on this assurance Ramanuj · Das went to Kamla's father's hous~ and brought back Kam la after the Bi<lai ceremony was pflrform-erl. It has been stated in the evi<ltnce 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.

3 S.C.R. SUPREME COURT REPORTS

Somet.imes in February 1961 i.e. about month and half before the <late of the alleged occurrenoe Ram Sarup WPnt to the house of Ramanuj Das along with Lakhan Prashad P.W. He asked .Hamanuj 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 Sarup and Lakhan Prasad met KamJa in the house of Ramanuj Das and appri-sed 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 Kamanuj Das as he had been instructed· by Ram Sarup and there he found both Ramanuj Das and Raghav. Lakhan Prasad then asked Rama-nuj Das that thi> promise in regard to Rs.10,000 and 110 bighas of land should be c11.rried into effect. Thereupon it is statPd 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 R11m 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 exf>-cuted on Monday, April 10,1961. This arrangement was accepted by Hamanuj Das. Lakhan Prasad then went and informed Karola about it..According to the prosr.cution both Kamla and Ma<lhusudan were murdered with gun-shots some-time in the evP.ning of April 5, 1961, the day the above talk took place. These gunshots were heard by three wit.nesses. The same evening Raghav left Hamirpur Roora by jeep accompanied by appellants Mohan Singh and Udham Singh 'l'hey were seen passing through the village Samain at about 9 O'cloek by P.W. Sri Ra.m. TbPy then proceeded to Bidhuoa where petl'ul was purchased from the shop of ontl Ram Bb.ajan P. W. This was at about

1961 Raglav P,npanna Tr pothi v. Slate of U. P. EapurJ.

1.962 Raghav Propanqa 'Iripathi v. Stai. of U: P. ICapur J.

11 P.M. Ram Bhajan saw two other persons in the

jeep whjch was being driven by Ragbav. 'Jhey then crossed the Ganga at Kanpur at the Rawatpur Barrier at 8.30 a.m. and from there proceeded to Lucknow. post card was sent from Lucknow on April 6, 1961 by Govind Kumari in ri-gard to the arrival of Raghav and others.

It is not disputed thitt Karola and !lfadhusudan werl" not seen alive after the evening of April 5,1961. As 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 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 hiR wedded wife and son by firing of them with the gun of Mabant Ramanuj Das. He has gone some where with the two dead bodies in car. There is 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 hini to giv!3 me somethin.!!' in writing, so that I should go tn the Polico Station and make report. The Mahant then asked me to wait and to go only after Thakur D;1,lganjan t:;ingh had come. I did not listen to him, although he kept on forbidding. I have come to make 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 ahout 2 p.m. and inspected the house where the deceased was residing. According to his statement he did not find any one iu the house; he took some \... witnesses along with him and made search of " the house and there he found some patches

3 S.O.R. 8tJPHEME COORT REPORTS

which !ooked like blood on the terra-ce and in the rooms of the first floor. He prepared site plan and made memorandum of what he saw there. This site plan and the memorandum that he prepar-ed have been proved. He took into possession blood stained plaster pieces from 11 places from inside-the room, put them into separate packets and made the packets into 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 ocourrenoe and found seven other places where there were marks which looked like blood marks and he took the earth into pos-session. These included places like Parnal,as (water spots). These were also made into sealed par· eel but unfortunately all these t1.rticles 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-Inspector five [1]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 arti-, cles were sent to the Serologist the origin of the blood could not lre 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 them-selves on different dates in the Magistrate's court in the district of Etawah Rama.nuj Das on April 24 and Jai Devi on April 27. The Sub-Inspector started 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 Rag-hav surrendered in the court of the Magistrate at

1962. Raghau P1opanna T1ipatJ.i \'. State of U. P. KapurJ.

W62 Bsglav Prapaffr,a Tripaihi v. Stat,.JU. P. Kapur J.

Nawabganj in the district of Barabanki. In the application he stated aR follows:-

"2. That brimati 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 connec-tion 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. An 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 aftu 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 Babula! 1'.W. in Lucknow shirt and pyjama belongin~ to appellant Raghav. The police thought tha there were blood marks both on the shirt as welt 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 dis-covered 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 case where there is no direct proof of corpus delicti. The question is whether in cas:i

3 S.C.R. SUPREME COURT REPORTS

like this and on the evidence which we are going to discuss, it can be st1id that case of murder has been proved and it has also been proved as to who committed the murder and further whe-ther case under s. 2Ql has been made out.

There are certain facts in this case which are not in controversy. The apf>ellant Ra!(hav after having been married to Kamla for about four years married second time. His second wife is Vimla who is graduate of the Lucknow University. It is not disputed. th it some time in 1959 Kamla with her son Madhusudan who was born in 1957 went to , live with her parents, her father being 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 pro-secution case is that t.bis 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 ha.~ found this fact proved. There is again no dispute about their (Ka.mla and her son Madhusudan) 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 'l'illage from Lucknow where he was a·University st-udent and where he had flat of his own for his residence and th'lt o.f his secon·d 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

1962 Raghao P1apanna Tripo#i v. Stale of U. P. Ka;urJ, ·'

Ragh110 Pr1Jpanna 1'ripa1h; v. St.ti of U. P. Kapur J.

262 SCJP.REM:E COU.Rr REPORrs [1963]

to give something in writing so that he could in· form the Police regarding thtJ 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 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 Hamanuj Das as alleged by the prosecution. A>. we have said above both Kamla and her son were see11 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 bet ween Kamla and he husbanrd Raghav were strained and it was for that reason that she had ~one away to . her parents house. !tam 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 reprat those statements of the witness-es which have been ri:iferred to in the judgment of the High Court. We are sati9fied 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 sum of Rs. 10,000 in cash

3 S.C.R. SUPRlU.ME COURT REPORTS

and 90 bighas of Land for cultivation on the under-standing that she would reside at Hamiipur Roora. On this condition Ramanuj Das came and took Kamla with him after tho bidai ceremony. · On that occasion, according to Ram Swarup, Ramanuj Das told him that he would settle the money and the Li.nd . as pnmised. Sometime in February 1961 Ram Swarup accompanied by Lakhan 1 rasad 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 mur-der, Lakhan Prasad went to the house of Ramanuj Das and there he had talk with Ramanuj Das, Ragbav was also sitting near l{amanuj Das. When Lakhan Prasad start6'd talking about this matter · Raghav got up and went away but Ramanuj Das promised that h'e 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 deftJnce has deni:ed this part of the prosecution case and before us the evidence of La.khan Prasad was 8evor~ly criticised and reliance was placed on the criticism of this witness by the learned Sessions Judge. It appears that the learned Sefisions Judge has been unduly StJvere on Lakhan Prasad merely because of post caret which wll.s produ0ed by H.amanuj Das and proved by defence witnesses that tho marriage between Karola and Ragloav was not brought about by Lakhan Pras1.d but by DaJadar Singh. Lakhan Prasad had deposed that he had brought about the marriage. It was also said that Lakhan Prasad was unable to recognise the photo-graph of Govind Kumari and other children and thus could not be very familiar with the family. But the evidence of Lakhan Prasad gets strong cor-roboration from the evid[0]nce of Ram Swarup. The

R•ghav Pr.pann• Tripolhi v. Stale of U. P. KapurJ.

1962 R, gha-;; Prapanna Trr'pathi •• State t1f U. P. Kapur J.

High Court was satisfied that on that day Ramanuj Das had agreed that he wo<Ild exeo<Ite such dncu· ment and we see no reason to differ from the finding of the High Court,

The fact that Rama.nuj Das was present for the settlement of money and land in favour of Kamla is amply proved on this record and it is equ-ally clear that when this matter wae broached in the presence of Raghav he suddenly left the place from which an inference might well be and has rightly been drawn t.hat he was not very happy about this settlement.

On the same evening threA 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 wit· nesses .. We have gone through the evidence of these witnesses and altho<Igh there may be certain points on which the testimony of these witnesses may leg· itimately be subjected to criticism, those points are not sufficient to detract from their evidence that they did hear three shots being fired. The defence had put forward the theory that it was the firing of toy gun by the younge,r 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. 'l'b.e case for Ragbav 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 Raghav got up and went away. This, accor-ding to Lakhan Prasad, was on the 5th. Then

3 S.C.R. SUPREME COURT REPORTS

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 a.nd of P. W. Lallu Singh who saw the jeep of Raghav going towards the north at about 9 or 10 O'Clock on 1he evening of April 5, 1961 and fina-lly 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 tl.at the only person who had jeep or car was l{aghav. 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 :kaghav in village Samain which is at distance of mile and in that jeep there were the appellant Raghav &nd the two appellants Mohan Singh and Udham Singh bnd that the back curtain of the jeep was drawn. This evidence was criticised on the ground that this witness had made mistake as to the date which wa.s 4th and also that he did not meet the a.ppellant'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 mistake about the date. He was deposing after long time but corrobora-tion 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 H.oora on the 5th by two witnesses. Raghav was seen at the house on the 5tb by Lakhan Prasad and his further movement8 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 considoring the distance between Bidhuna and Samain that would proba.bly be the

Raghav Prapann<J Tripath1 v. Stalt of U. P.

EapurJ.

Ra~h"v Prapanna Trlpat•·i V, St,te of U. P: KopUrJ.

SUPREME COtJRT REPORTS (1963]

time when Raghav would be in Bidhuna. The evidence of this witness was also criticiaed that he made 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 had not been taken from Ham Bhajjan which, if they had been taken, would have shown that the petrol was taken not at 10-30 p. m. or l1 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 Ragba.v had 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 testimon v of this witness has been rightly accepted by the courts below. On the mor· niiig of 6th the jeep was seen at the barrier at the river Ganga at Kanpur at 8-30 a. m. and then li.aghav went to Lucknow. From the evidence of demand of Lakhan Prasad for the i:lettlement 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 pre-sent 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 site plan and memo showing as to what he saw. This, he has sworn to be correct and thtire is no reason to doubt his testimony. According to his statement he found

3 S.C.R. SUPREME COURT REPORTS •

what appeared to be blood at different places in the rooms and he 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.

1968 Ragh.v P,apanna T. ipat1.i v. State of U, P. Kopu, J.

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 Sewak whom he called Bhahhi. He started from that place on April 5, 1961 at abo•1t 12 noon, took pet;rol from Bidhuna and reached Samain, which he wants us to read as Bhawain. where his mother's sister iR married and where he want to condole because the f11.t,her-in-l!!,w of his mother's sister had died and from there he started from Lurknow on April 6, 1961 after taking refreshments. All these facts were capable of easy proof if facts they Wflre. Neither the Dada nor the Bhabhi were examined The two persons who saw the appellant go in the j<>ep are P. W. Sri Ram and P. W. Ram Bhajan. The testimony of these witness1>s has been believed by the courts · below and with that we have agreed. Neither of them says that they saw woman in the jeep. If the appellant left with Mohan Singh and CTdham Singh then there shoulrl have been four individuals in the jeep besides the appellant at the petrol pump. That iR vot the statement of P. M. Ram :J3hajan nor is there any proof that as matter of fact the father-in· Jaw of the appellant's mother's sister (.llf assi) had died or th<tt the appellant had gone there for the purpose of condoling or that he went there at all. We are unable to accept t,his explanation given by tbe appeUant in view of the tf'stimony of the wit-nesses who have been discussed above. Thus after the three gunshots Wflre fired and heard by th<:i three witnesses, the appellant's jeep was seen leavi~g the village. It was seen in Samain with

Raghao PropanntJ Tripathi Y. Stul• oj U P. -KapuT J.

26B SUPR~ME COURT REPORTS [191)3]

the two appellants Mohan Singh and Udham Singh and it was then seen at Bidhuna "with two persons sitting at the back". This was on April 5. The AXnlanation given by the appellant, therefore, is false. ·

Wheni the""appellant rmi.ohed Lucknow his si•ter wrote letter saying that the appellant etc. ha,d arrived and that Bhabhi had also come a.nd "as Bha bhi has come over here so I have not to worr:v about cooking nf food". The defenoe euLmit that wnat was meant bv Bhahhi waR Vim la or it mav be Dada'e wife an<'! therefore it C>tnnot. he said that there was any oblique motive in the writing of t.hiR post card so as to create evidence in re!l'11ril to Karola hPing alive on April 6. l!l51. The prosecution has rightly ar®Pd tha.t, in thiR poRt CA.rd tbore is no mention of 'K~mJa. ThA fathPr, UUC]e and mother and three yoongflr children are mention-ed but not Kamla or MadhuRUdan. To this the reply of counsel for the appellant was that there was not much love lost between Kemla and Govind Kumari and for that reason her name was not mentioned. But there was nothing against, the little bov who could have been ment.ioni-d as the other children. Even if Govind Kumari's dista~te be true that is an additional reason for Raying t.bat Kamla was not very welcom" member oft.he family of her in-laws.

The appellant then was found to be abscond-

ing. According to Snb·Inspector Tom>ir efforts were made to search for him in different places where he would ordinarily be in the town of Lnnknow or elsewhere bnt he was not found. Ultimately he went to Nawabganj in the district of Barabanki where on April 20, 1961 he surrendered himself before MagistratP. In the application that he made for surrendering himself he stated, as has been said above, that Kamla d/o Ram Swarnµ who was living in his house was missing and it was being

3 S.C.R. SUPREME COURT REPORTS

said by his enemies that she had murdered and that his name had been mentioned in that conneotiOn due to enmity and that warrant had issued against him although he was wholly unaware of her dis-appearance. This is rather a.n extraordinary conduct on the part of 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 moth0r but what a.bout the child? The allegation of the prosecu-tion that he was absconding and that when they searched for him they could not find him is satis-factorily established on this record. We are aware that the burden of proving everything against the appellant is on the prosecution and tber" is no burden on him to disprove any<,bing but in case of circumstantial evidence where there are circmn-stance of the kind which are proved in this case the cumulative effect has to be seen by placin~ together proved fact,s and conclusion drawn therefrom and in the absence of any exphnation all that one has to consider is the proseeution evidence.

There is another h1portant circumstance. shirt of the appellant was recovered from laundry on April Hi. It was found to be blood-stained although the origin of the blood has not been proved hy 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. Counflel for the appellant argued that this was most innocuous circumstance because there is no proof that there was blood nn the shirt on April 9 when it wafl given to the laundry and that merely three sp~cks of blood bein~ found on the 16t,b i.e. seven days later is not circumstance which can be taken agaiDAt the appellant. With this we do not agree. The appellant must consider himself lucky that the shirt was washed or it would

Rag~av Pr,panna Tripathi v. State ~f U. P.

KapurJ.

1962 Roghav Ptapanna Tripnthi •• State of U. P. Kaput J,

have cleared him or inculpated him still more. The fact that the blood was not visible to Babula! when the shirt was taken is not circumstance whioh goes -against the prosem1tion case because books on medical jurisprudence show that blood•t.ains are sometimes faint and invisible by ordinary li1Zht. The shirt was given to be laundered and Babula] will look for tears and damage and not for stain3 or dirt for which the shirt was given to be cleaned. The colour of the shirt was khaki and it is likelv that the small stains would go unnoticed. After all the shirt was given for 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· he was asked in regard to this blood•tained shirt, his answer was "I do not know''. In the circumstances the courts were justified in taking this to be circumstance in the chain of circumstane.es which have to be placed together in order to determine whether the case has been m11de out against the appell11.nt or not.Another very striking circumstance again;it the appellant is that the jel·p in which Ragbav trav•' llu<l fnm the village to Lucknow has vanish"d from the face of this earth. In spite of the best pfforts of the police it has not been found. Evidently the police wanted to interrogate th!l appellant in regard the whereabouts of the jeep but it appeltrs th:tt by en order dated April 28, 1961 the M •gist rate ordered that the Investigating Officer should issue written order requiring Raghav to produce the jeep "as well a~ to interrogate the accused'', that the accused i~ at liberty to say whatever be likes and he could not be compelled either to producP the thing or to tPll its whereabouts as this is his privilege under the law. It iA then that the police made an order call-ing upon the appellant (Raghav) to produce the

3 S.C.R.

SU~REME COURT REPORTS

jeep a.nd of course it was never produced nor found. His reply cannot be rearl under s. 162 Criminal Procedure Code and we lea.ve 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 drivin~ the jeep to the court house and .saying here it is. This, in our opiQion, is circumstance which can be taken into consideration in order to determiQe tbe guilt or otherwise of the appellant. In the opinion of the High Court the jeep hns 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 producerl there can be no risk of detection and the inferencfl from itR disappearance can be countered by arguments as it has actually been. The non-production of the jeep is strong circumstance against appellant R<tghav which the courts below Wf'tre entitled to take into consideration. Articles like jeeps do not just disappear in this air and whfln they do disappear and cannot be traced as they h~ve not been traced in this caF1e and when the allegation i'I that t.bey have been used for carrying away the dead bodifls their non-production or thPir not being found is circumstance which court can take into com~ideration in determining the guilt of an accused person. .

It may also he addfld that the other appellants were alflo absconding. Why the whole household went away is not just coincidence. If the girl and the child bad disappeared in innocent circumsta.nceE< there was hardl v reason for all of them tn panic. None of them proved why, t.hey Wf\re so difficult to get at or what was the urgent business which had

19611 Bagha~ Prapanni T,;pa1hi . •• Slal1 of U. P.

1961 Ragh'a'IJ Prapanna Tf'1patlli <. . v. State ·of u. P • K1JpurJ,

·called them away. Mohan Sin11h was arre!ted on April 9, Ramanuj Das surrendered on April 24, and in his application he stated that he had been informed by A. P. Dubey that he was wanted. Jai Devi surrendered on April 27, 1961 and claimed to be purdanashin lady and her appearance in court was excused and she was re leased on bail. Thus. all the accused persons were found to be absconding a.nd 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 hie wife Kamla; (2) there was an agreement by Ramanuj Das c.f making settlement of land and money in favour ofKamla and on the insistence of Ram Swarup father of Kamla, Ramanuj Das had agreed that the document :wonld he executed on Monday i. April 10, 1961 ; (3) it is also proved that when the matter was discussed in the presence of appel-lant Raghav whose arrival was .awaited for fina.lis· ing the arrangement he got up and went away; and it is also established that Kamla had been brought from the house of hn parents nn tha exprees condi · tion that such settlement would be made; (4) on April 5, 1961 appellant Raghavwas in village Hamir-pur Hoora and on that evening three gunshots were fired and some time later Raghav left in his jeep with two other appellants Moh-in Singh and Odham Singh and after Raghav lef.t 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 hurry and were found on the 6th morning at Kanpur and tha 2ame day they · reached Lucknow as the post card written by

3 S.C.R. SUPREME COURT REPORTS 273

Govind Kumari shows. In that post card it is stat-ed that the avpellant and others had arrived at · L~cknow. The expla.na.tion of the appellant was that he left on the 4th and took his Dada and hill! :Bhabhi along with him but this explanation has not been accepted and is false explanation; (7) there-after the appellant made himself scarce and the police could not trace him till he surrendered him-self in the court of magistrate atNawabgunj "'here he made an application stating that one Karola 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 Karola; (9) when the chowkidar of the village told Ramanuj Das a.bout 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 1'ingh we are told is an Up-Pradhan of the Panchayat) the report was made by the chow kidar on the 7th and the police came the same day and inspected the house of Ramanuj Das ; ( 10) In the rooms upwtairs 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 placti!I and the Chemical ExaminPr found t'ie 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 disintegra-tion; \ l l) 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; (12J on April 16, bloodstained shirt of Raghav was found from l>tundry; (l:3) no explanation is given of this blood 0[n ][Lhe ][shirt ][and ( ][l4) ][on April 5, ][1961 ][both ][Kain la ]nrl her son disapp<iart'd from the fact of this earth nd no bocly has heard of them and no attempt has en made to find out as to what happened to them

RaghatJ Prapanna Tripath1 v. Stale oJ U. l". KapurJ,

1961 Ragh!JV Prapanna Tr;p.ihi •. St~te of U. P. Kapur -,.-J~

and instead false explanation was given that Kamla

had left with her child and suggestion was made in the cross-examaination that she had eloped with one Chander ShPkhar and thus had vanished from the house. It may he stated that there is no reason why she should have disappeared when according to evidence sh!' was going to get land and money and when she had her father who could look after her and was in affluent circumstances; (I 5) Coupled with this is the fact of disappearance of jeep in which the appellant travelled from his villag J to Lucknow; (16) and 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 house of Ramanuj Das. We find no reason to disagree with the conclusions drawn from the evidence that Kamla and her son Madhu· sudhan are Clead 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 person uharged with murder, the fact of death is pro.vable 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 oan be convicted, the fact of death should · be proved by such <iir· cumstanoes as render the commission of the crime morally certain and leave no ground for reasonable doubt; the circumstantial evide'nce should be so cogent and compelling as to convince jury that upon no raticnal hypothesis other than murder can the facts be accounted for." (I) [1952] N.Z.L.R. Ill.

3 S.C.R. SUPREME COURT REPORTS

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 Ohintarnan Lagu v. The State of Bombay(2). It was also said in King v. Horry('):

"That the jury, viewing the evidence as whole, was entitled to regard the concur· ranee of so many separate facts and circums· tances themselves establisned beyond all doubt, and all pointing to the fact of death on or about July Ia, 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 establish-ing 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(') and Regina v. Onufrejczyk ([1]) are oases of conviction (I) [\9,5] i Q.B. 38~. 3 l4. I'.!) 1960 12 S.C.R. 460. (3) [195i] N.Z. L.R. Ill.

196! Raghav Prap 1nn<1 T1ipathi v. State of U. P, KapurJ.

RagAao Pr11;anna Tripa1lii v. State of U. P. Kapu,.J.

no doubt by juries on evidence which was wlrolly 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" death on or about particular date and excluded any reasonable hypothesis other than the death of .the per&on alleged to have been murdered and this was held to be of sufficient probative force to establish death. In the present case the circums-tances which have been proved and to repeat the circumstanctis 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 abso-lute callousness or the pa.rt of Kaghav, subsequent false explanation being given and his absconding are all circumstances from which the courts below were justified in concluding the Karola and her son were murdered and that Jtaghav had pre-dominent motive to commit the murder. The High Court found that·Ra.ghav had strong motive to commit the murder and after taking all the circumstances into consideration ca.me to the con-clusion that the Sessions Judge had rightly con-victed 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 Ragha.v was guilty of the offence with which he was charged. The inculpa.tory facts which have been proved were, in the opinion of the High Court, inconsistent with the innocence of the appellant and a.re not capable of explanation or any other. hypothesis except his

3 S.C.R. SUPREME COURT REPORTS 277

guilt and a3 was said by th;is Court in Govinda v. State of Mysore( I ) .

"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 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 chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent "with the innocence of the accused and it must be such · as to ehow that within all human 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 reason-able."

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 Rev. Hodge(2) where it was said:-

"The mind was apt to take pleasure in adapting circumstances to one another, and even in straining them little, if need be, to force them to form parts of one connected whole ; and the more ingenious the mind of the individual the more likely was it, considering such matter, to overreach and (I) A.I;R.1960S.C. 29. (2) [1838] 2 Law 227.

f:aghav Prapanna Tripathi v. Stal• of U. P.

EapurJ.

Bagltao Prapanna Tripaehi •• Btale oJU. P. Kapur J.

mislead itself, to supply some little !ink that is wanting, to 'take for granted so~e 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 oironmstances, to be ~uch which can only he explain-ed on the hypothesis of the guilt of appellant Raghav ·have rightly found the appellant ~o. be guilty. He had the immediate motive to rid him-self 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 no reaso11 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 connec',ed it would have come forth if not in the investigatien at least during the trial.

We therefore dismiss the appeal of Raghav

and see no reason to disagree with the opinion of the oourts below that no sentence other than death was called for in ·this case. The murder . was venal one and had been committed to get rid of an inconvenient wife and her child~

Then the question arises whether case is

made out s. 20 l 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 tha.t no one saw the dead bodies being carried. That may be so but the t-conclusion drawn is from circumstantial evidence i.e. series of events which lead to the conclusion of

3 S.C.R.

guilt. We have alre11.dy said that murder was committel in tile hou ;e of R"l.manuj DJ.s on the evening of April 5, 1961. There was disappearance of Kam la and Madhusudan and sudden departure of Ragha.v and these two appellan~s. They were in 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 drew the inference of an offence under s. 20 l Indian Penal Code which in our opinion was correct. Thus these two appellants have been rightly convicted and their appeals are dismiBBed.In regard to the case of Ramanuj Das and Jai Devi the finding of the High Court is that the dead bodies of Karola and her son Maclhusudan were not found in the house of Ra.manuj 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 with-out 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 Uourt to be justified. It is true that the murder was committed in the house of Ramanuj Das and that there is the evidence to show that the blood inside and outside the Jiving rooms was washed and an attempt was made to obliterate any sign of it though it was unsuccessful. It also may bd 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 person knows or believes to be false. In this case there is ll) evidence of either. It is not shown that

Raghau Pr•1panna Tripathi v. Stat1 of U. P. KapurJ.

196Z these two appellants caused any evidence to dis-Raghau Prapanna i1ipathi appear. There m'.ly be a. very strong suspicion v. that if from the house dead .bodies are removed or 8tat1 of U. p, blood was washed, person placed in the position of the appellants must have had .a hand in it but still that reniains suspicion even str.ong suspicion at that. It is true that they were ab3conding but merely absconding will not fill the gap or supply the evidence which is necessary to prove the ingredients of section ~01 of the Indian Penal ide. In our opinion the case against J:tamanuj Das and Jai Devi has not been made out. There appeals must thern· fore be allowed and they be set at liberty.

We have found that the murder was commit-ted in the house of Ramanuj Das and that dis-appearance of the dead idies took place from that house. Ramanuj Das did have the knowledge of the commission of the murder and· he to ik no steps t•) inform the police about it. In these circum-stances he has been rightly convicted undPr s. 176 of the Indian Pen!tl Code and his appeal in regard to oonviotion under .that section is dismissed.

BY COURT. The appeal of Raghav Pmp•mna Tdpathi, 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 Raman:ij Das for offence under s. 176 of the Indian Penal Code is allowed by majority.