Krishnan Nair vs State of Kerala

Gajendragadkar J.

The murder of Saraswathi Amma alias Baby in the house of her husband Krishna Pillai Krishnan Nair, accused No. 2, at Pattom House in the City of Trivandrum, between 2 and 4 P.M. on August 5, 1957, has given rise to the criminal proceedings from which Criminal Appeals Nos. 9 and 52 of 1959 arise. Accused No. 1 Sivarajan alias Ampi is the servant of accused No. 2, and accused No. 3 Sekharan is the brother of a kitchen-maid who had been employed by accused No. 2. The prosecution case against all the three accused persons was that they were concerned in the murder of Saraswathi Amma. Accused No. 1 was charged under Sections 302,201, 381 and 461 of the Indian Penal Code; accused No. 2 u/s 302 read with Section 109 as well as Section 201 read with Section 109; and accused No. 3 was charged u/s 302 read with Section 34 and u/s 201. The case against them (Sessions Case No. 1 of 1958) was tried before the learned Sessions Judge at Trivandrum. The learned Judge convicted accused No. 1 both under Sections 302 and 201 of the Indian Penal Code. The sentence of death was passed by him against accused No. 1 u/s 302 and no separate sentence was imposed u/s 201. Accused Nos. 2 and 3 were acquitted of all the offences charged and were ordered to be set at liberty. Accused No. 1 appealed to the High Court at Kerala (No. 88 of 1958) against his conviction and sentence while the learned Sessions Judge had submitted for confirmation the sentence of death imposed by him on accused No. 1. The State Government had also appealed against the order of acquittal passed in favour of accused No. 2 (160 of 1958) and accused No. 3 (161 of 1958). Sankaran and Raman Nair, JJ., who heard these appeals agreed that the case against accused No. 1 had been proved beyond a reasonable doubt, and that the case against accused No. 3 had not been proved beyond a reasonable doubt. In the result, the appeal preferred by accused No. 1 as well as the appeal preferred by the State against accused No. 3 were dismissed. In regard to the appeal preferred by the State against accused No. 2, the learned Judges differed. Raman Nair J, took the view that the case against accused No. 2 had not been proved beyond a reasonable doubt, and so there was no justification for interfering with the order of acquittal passed in his favour by the learned Sessions Judge. Sankaran J., on the other hand, held that the case against accused No. 2 had been proved beyond a reasonable doubt, and so he was inclined to allow the appeal of the State against the order of acquittal passed in favour of accused No. 2. As the result of this difference of opinion the State's appeal against accused No. 2 was laid before Koshi C.J. u/s 429 of the Code of Criminal Procedure. The learned Chief Justice agreed with the view of Sankaran J., with the result that the State's appeal against accused No. 2 was allowed and he was convicted u/s 302 read with Section 109 and sentenced to death. It is against this order of conviction and sentence that accused No. 2 has preferred Criminal Appeal No. 9 of 1959. Accused No. 1 has also filed by special leave Criminal Appeal No. 52 of 1959 against the order of conviction and sentence passed by the High Court in his appeal before it.

It is common ground that there is no direct evidence against either of the accused persons and the case against them stands wholly on circumstantial evidence. It is hardly necessary to add that the principle governing the appreciation of circumstantial evidence in criminal trials is well-settled. Circumstantial evidence can form the basis of conviction only if it leads to an irresistible inference of guilt of the accused and is wholly inconsistent with his innocence. It is in the light of this principle that the points raised by both the Appellants would have to be considered by us. There is, however, one material difference between the two appeals, and that must be stated at the very outset. Accused No. 2 has come to this Court under Article 134(1) (a). The order of acquittal passed against him by the trial Judge has been reversed on appeal and he has been sentenced to death. In such a case the Appellant is entitled to challenge the correctness of the propriety of the findings of fact, and in that sense the scope of enquiry in his appeal is naturally wider. Accused No. 1, on the other hand, has appealed to us by special leave under Article 136 of the Constitution, and it is well-settled that in appeals under Article 136, this Court generally does not interfere with the concurrent findings of fact. The appeal preferred by accused No. 1 would, therefore, have to be limited to questions of law which may arise on the findings recorded against him by the courts below.

Since the evidence against both the accused is circumstantial, it is necessary to set out the material facts on which the prosecution relies in some detail. The deceased and the second accused were married about ten years ago and had three children; all of them were going to school, the youngest to a nursery school just opposite the Pattom House, and the elder two to a different school at some distance. The mother of the deceased, P.W. 2, was living in Pazhavangadi about 11/2 miles away. The second accused was a P.W. contractor and he also ran a lodging house called "The Modern Tourist Lodge". It was his practice to leave home for work at about 9 in the morning and return home at about 9 in the night. Accused No. 1 had been engaged by accused No. 2 as a domestic servant about nine months before the date of the offence. He used to live in the house. A maid-servant, P.W. 30, had also been engaged, but she was away on leave from August 2, 1957.

The deceased was last seen alive between 1-45 P.M. and 2 P.M. on the date of the offence which was a Monday. She was seen in or about her house. At about 10 P.M. on Wednesday, August 7, 1957, her body was found lying buried though partly exposed behind the cow-shed in the south-western corner of the compound of the house of accused No. 2. The prosecution case was that the deceased had been murdered by accused No. 1 with the help of accused No. 3 at the instigation of accused No. 2 and that her dead body had been buried by accused Nos. 1 and 3. That is how all the three accused persons were charged with the offences already indicated.

About 1 P.M. on August 5, 1957, the sweeper of the nursery school, P.W. 8 saw the deceased at the gate of her house with her youngest child. Three quarters of an hour later, a neighboring shopkeeper, P.W. 19, also saw her but this time the child was not with her. Probably about the same time, P.W. 10 saw her in the portico of her house. It appears that about 2-20 P.M., P.W. 18, the brother of accused No. 1 went to Pattom House to take accused No. 1 to his uncle P.W. 3 for receiving the monthly payment which the uncle used to make. This witness saw that the gate of the house had been shut and fastened from within and that the child Rajan was waiting outside the gate. The witness then knocked at the gate but accused No. 1 did not come out for 5 to 8 minutes. Accused No. 1 told the witness that he could not leave the house because he had work on hand, and since the deceased had gone out to collect her milk dues he had to attend to the children when they return from school. About 4 P.M., P.W. 16, a teacher who used to visit the house to give tuition to the children arrived. He did not find the deceased in the house but met accused No. 1. He gave tuition to the children and departed. Meanwhile the milkman, P.W. 5, came to milk the cow and he was told by accused No. 1 that the deceased had gone out to collect her milk dues. It appears that the children began to feel restive and so P.W. 7, a woman who lives in the house nearby, took charge of them and asked accused No. 1 to make enquiries about the deceased and to inform P.W. 2 that the deceased had left the house and had not returned. This witness met accused No. 1 again at 7 P.M. and she pressed him to go and inform accused No. 2.

It appears at about 7-30 P.M. accused No. 1 left the house, and he went to the house of P.W. 2 at about 8 P.M. and reported to her that the deceased had disappeared and repeated his story that she had gone to collect her milk dues. P.W. 2 immediately charged accused No. 1 and accused No. 2 with having played foul with her daughter and murdered her. She then secured the assistance of her tenant, P.W. 13, and got in touch with P.W. 4 and P.W. 12. With these witnesses she proceeded to Pattom House soon after 9 P.M. When she reached the Pattom House, P.W. 7 brought the children and handed them over to her. Meanwhile as a result of the cries of P.W. 2, a crowd had collected near the house. Soon thereafter accused No. 2 arrived in his car and was informed about the disappearance of his wife. P.W. 2 ran up to the accused and shouted that he had murdered her daughter. Someone handed over a key to accused No. 2 with which the latter opened the portico room. They found the bedroom and the storeroom locked. P.W. 4 and Ors. then asked accused No. 2 to open the said room but accused No. 2 said that the deceased had taken the keys with her and so the doors could not be opened. He also enquired indignantly as to what business they had to ask him to open the door, P. Ws. 4, 12 and 13 then inspected the storeroom with the help of torchlights. Whether the inspection was made through the ventilators or through the windows is a point on which witnesses have differed. At this time accused No. 2 left the place in his car.

About this time accused No. 1 had arrived; and P.W. 2 and her companions questioned him when he repeated the same story about the disappearance of the deceased. The party then decided to make a report to the police; and so P.W. 2 and the children as well as accused No. 1 got into the car. Just about the time when the car was starting from the gate, accused No. 2 came and asked accused No. 1 to get down from the car and accompany him into the house.

P.W. 2 and her party then proceeded to the Cantonment Police Station at about 10--15 P.M. and the report about the disappearance of the deceased was made. Unfortunately no entry of any kind appears to have been made in the general diary about this report. Thereafter P.W. 2 and her party reached her house. They saw that accused No. 2 had come there in his car accompained by his friend Thampi. Accused No. 2 however did not go near the party nor did he contac P.W. 2 but went away.

P.W. 6, a relative of the deceased, heard about her disappearance and went to the house of accused No. 2. He saw accused No. 1 seated in the courtyard of the house and accused No. 2 in the verandah. P.W. 6 then began to question accused No. 1 but accused No. 2 prevented accused No. 1 from making any answer. About midnight time P. Ws. 4 and 12 again went to the house of accused No. 2. By this time the bedroom was opened by opening the bolt through the ventilator. Nothing was found in the bedroom. The key of the lock of the storeroom was found in the bedroom. With that key, the storeroom was opened. In the storeroom also nothing incriminating was found. These are all the material incidents that took place on Monday (5--8--57).

On the 6th morning, P.W. 2 tried to contact the higher police officials with a view to start the Police machinery to enquire into the matter. Accordingly instructions were issued to make a search for the deceased. P.W. 2 also began to make enquiries on her own. It appears that P.W. 78 reported that he had seen a person looking like the deceased going towards the railway station with a companion, and so enquiries were directed to be made by railway police in that behalf.

Meanwhile accused No, 2 was also making some enquiries. When he asked P.W. 42 whether he knew anything, on the morning of the 6th, P.W. 42 suggested that accused No. 2 should question accused No. 1. Accused No. 2 did not make any answer but went into the house. It appears at about 9 A.M., accused No. 2 and his friends the Thampis consulted an astrologer, P.W. 61 and that his friend, P.W. 23, was keeping in touch with P.W. 2 and her party and exchanging information. On the morning of the 7th accused No. 2 again consulted an astrologer, and in the afternoon he proceeded to Kulathoor, Attingal and other places along with the two Thampis and P.W. 73, the head constable of the Crime Branch. He returned home at about 11 P.M. and told his friends that he would continue his search in Kadakkavoor, a place which was indicated by the astrologer.

The same night at about 10 P.M., accused No. 1 told P.W. 44 that there was still no news about the deceased, and his master had gone to various places in search of his wife; so saying accused No. 1 asked the witness whether he did not smell any stench, and when the witness said that he had noticed none, accused No. 1 drew his attention to something behind the cow-shed. Going near the spot, a match was struck and they saw a white object protruding out of the earth. P.W. 44 then went down on the road and came back with P. Ws. 40 and 42 who were then passing by. When the object which was protruding out of the earth was examined more closely with the aid of the torchlight brought by P.W. 42, they found that it was a piece of flesh and they also saw that the ground near about the object had been upturned. Accused No. 1 told them that the object was nothing else than the flesh which was the left-over of the dog's meat, and that he had cleared up the place a few days earlier. It appears in evidence that' accused No. 2 had kept an alsation dog in his house.

It was after this discovery was made that accused No. 2 came back about midnight. P.W. 44 was waiting in the house and told him what he had seen. Accused No. 2, however, proceeded to take his bath and did not care to see what the object was. Other witnesses examined the object more carefully and found that the exposed piece of flesh was a human leg and buttock. Naturally they all concluded that it must be the dead body of the deceased; and so they went into the house and informed accused No. 2 who had then come out of his bathroom. Accused No. 2 then asked P.W. 41 to featch a taxi in which he left for the police station along with P.W. 41 and the two Thampis.

It was about 2-40 A.M. when accused No, 2 woke up the Sub-Inspector, P.W. 75, and gave him the information about the discovery of the dead body of his wife. The party then proceeded to the Cantonment Police Station at about 3 P.M. where P.W. 75 recorded the statement of accused No. 2 (Ext. P. 35). As a result of this statement, investigation began.

P.W. 74, the Circle Inspector, reached the Pattom House at about 4-30 A.M. where he met accused No. 1. On being questioned by P.W. 74, accused No. 1 gaye a full account of what had taken place. P.W. 74 took accused No. 1 to the Deputy Superintendent of Police where he was again questioned, and in consequence of the statement made by him, he was arrested at about 6-30 A.M. He was then taken back to the Pattom House at about 6-45 A.M. About this time P.W. 75 had come there accompanied by accused No. 2. Soon thereafter, as a result of the statement made by accused No. 1 he took out and produced certain articles from places pointed out by him. Three thorthus and a rag were taken from beneath the heap of straw on the western side of the car shed; then a piece of gunni, a Mundu and a tuft of false hair as well as a table knife were produced from a shallow pit beneath the plantain trees to the north of the kitchen. Thereafter two gold chains usually worn by the deceased and two pairs of new gold ear-rings wrapped up in the bill relating to their purchase were found in the newspaper packet which was produced from under a heap of ash in the corner of the northern verandah of the house. All these articles were shown in the Mahazar (Ext. P. 27).

At about' 9-30 A.M. the Executive First Class Magistrate, P.W. 60 arrived, and under her orders the dead body was taken out from the pit where it was buried. The body was naked except for the bodice and was highly decomposed and some portions were missing. 4 gold bangles, a pair of ear-rings and a nose-screw were found on the dead body, whereas 4 other gold bangles were found in the pit by the side of the body.

At this stage the inquest proceedings commenced. In these proceedings accused No. 1 confessed (P. 29(a)) that he had murdered the deceased by cutting her with a chopper on the neck and the forehead. He gave a full account about the murder and the concealment of the dead body in the pit. The same day at about 11-45 A.M. the accused made a confessional statement u/s 164 of the Code of Criminal Procedure (P. 15). It appears that whilst the accused was placed in sub-jail, he was taken out in connection with the investigation and was questioned again. On his offering to make a further statement, he was taken to the Magistrate before whom he made another confession (P. 17). In this confession he implicated accused No. 2. Meanwhile the investigation was proceeding apace, and on August 20, accused No. 2 was arrested. On September 7, the interim charge-sheet was. submitted against accused Nos. 1 and 2 under Sections 302 and 201 read with Section 34 of the Indian Penal Code. These then are the material facts on which the prosecution case is based.

Let us first deal with the case of accused No. 1. Before considering the points raised on his behalf by Mr. Umrigar, it is necessary to set out briefly the findings of fact recorded against accused No. 1 by both the courts below. It has been found that the deceased was seen in or near the house of her husband between 1 to 2 P.M. on the date of the offence; and the medical and other evidence show that she must have been murdered between 2 to 4 P.M. About this time she and accused No. 1 were the only two persons in the house and the gate of the house was latched from inside. The theory suggested by accused No. 1 that somebody else may have gone into the house and committed the offence has been rejected by the Courts below; and so has the theory that the murder may have been committed outside and the dead body and the other things may have been later planted in the compound been rejected as fantastic. According to the findings the murder was committed inside the house and the dead body was then concealed in a pit by the murderer in a hurry. The subsequent conduct of accused No. 1 has been considered by the Courts below and it has been found that it is suspicious from start to finish; he had closed the gate and locked it from inside which was not usual; he did not open the door immediately when P.W. 18 knocked at it but took some time. He started telling very soon after the murder that the deceased had left to collect her milk dues; and he persisted in the story right up to the end. When the protruding flesh was discovered, he gave a false explanation that it was part of the left-over meat given to the dog; and as a result of the statements made by him soon after the discovery of the dead body, several articles belonging to the deceased were recovered. It is on these facts that the Courts below have come to the conclusion that the inference of the guilt of accused No. 1 irresistibly follows. Mr. Umrigar contends that, in assessing the effect of the incriminating circumstances of accused No. 1, the Courts below have erred in law. We must, therefore, carefully examine this contention.

In support of his argument, Mr. Umrigar has asked us to bear in mind certain circumstances which are in favour of accused No. 1. He contends that the learned Sessions Judge had accepted the two confessions made by accused No. 1 as voluntary and true; but the High Court has rejected them. That no doubt is true; but it is not as if the findings of the Learned Sessions Judge against accused No. 1 was based solely or even substantially on his confessions. The learned Sessions Judge had considered the circumstantial evidence against accused No. 1 and held that it led to no other inference than the guilt of accused No. 1. Then as to the motive of the offence, the learned Sessions Judge had found that it was not as if accused No. 1 had no motive at all, though he held and rightly that the motive was hardly sufficient or strong enough to justify the commission of murder. Mr. Umrigar contends that the High Court has altogether rejected the prosecution case of motive against accused No. 1; and so he wants us to deal with the appeal of accused No. 1 on the basis that no motive had been proved against him. It appears that before the High Court, the prosecution pressed its case against accused No. 2, and so it urged that accused No. 1 had no motive to kill the deceased; it was accused No. 2 who had a strong motive to instigate the murder of his wife, and so the argument presented to the High Court took on a slightly different complexion. Even so, it is not at all clear that the High Court took the view that accused No. 1 had no motive at all. "The statement of the learned Sessions Judge," observes Raman Nair J., who delivered the principal judgment in appeal, "that while it was clear that the first accused was not well disposed towards the deceased, a strong or adequate motive for the first accused for the commission of the murder had not been proved to exist, seems to me an overstatement in so far as the first part of it is concerned, and an understatement in so far as the second". It is not easy to understand what precisely this observation means; but from the context it would be reasonable to infer that, though the learned Judge was not prepared to hold that accused No. 1 had a strong motive to murder the deceased, he was also not prepared to accede to the argument that there was no ill-will between accused No. 1 and the deceased at all. But even if the prosecution proves no motive against accused No. 1 what is the consequence? The consequence is not that failure to prove motive must necessarily destroy the prosecution case. It is quite true that in the case of circumstantial evidence the proof of motive is of considerable importance; but it would not be correct to say that the proof of motive is essential even in cases where the prosecution relies on circumstantial evidence alone. Absence of motive would naturally mean that the court must examine the circumstantial evidence with great care and circumspection. The court must be satisfied that the circumstantial evidence is wholly and indisputably inconsistent with the innocence of the accused. Therefore, Mr. Umrigar is not right in contending that in the absence of proof of motive the case against accused No. 1 must necessarily fail.

Incidentally we may at this stage refer to an argument urged before us by Mr. Nambiar when he argued the case of accused No. 2. He ingeniously attempted to suggest a possible motive against accused No. 1. He invited our attention to the evidence of the prosecution witnesses which show that the deceased was afraid of accused No. 1 and always avoided to stay alone with him in the house. He also pointed out that the dead body of the deceased was found to be naked; and his suggestion was that accused No. 1 may have been actuated by sex motive in communing this offence. He conceded that the evidence also showed that accused No. I was carrying on a love affair with the maid servant, Pw. 30, but that, argued Mr. Nambiar, would not necessarily exclude the possibility that accused No. 1 may have, out of vindictiveness, sought to attack the deceased when she was alone, and on meeting resistance, committed the present offence. We do not think there is any substance in this argument. This plea has never, been suggested in the Courts below, and on the material as it stands, it does not sound either reasonable or probable. Therefore this hypothetical motive against accused No. 1 suggested by Mr. Nambiar must be left out of account in dealing with the case against accused No. 1.

It is then urged by Mr. Umrigar that the absence of blood stains in the dining room is a circumstance in favour of accused No. 1. We do not see how this circumstance has any material bearing on either the innocence or the guilt of accused No. 1 at all. On the findings recorded by the Courts below the murder did not take place in the dining room, and so absence of blood in the said room is not a matter of any consequence. Mr. Umrigar also relies on the fact that accused No. 1 did not run away but stayed with accused No. 2, and this conduct, he says, is consistent with his innocence. We are not impressed by this argument also. It does appear that accused No. 2 did not want accused No. 1 to go away, and perhaps he was not keen to expose him to merciless questioning or to any other risk. Besides, if accused No. 1 had run away that would have been the easiest way of inviting suspicion against himself. Under these circumstances it was clearly an act of prudence on his part to stay with accused No. 2. Then it is pointed out that accused No. 1 himself drew the attention of P.W. 44 to the stench proceeding from the place where the dead body had been buried. We do not see any merit in this conduct. It was obvious by then that the stench would have attracted notice even without the statement of accused No. 1 and all that he did was to anticipate the inevitable. Besides, the false explanation given by him to P.W. 44 and Ors. clearly indicates that even when the discovery of the dead body was imminent, he did not hesistate to put it off by giving a false explanation. Then it is argued that the murder of the deceased and the concealment of the dead body in a pit which were all done in a hurry could not be the work of one man. There may perhaps be some truth in this contention; but it only suggests that accused No. 1 had an accomplice in the crime and nothing more. The main point which was raised on behalf of accused No. 1 in the High Court was that the victim had been murdered outside the house and her dead body and her ornaments and cloths had been buried inside the house sometime after the commission of the crime. This theory has been rejected by the High Court and in our opinion rightly. If the victim was murdered inside the house at or about the time alleged by the prosecution then the conduct of accused No. 1 as found by the Courts below irresistibly leads to the conclusion of his guilt. We have carefully examined the case of accused No. 1 and we see no escape from the conclusion that the facts found against him' are entirely inconsistent with his innocence.

The result is the appeal filed by accused No. 1 fails and the order of conviction and sentence passed against him is confirmed.

That takes us to the case against accused No. 2 (Criminal Appeal No. 9 of 1958). As we have already indicated, accused No. 2 is entitled to challenge the correctness of the propriety of the findings of fact recorded against him, and also to urge that even if certain suspicious circumstances are held to be proved against him, they do not necessarily lead to the inference of his guilt. Having considered the several circumstances on which reliance has been placed against him by the learned Chief Justice in the opinion delivered by him u/s 429 of the Code, we have come to the conclusion that it would not be safe to hold that the proved circumstances inevitably lead to the inference of the guilt of accused No. 2.

Let us examine these circumstances, consider whether they are proved, and assess their effect taken separately and collectively. It appears that the learned Chief Justice was very much impressed by the fact that accused No. 1 had no motive to commit the offence at all. He has observed that "though at the trial the prosecution led some evidence to establish a motive in accused No. 1 himself to commit the crime, neither the trial court nor the learned Judges of the Division Bench found that evidence worthy of credit." As we have already indicated in dealing with the case of accused No. 1, this observation of the learned Chief Justice is not wholly accurate. Nevertheless, it may be assumed that the prosecution has not proved a strong motive against accused No. 1. But, does that necessarily and inevitably lead to the inference that the learned Chief Justice thought it did that accused No. 2 alone must have instigated the commission of murder? In dealing with this question, it is undoubtedly important to remember that a servant would not have the courage to comit such an offence and it is very likely that his master may have instigated him to do so. But, on the other hand, an offence of this kind committed by the servant alone is not absolutely impossible or unknown; and so we are not prepared to accept the conclusion of the learned Chief Justice that on the broad features of the prosecution case as to motive an inference can be safely drawn that it was accused No. 2 who had mstigated accused No. 1 to commit the offence. In dealing with the circumstantial evidence, we must start with the assumption that accused No. 2 is innocent. The feeling that accused No. 2 may be guilty or was likely to be guilty must be completely eliminated in assessing the effect of incriminating circumstances adduced by the prosecution.

Then the learned Chief Justice has relied on the estrangement between accused No. 2 and his wife. It is unnecessary to refer to the details of the evidence on which the theory of estrangement is based. We agree with the finding of the learned Chief Justice that the relations between husband and wife were not cordial at the time and that there was a certain amount of estrangement between them. But it seems to us that the effect of this estrangement has been exaggerated by the learned Chief Justice. We find it difficult to accept his conclusion that having regard to the nature of the estrangement alleged by the prosecution, it would be reasonable to hold that accused No. 2 was inclined to murder his wife. What are the causes of estrangement?. The deceased wanted accused No. 2 either to return Rs. 1,500/- advanced to him by her mother (P.W. 2) for extending her building, or to do the work of the said extension without delay. Accused No. 2 had asked his wife not to send his lunch to his office for a couple of weeks before the date of the offence; and he used to give the amount for daily expense to his children and not to his wife. It is also alleged that accused No. 2 was then in financial difficulties. Now, the bearing of this last circumstances it is not easy to appreciate. Even if accused No. 2 was in financial difficulties how would that help the prosecution to prove that he wanted to murder his wife? Besides it does appear from the record that on August 1,1957 accused No. 2 had actually received a cheque for Rs. 10,000. That is not to say that accused No. 2 was not then facing some financial difficulties; but it only shows that accused No. 2 had some cash in hand though outstanding bills were pending against him at that time. In our opinion the evidence led by the prosecution in support of the theory of estrangement between accused No. 2 and his wife is wholly inadequate to justify the contention that accused No. 2 was so exasperated that he decided to murder his wife. In our opinion, it is really futile to rely on the theory that even inadequate motives lead to the commission of murders in many cases because in the present case we are dealing with husband and wife who have lived happily for over ten years and whose married life had been blessed with three children.

Besides, though the relations of accused No. 2 and accused No. 1 may have been cordial, it must be remembered that accused No. 1 had been employed just nine months before the date of the offence. Probabilities are not very much in favour of the prosecution case that in his exasperation, accused No. 2 should have taken his newly employed accused No. 1 in confidence to such an extent that he instigated him to murder his wife.

The next circumstance on which reliance is placed against accused No. 2 is in regard to his subsequent conduct whenever witnesses sought to question accused No. 1. The learned Chief Justice has cited four instances in regard to this conduct; (1) when accused No. 2 prevented accused No. 1 from going with P.W. 2, (2) accused No. 2 prevented accused No. 1 from answering P.W. 6, (3) similar conduct of accused No. 2 in regard to P.W. 44, and (4) the reluctance of accused No. 2 to question accused No. 1 even when his friend P.W. 23 suggested to him that if a blow or two is given to accused No. 1 the truth would be out. We must, however, add that the learned Chief Justice himself appears to have felt that no much significance can be attached to the instances referred to under 1, 2 and 3; but he thought that the incident deposed to by P.W. 23 was full of significance. In assessing the effect to this conduct it is relevant to remember that at the material time even P.W. 2 and her friends appeared to have moved on the basis that the deceased had left the place and had not definitely come to the conclusion that she had been murdered. If the prosecution case is that there was a certain amount of estrangement between husband and wife, it is very unlikely or impossible that accused No. 2 may have thought that in anger his wife had left his house and protection. The story disclosed by P.W. 78 cannot also be left out of consideration. Enquiries made both by P.W. 2 and accused No. 2 indicate that parties were working on the hypothesis that the deceased had left the house. Under these circumstances we think, it would be unsafe to read too much in the conduct of accused No. 2 on which reliance has been placed by the prosecution. Besides it is nobody's case that accused No. 2 kept accused No. 1 with him all the time or that in his absence accused No. 1 could not have been effectively questioned by witnesses. We are free to confess that this part of the conduct of accused No. 2 does appear to us to be suspicious; but in deciding whether this suspicious circumstance is so incriminating as to lead to the inference of the guilt of accused No, 2, the alternative hypothesis must be considered, and we are not prepared to rule out the alternative hypothesis as wholly unreasonable or impossible.

Then it is urged that accused No. 2 refused to open the rooms when he was first asked to do so; and the learned Chief Justice appears to have relied rather strongly on this circumstance against accused No. 2. On the second occasion when witnesses went to the house of accused No. 2 the rooms were open but nothing incriminating was found there. The argument is that accused No. 2 did not open the rooms on the first occasion because he was not then sure that no incriminating discovery would be made if the rooms were opened; but this argument sounds wholly unconvincing if regard be had to the evidence of P.W. 2 herself. P.W. 2 stated in her evidence that on the first occasion when accused No. 2. refused to open the door of the rooms, the windows of the rooms were open and she and Ors. had looked through those windows. It is true that other witnesses P.W. 3 and P.W. 4 suggest that they peeped through the ventilator. We see no reason why the statement of P.W. 2 should not be believed, and if that statement is believed the refusal of accused No. 2 to open the doors seems to be wholly without any purpose, and as such it cannot be treated as an incriminating circumstance against him. At this time P.W. 2 was shouting against accused No. 2 that he was a murderer; and even if accused No. 2 was innocent he would be naturally idignant and embarassed at the conduct of the crowd which sympathised with P.W. 2. This aspect of the matter cannot be wholly ignored.

The next argument is that accused No. 2 went near the house of P.W. 2 but did not step in. Accused No. 2's explanation is that he wanted to find out whether his wife had gone to her mother's place but having regard to the attitude adopted by P.W. 2 he contended himself by sending his friend Thampi to enquire about her. Under these circumstances how can one rely on this conduct as necessarily showing a guilty conscience on the part of accused No. 2? The failure of accused No. 2 in informing the police about the disappearance of his wife is also pressed into service against him. If accused No. 2 thought that his wife had left his protection in anger he would naturally not feel very keen on reporting the matter to the police. That is a possibility which has to be taken into account. Similarly it is urged that when the dead body was discovered, accused No. 2 did not care to look at the body to assure himself that it was the dead body of his wife. In our opinion the record does not show any clear or satisfactory evidence to justify the assumption that accused No, 2 did not look at the body before he went to the police station. The learned Chief Justice thought that the discovery of the dead body apparently did not come as a surprise to accused No. 2, and so it did not disturb him at all. This assumption also is not borne out by the record. The evidence of the taxi driver, P.W. 65, shows that after the discovery was made accused No. 2 was unable to drive his own car, and so a taxi was sent for; and when accused No. 2 came to the taxi he had to be brought by his friends who held his hands. According to the witness at that time he had become a little unconscious. The learned Chief Justice has not referred to this evidence and so it is not possible to say whether he believed it or not. In any case this part of the conduct of accused No. 2 cannot be characterised as very suspicious.

Then reliance is placed on the fact that in the complaint which he made before the police, he was careful to set out a case which would help his defence in case he was charged with the murder of his wife. It is also pointed out that even in this complaint, accused No. 2 does not implicate accused No. 1 at all, as he ought to have done if he had really been innocent. There is no doubt there is force in this argument. But while considering the effect of the statement made by accused No. 2 in his complaint, the learned Chief Justice has failed to take notice of the fact that he had treated this document as inadmissible, and if that document is inadmissible, the recitals made by it cannot be properly relied upon against accused No. 2. Besides the learned Chief Justice himself was not impressed by the prosecution argument in regard to the part alleged to have been played by accused No. 2 in regard to the activities and the evidence of P.W. 78.

The learned Advocate-General has urged that in dealing with the circumstances against accused No. 2 we should not lose sight of the background of the relationship between the husband and wife and he has asked us to consider the circumstances collectively in the light of the said background. According to him even the broad features of the case irresistibly suggest that accused No. 1 could not have committed the murder on his own and that it is the instigation of accused No. 2 alone which gave accused No. 1 the courage to murder his master's wife. He also contended that if the conduct of accused Nos. 1 and 2 in relation to each other and accused No. 2 in regard to the enquiries which were being conducted at the material time, is properly analysed, it would show that accused Nos. 1 and 2 were behaving as though they were accomplices of each other and that accused No. 2 knew all the time what had happened to his wife. There is no doubt, some force in this argument; but as we have pointed out, when each one of the circumstances is examined carefully it appears that an alternative and reasonably possible explanation is available in respect of each one of them; and even if the circumstances are considered collectively and the probabilities of the case are taken into account, it would at the highest be possible to say that a more reasonable inference would be that accused No. 2 was concerned in the offence. But that, in our opinion, would not justify the conclusion that accused No. 2 must have taken part in the offence. The rule of circumstantial evidence has inavitably to satisfy the inexorable test that the evidence must be wholly inconsistent with the innocence of the accused and that it irresistibly leads to the inference of his guilt. Having carefully considered all the circumstances in the light of the arguments urged before us by the learned Advocate-General we are unable to agree with the learned Chief Justice that the circumstantial evidence adduced in this case against accused No. 2 satisfies the said test.

Besides it would be material to state that the High Court was dealing with the case against accused No. 2 in an appeal against the order of acquittal passed by the trial Court. We have no hesitation in holding that having regard to the nature of the evidence adduced by the prosecution against accused No. 2, it is not a case where the High Court in exercise of its appellate jurisdiction should have interfered with the order of acquittal.

In the result, the appeal preferred by accused No. 2 is allowed, the order of conviction and sentence passed against him is set aside, and he is ordered to be acquitted and set at liberty.