Ram Raj vs State

S. N. Sahay, J.—This is an appeal against the judgment and order, dated January 15, 1983 passed by Sri Daya Shankar Misra, Vth Additional Sessions Judge, Gonda convicting Ram Raj appellant and sentencing him to imprisonment for life under Section 302, I. P. C. and to rigorous imprisonment for two years under Section 404, I.P.C.

The appellant Ram Raj was charged at the trial firstly, under Section 302, I.P.C. for committing the murders of Kandhai and Dukkhi by mixing poison in the food at his residence in village Sheonath Purwa hamlet of Shahjawa, Police Station Paraspur, District Gonda, in the night of February 3, 1981 ; secondly under Section 404, I.P.C. for taking out a sum of Rs. 224 from the pocket of the deceased Dukkhi on the same date, time and place and committing criminal misappropriation in respect of the same and thirdly, under Section 201, I.P.C. for causing the dead bodies of Kandhai and Dukkhi to disappear on the same date, time and place.

The prosecution examined 17 witnesses for proving the charges framed against the appellant. The case which has been unfolded against the appellant may be described as follows.

Dukkhi deceased was the son of Polar and resident of village Lohampur. He was married to the sister of P.W. 6 Babadin who is resident of village Jarauli Police Station Paraspur, District Gonda. Dukkhi deceased had two sons, namely, Kandhai deceased and P.W. 7 Gauri Shankar. The letter, namely, Gauri Shankar is alive and is said to be mentally deranged. Kandhai deceased was married in 1974 to Mangal, daughter of Muni Lohar. However, there was separation, three years after marriage, between the two and Kandhai was living separately because his wife was not good character. Both Dukkhi and Kandhai were living at Lucknow in Mohalla Shafdarbagh (House No. 104/68). Dukkhi was engaged in the work of grasscutting and Kandhai was doing the work of kitemaking. P.W. 9 Gangadin who is a resident of Lucknow carried on the work of grasscutting. In 198182, P.W. 9 Gangadin, his sister''s husband Jangli and Dukkhi deceased had taken a Theka of grasscutting in the New Court Compound (Nayee Kucheri) of Lucknow. Ram Raj, appellant also used to go with Dukkhi for grass cutting. The appellant used to tell Dukkhi that there was a woman in his village who had left her husband and the appellant would help in getting her married to Kandhai. This proposal was acepted by Dukkhi.

It is stated that on December 3, 1981, Dukkhi and Kandhai deceased accompanied by Ram Raj appellant and P.W. 7 Gauri Shankar left Lucknow by train at about 12 O''clock in the day. Dukkhi had purchased a pair of lady''s sandle a day earlier from Aminabad. Kandhai purchased four tickets from N.E.R. at the Railway Station. The railway tickets were for journey from Lucknow to Colonelganj. He gave one ticket to the appellant, kept one ticket with himself and gave the remaining two tickets to Dukkhi. All the above named four persons were seen off by P.W. 9 Gangadin at the railway station and were not seen alive thereafter. At the time of departure Dukkhi had informed Gangadin that he would come back after two or four days.

On December 4. 1981 two dead bodies were found in Chandha Nala which was situated at the southern side of village Doma Kalpi, Police Station Kotwali (Dehat), District Gonda. The Nala was at a distance of about half a kilometer from the village Abadi, P.W. 8 Onkar Singh had gone to see his field which was near the Nala. He later became Pradhan of village Doma Kalpi. He went to P.W. I Jag Prasad Chaukidar of the village and informed him at about 12 or 1 P. M. that two dead bodies of male persons had been found in Chandha nala. P.W. 1 Jag Prasad came to the spot and found that several persons of the village had collected there, but none of them was able to identify the dead bodies. One of the dead bodies was of an aged person and the other was of a young person. Jag Prasad fou id, on search of the dead body of the young person, one Parcha one railway ticket from Lucknow to Colonelganj and a sum of Rs. 171 consisting of a Currency Note of Rs. 100 aad some other Currency Notes. Jag Prasad took these articles in his possession and proceeded to the Police Station.

P.W. 1 Jag Prasad reached the Police Station Kotwali (Dehat), Gonda, on December 4, 1981 at 5.30 p.m He gave information that two dead bodies were found in Chandha nala. He also deposited the articles which were recovered on a search from one of the dead bodies. P.W. 12 Mohd Amin, Head Moharrir recorded the information given by the Chaukidar and made entry Ex. Ka.15 in the General Diary. He also prepared Fard Ex. Ka1 in respect of the railway tickets and the Parcha brought by the Chaukidar. Since the matter related to Police Station Paraspur, the papers were sent there by Head Moharrir Mohd. Amin

P.W. 14 Janardan Tewari, who was posted as Head Constable at Police Station Paraspur registered a case under Sections 303, 201 and 404, I. P. C. on December 28, 1981 at 6.20 p.m. and made entry Ex. Ka16 in the General Diary. Under the orders of the Superintendent of Police the case was, however, investigated by the Police of police station Kotwali (Dehat), District Gonda.

P.W. 16 S. I. Drig Vijai Singh, was present at his quarter at the time when information about the dead bodies was given by the Chaukidar at Police Station Kotwali (Dehat). On getting information Sri Singh accompanied by the Chaukidar and other staff left for Chandha Nala and reached there at about 8 p.m. He found that two dead bodies were lying there. There was no arrangement for light, therefore, he stayed during the night and prepared inquest reports Exts. Ka4 and Ka5 in respect of the two dead bodies He also sealed the two railway tickets from Lucknow to Colonelganj. These tickets were found in a White Jeen coat Ex. Ka26 from the dead body of the old man. There were also found one Pant Ex. Ka25 and two pairs of plastic Chappals Ext. Ka14 near the dead bodies. One of the Chappals was of black colour and the other was of yellow colour. These article were taken in possession and Fard Ext. Ka2 was prepared in respect of the pant and Fard Ext. 3 in respect of the Chappals In the meantime S. I. Dhani Ram arrived with a Photographer who took photographs of the death bodies. These photographs are Exts. Ka4 and Ka5 which were proved by D.W. 3 Paras Nath.The necessary documents such as Diagram challan etc. Exts. Ka17 to Ka23 were prepared and the dead bodies were sent in a sealed condition for postmortem examination. By that time the dead bodies had not been identified by any one.

At the time when inquest proceedings were going on Bachchu LalLohar brought a boy, who was stated to be the son of Dukkhi deceased. The boy who was aged about 14 or 15 years wept and cried. He was addressing the dead body of old man as ''Bappa'' and the dead body of young man as ''Bhaiya''. He was unable to speak and stated nothing about the identity of the dead bodies and appeared to be insane. The boy was given in the custody of P.W. 6 Babadin and Fard Ex. Ka9 was prepared by S. I. Drig Vijai Singh. He was examined on December 7, 1981 by P.W. 4 Dr. O. P. Srivastava who gave report Ext. Ka6 that the boy was of deranged mind and no poisonous substance had been administered to him. This boy was produced at the trial and was identified as Gauri Shankar by P.W. 6 Babadin. However, Gauri Shankar who was proposed to be examined as P.W. 7 was discharged because he did not answer any question and appeared to be halfmad.

S. I. Drig Vijal Singh inspected the place where the dead bodies were found and prepared siteplan Ex. Ka24. When he got the Photographs of the dead bodies Exts Ka8 and Ka9, he came to Lucknow and interrogated Munni Lal Lohar and others. The photogarphs were shown to P.W. 6 Babadin and P.W. 9 Gangadin, who identified the photograph of the old man to be of Dukkhi deceased and the photograph of the deadbody by the young man to be of Kandhai deceased. Sri Singh again went to Chandha nala on December 10, 1981 and caused search to be made in the expectation that something more may be tound. A pair of Chappals of black colour Ex. 14 and Chunauti Ex. 27 were discovered. These articles were seized and Fard Ex. Ka13 was prepared.

On December 27, 1981, Sri Drig Vijai Singh came to know that Ramraj appellant was living in a Chappar on the western side of Ram Achal Pandey Ki Bagiya in village Sheonath Purwa. On receiving this information Sri Singh accompanied by P.W. 8 Onkar Singh, Vidya Dhar Pandey, Ram Dhiraj and Ramesh Singh proceeded to the house of the appellant. The party reached there at about 9.45 a.m. The appellant tried to run away on seeing the police party, but he was overpowered and arrested. He made confession about the crime and stated that he had concealed the belongings of the deceased persons. The appellant took the police party in his Chappar and after removing Payal which was appeared on northern s, ide, took out a woollen coat of black colour Ex. 10, a woollen sweeter Ex. 11, Mufller Ex. 18, a Janghia of greenish (Dhani) colour Ex. 4 and underwear of Chheem Ext. 28, a bushshirt Ex. 1, a Payjama Ex. 17, Chappar Ex. 12, a pair of plastic Chappals Ext. 14/1 and a pair of red Chappals Ex. 15/1 and delivered the same to the police party stating that these clothings were of Dukkhi and Kandhai. The articles were taken into possession by S. I., Sri Singh and Fard Ex. K10 was prepared by him in respect there of. The appellant also took out from the Chhappar a sum of Rs. 224 which was tied in a cloth and told S. I. Sri Singh that the same belonged to Dukkhi and Kandhai. The cash (Ext. 29), was also seized by Sri Singh and Fard, Ex. Ka12 was prepared. Sri Singh searched the house of the appellant and found a Dibba Ex. 20, which was kept on the brink of Tatia in the northeast corner of the Chhappar. The label on the Dibba contained a writing ''Began 500 ml. net'' and also the word ''poison'' in English and ''Zahar'' in Hindi and carried photos of bugs and other insects. The word ''Bayer'' was written on the Cork and some liquid was present in the Dibba. One Chhatank of Nausadar kept in a plastic paper was also found near the Dibba. These articles were also seized by Sri Singh and Fard, Ex. Ka11 was prepared. The appellant was arrested and was brought along with the seized articles to the Police Station, Kotwali (Dehat), where entry, Ex. Ka25 was made in the General Diary at 3.15 O''Clock. Sri Singh also prepared a siteplan Ex. Ka26 of the place from which the abovementioned recoveries were made. The investigation of the case was later taken over by S. H. O., Sri Kesho Prasad Rai, who submitted a chargesheet, dated March 17, 1982, Ex. Ka28.

The postmortem examination of the dead bodies which were found in Chandaha Nala was made by P.W. 5, Dr. R.S Pandey, Medical Officer, Gonda The postmortem report Ex. Ka7 shows that the dead body of the young man was examined on December 4, 1981 at 4 p.m. He was aged about 25 years and the death had taken place about three days earlier. Rigor morties had passed off from upper limbs and was passing from the lower limb. The nails and lips were bluish and the eyes were semiclosed and congested. There were no antemortem injuries. On internal examination it was found that laryn trachea and bronchi and right and left lungs were markedly congested. The oesophagus was also congested. The stomach was congested and contained greenish fluid material about one ounce. The small and large intestines were congested and contained faecal matter. Liver, pancreas and spleen and kidneys were also congested. The cause of death could not be ascertained and the visceara was preserved for chemical examination.

Dr. Pandey examined the dead body of the old man on December 4, 1981 at 2 p.m. and prepared the postmortem report, Ex. Ka8, He found that the age of the deceased was about 60 years and death had taken place about three days earlier. Rigor morties has passed off from the upper limbs and was passing from the lower limbs. The body was matted with mud. There was no ante mortem injuries. The pleura, larynx traches and bronchi and both lungs were markedly congested. Stomach was congested and contained greenish matter of about one ounce. The large and small intestines were congested and contained faecal matter. The pancreas, spleen and kidneys were also congested. The cause of death could not be ascertained and the visceara was prescribed for chemical examination. The visceara was sent to the chemical examiner for examination. The chemical examiner, after examining the same, gave the report, dated February 4, 1982 (Ex. Ka20)'' that almunium phosphaid which was a poisonous substance, was found in small quantity in the visceara of both the dead persons.

During the investigation the various articles which were recovered from the dead bodies or from the house of the appellant were put up for identification. The identification proceedings were held by P.W. 11 Sri Mohd. Naqi Khan, Special Executive Magistrate, Gonda on March 5, 1982. He prepared identification memo Ex. Ka14. The articles for identification were produced by P.W. 13, Constable Bhavendra Singh and the articles to be mixed with them, were brought by P.W. 15, Abdul Jalil, Contractor. Babadin correctly identified Chadar, Sweater, Janghia. Woollen Coat of black colour and Jhola. Gangadin identified Chappal of black colour and also of red colour, cotton Bushshirt, Muffler, Sweater, Jhola, Janghia and Woollen Coat.

The appellant pleaded not guilty and denied the prosecution case. He alleged that P.W. 8, Onkar Singh wanted to take Begar from him on his refusal to do so, caused him to be falsely implicated in the case by the police He has also stated that he never took any Theka of grasscutting nor lived with the deceased nor came with them nor induced them to come from Lucknow on the pretext of causing the marriage of Kandhai to be performed. He denied to have given poison to the deceased or to have known the persons whose dead bodies were recovered from the Chandaha Nala. He also denied the recovery of any articles of the deceased from his house. The appellant did not produce any evidence in defence.

The learned Additional Sessions Judge has found that it is proved from the evidence on record that the dead bodies of Dukkhi and Kandhai were recovered from the Chandaha Nala and information of this fact was given by Onkar Singh to Jag Prasad, Chaukidar and by Jag Prasad, Chaukidar in his turn to the police of Police Station Kotwali (Dehat), Gonda. The evidence of P.W. 6 Babadin and P.W. 9, Gangadin who identified the photographs of the deceased, persons and the articles recovered from the house of the appellant, has also been accepted at it has been held that the dead bodies were of Dukkhi and Khandai and that the said articles belonged to the deceased persons It has also been held that the appellant taking advantage of the separation between Kandhai and his wife, induced Dukkhi and Kandhai to travel with him from Lucknow to Colonelganj and to go to his house. Accordingly, the prosecution evidence has been believed by the learned Trial Judge that the appellant gave poison to the deceased persons and thereby murdered them. The plea of the appellant that he has been falsely implicated in Ihe case has been rejected. In view of the above findings, the appellant has been convicted under Sections 302 and 404, I.P.C. But he has been acquitted of the charge under Section 201, I. P. C. on the ground that the evidence to prove the charge under that section is not sufficient.

It has been contended by Sri Anand Mohan who has argued the case as Amiius Curie on behalf of the appellant that the charges framed against the appellant have not been established and the appellant is entitled to acquittal. This is contested by the learned Additional Public Prosecutor (Government Advocate) who has tried to support the conviction of the appellant.

It has been noticed that the main charge against the appellant is that he has committed the murder of Dukkhi and Kandhai by mixing poison in the food at his residence in village Sheonath Purwa. In order to prove this charge the prosecution has not produced any direct evidence but has relied on circumstantial evidence. In Bhupendra Singh v. State of Punjab, (1988) 3 SCC 513, their lordships of the Supreme Court referred to the earlier decisions in Anant Chinlamani Lagu v. State of Bombay, AIR 1960 SC 500 ; Mohan v. State of Uilar Pradesh, AIR 1960 SC 659 Ram Gopal V. State of Maharashtra, AIR 1972 SC 656; Sarad Virdhi Chanda v. State of Maharashtra, AIR 1984 SC 1622 and two unreported decisions in Chandra Kant v. State of Bombay, Criminal Appeal No. 120 of 1957 decided on February 19, 1958 and Dharamvir Singh v. State of Punjab, Criminal Appeal No. 98 of 1958, decided on November 4, 1958 and held that in cases of murder by poisoning the Court must carefully scan the evidence and determine four important circumstances which alone can justify a conviction. These circumstances are : (1) that there is a clear motive for the accused to administer poison to the deceased ; (2) that the deceased died of poison said to have been administered ; (3) that the accused had the poison in his possession ; and (4) that he had an opportunity to administer the poison to the deceased. In this connection a note of caution was struck and it was observed that the accused cannot be acquitted solely on the ground that the prosecution has failed to prove possession of the poison with the accused, but the totality of the circumstances should be taken into consideration.

In Padala Veera ReJdy v. State of Andhra Pradesh, AIR 1960 SC 79, it has been laid down by their Lordships that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :

(1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established ;

(2) those circumstances should be a definite tendency unerringly pointing towards guilt of the accused ;

(3) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and

(4) the circumstantial evidence in order to sustain conviction must be complete incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

To similar effect was the latter enuaciated in earlier cases to refer to a view of them Mahmood v. State of U. P. (1976) 2 SCO 330 and Lakshmi Rai Setti v. State of Tamil Nadu, (1988) 3 SCC 319. The case of Ear Bhadrappa has also been referred to in Padala''s case cited above.

In the present case the only fact which can be said to have been firmly established from the prosecution evidence is that the dead bodies of two persons were recovered from Chandaha Nala on December 4, 1981. The dead bodies could not be identified by any one on the spot and the identify of the dead bodies remained unknown even upto the time when the postmortem examination was held. The only person who might have thrown some light on the identity of the dead bodies, was a boy who was brought by Bachchu Lal Lohar at the time when the inquest proceedings were being held. That boy was crying and saying ''Bappa'' and ''Bhaiya'' on seeing the dead bodies. But nothing turned out as the boy appeared to bs of unsound mind.

The fact that the dead bodies were of Dukkhi and Kandhai has been sought to be established by the evidence of P.W. 6, Babadin and P.W. 9, Gangadin who identified the photographs Exts. 8 and 9 to be of Dukkhi and Kandhai These photographs have not been proved according to the strict rules of evidence. P.W. 16, S. I. Drig Vijai Singh has simply stated that while he was making investigation, S. I. Dhanai Ram brought a photographer who took photos of both the dead bodies. ''P.W. 10 Constable Sheo Shankar Tewari, on being shown the photographs, Exts. 8 and 9 stated that they were the photos of the dead bodies which were produced by him before the Medical Officer. S. I. Dhanai Ram or the photographer has not been examined. It was the duty of the prosecution in view of the provisions of Sections 60 to 65 of the Evid ence Act to examine the photographer who might have proved that he had taken photos of the dead bodies and had developed the photographs, Exts, 8 and 9 from the negative or to examine some who might have testified that that the photos of the dead bodies were taken and the photographs, Exts. 8 and 9 were developed and prepared from the negatives in his presence. It is usual to produce the negative in the Court. In Brahma v. Chartered Bank, AIR 1956 Cal 399, the photographer had not been examined but there was evidence of a witness that the photographs were taken in his presence and so it was held that the photographs had been property proved. The prosecution has contended itself by producing evidence that the photographs of the dead bodies were taken and P.W. 6 Babadin and P.W. 9 Gangadin identified the photographs, Exts. 8 and 9 to be the photographs of Dukkhi and Kandhai However, since it has not been seriously called in question that the photographs, Exts. 8 and 9 a re o f the dead bodies found in the Chandaha Nala and have been identified to be the photographs of Dukkhi and Kandhai, we shall proceed to deal with the remaining evidence on that basis.

The most important circumstances of which evidence has been given by the prosecution are that Dukkhi and Kandhai were last seen in the company of the appellant ; that the appellant had motive to do away with the deceased persons and that the clothes of the deceased persons were recovered after their murder from the possession of the appellant.

P. W. 9 Gangadin is the solitary witness who has been examined to prove that Dukkhi and his two sons Kandhai and Gauri Shankar accompanied by the appellant, purchased tickets for journey from Lucknow to Colonelganj and boarded the train and were seen off at the railway station by Gangadin and thereafter Dukkhi and Khandhai were not seen alive. The evidence of Gangadin shows that his brotherinlaw, Jangali had taken Theka jointly with Dukkhi for grasscutting in the compound of Nayee Kuchery for a consideration of Rs. 100 which was paid by Dukkhi and Jangali in equal shares. The Theka work was completed with in 8 or 10 days in which the work of grasscutting was done by Dukkhi, Jangali, Gangadin and the appellant. It does not appear that there was any other opportunity for Gangadin to be on intimate terms with Dukkhi. The railway tickets, Exts. 22 to 24 which were found on the dead bodies have been relied upon by the prosecution for the corroboration of testimony of Gangadin. The railway tickets were recovered from the dead bodies in two instalments. When P. W. 1 Jag Prasad received information about the discovery of two dead bodies in Chandaha Nala, he came there and took search and recovered one ticket from the dead body of the young man. Jag Prasad did not search the other dead body of the old man and no explanation has been given by the prosecution as to why the Chaukiclar searched only one dead body and omitted to take search of the other dead body. The other two railway tickets were seized by the I. O., Sri Drig Vijai Singh when he came to Chandaha Nala for making investigation. The date of issue which is embossed on the railway ticket is not decipherable from any of the three tickets in question. The I. O., Sri Drig Vijai Singh has stated that he was informed by the Booking Clerk that the said tickets were issued on December 3, 1881 for KanpurSamastipur Express Train. This information was given by the Booking Clerk after perusing the Booking Register. The inquiry regarding the tickets had been made orally on December, 7, 1981 but the statement of the Booking Clerk, Narendra Nath Srivastava was recorded on January 3, 1982. The Booking Register was neither seized nor copies of extracts there from were taken. These circumstances are of suspicious nature and should have been explained by the prosecution.

P. W. 7 Gauri Shanker who is said to have travelled with his father, Dukkhi on that fateful day has not thrown any light on the matter. Gauri Shankar was produced and identified by P. W. 6 Babadin in whose custody he had been given. The learned Additional Sessions Judge has recorded that the evidence of Gauri Shankar was not taken as Gauri Shankar appeared to be half mad and was unable to answer any question and the only statement which was given by him on any question being put to him, was that his father is gone (Bappa Gaya). The question which were put to Gauri Shankar have not been recorded. Gauri Shankar was competent to testify unless it was considered by the Court as laid down in Section 118, Evidence Act that he was prevented from understanding the questions put to him or from giving rational answers to those questions. In view of the explanation to that section, even if he was a lunatic, he was not incompetent to testify unless he was prevented by his lunacy from understanding the questions put to him and giving rational answers to them. Had the questions put to P.W. 7 Gauri Shankar been recorded, the Appellate Court would have been in a position to appreciate whether any effort was made by the Trial Court in the right direction to ascertain the capacity of the witness to understand the questions put to him and to give rational answers to those questions. It is desirable that the questions put to such witnesses, as in the case of child witness and the answers given by them to those questions should be recorded by the courts verbatim so that the opinion formed by them as to the competence of the witness to testify may be viewed and judged properly. We would expect the Trial Judge to record the evidence of witnesses not in mechanical manner, as has been done by the learned Additional Sessions Judge in this case, but in such manner as would indicate that he was alive to the requirements of law as to the matter testified to by the witness. The Trial Judge should remember that according to Section 3, Evidence Act, evidence means and includes all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry. It is for the Trial Judge to see that the witness is not only permitted but also required to give all such statements as would be necessary in law to be considered for the adjudication of the matters of fact under inquiry.

It is stated that the appellant had promised to get Kandhai married in his village and because of this Dukkhi and Kandhai had decided to go along with the appellant. The evidence of P.W. 6 Babadin shows that Kandhai was married to the daughter to Munni Lal Lohar in 1974 and a daughter was born to them after one and a half year and then separation had taken place between them three years after the marriage. Munni Lal and his family members were interrogated by the I. O. but they have not been examined as witnesses in this case. The prosecution has not produced the best possible evidence to prove the fact that separation had taken place between Kandhai and his wife and, therefore, Kandhai intended to remarry. There is also no evidence to show that Dukkhi and Kandhai had gone with the appellant to his village. It is stated in the charge that the murder of Dukkhi and Kandhai was committed by the appellant at his house in village Sheonath Purwa. This implies that Dukkhi and Khandhai were taken by the appellant to his house, but no evidence has been produced to prove this fact. The I. O., Sri Drig Vijai Singh has stated in his deposition that he did not examine the record of Colonelganj Railway Station in order to find out the time when the train by which Dukkhi and Kandhai are said to have travelled on December 3, 1981, had reached there. It is admitted by the I. O. that he could not contact any person who might k have told that the deceased persons went from Colonelganj Railway Station to the house of the appellant. I here is also no evidence to show that Dukkhi and Kandhai were in possession of some valuable property which might have tempted the appellant to commit, the offence of murder. Jag Prasad, Chaukidar had found a sum of Rs. 171 on the dead body of the young man. The police is shown to have recovered a sum of Rs. 224 only from the house of the appellant. The prosecution has failed to prove that the appellant had taken Dukkhi and Kandhai to his house or had motive to commit their murder.

The identification of articles of the deceased persons said to have been recovered from the appellant is the next circumstance on which the prosecution has relied for establishing the guilt against him. We may take it on the strength of the testimony of P. W. 16 Drig Vijai Singh, I. O. and other witnesses that certain articles referred to above were recovered from the Chhappar of the appellant on December 27, 1981. P.W. 6 Babadin and P. W. 9 Gangdin have identified the articles in question. Babadin has stated that Coat, Sweater, Chadar and Jhola, Exts. 10 to 13 belonged to Dukkhi and Kandhai. Similarly, Gangadin has stated that Coat Ex. 10 was of Dukkhi and Muffler Ex. 12. Kamiz, Ex. 16, Bushshirt Ex. 1, Sweater Ex. 3, Jhola, Ex. 13, Chadar Ex. 12 and Janghiya Ex. 4 are of Dukkhi and Kandhai. Except the Coat, Ex. 10 no article of Dukkhi and Kandhai has been identified separately. Even at the time of identification proceedings which were held on March 3, 1982, after sufficiently long time, Babadin and Gangadin did not make any statement with regard to the person to whom the clothes identified by them specifically belonged. The manner in which the clothes have been identified by Babadin and Gangadin does not inspire confidence. It will not be proper identification in the circumstances of the case to say that the clothes belonged to Dukkhi and Kandhai. There is no evidence to show that the money recovered from the possession of the appellant belonged to the deceased. It is mentioned in the recovery memo, Ex. 12 that the appellant stated at the time of recovery that he committed murder and threw the dead bodies in the Nala and took cash from the possession of Dukkhi deceased and that a portion of the said amount was spent by him and the remaining sum was kept in the Chappar. After that the appellant took out a bundle containing Rs. 224 which was kept in the upper portion of the Chappar. The statement of the appellant that he had taken out money from the dead body of Dukkhi and had spent a portion of it is not admissible under Section 27, Evidence Act. The prosecution has failed to prove by satisfactory evidence that the clothes which are shown.to have been recovered from the possession of the appellant belonged to Dukkhi and Kandhai deceased.

The evidence adduced by the prosecution leads to the inference that the death of Dukkhi and Kandhai was caused by administering alrnunium phosphoid which is to be drawn from the report Exhibit Ka30 of the Chemical Examiner. Dr. Pandey, who conducted the postmortem examination of the dead bodies was unable to express any opinion about the cause of death. The prosecution has produced no evidence to show that the appellant had administered the aforesaid poisonous substance to the deceased or had any opportunity to administer the same to them. In this connection, it may be mentioned that the prosecution has led evidence to show that the Dibba, Ex. 20 was recovered from the Chappar of the appellant and a plastic paper containing one Chhatank of Nausadar was also found near the Dibba. There was some liquid in the Dibba aiid the label on the Dibba contained a writing ''Began 500 ml. net'' and word ''poison'' in English and ''Zahar'' in Hindi. However, the prosecution did not cause the contents of the Dibba to be examined by the Chemical Examiner or some other expert. It cannot be said that the liquid contained almunium phosphid and such an inference cannot be drawn from the writings on the label of the Dibba or the fact that JSlausadar was kept in the plastic paper near the Dibba. No explanation has been given by the prosecution for the admission to get the contents of the Dibba examined by the expert. Therefore, the prosecution has miserably failed to establish that the appellant had the poisonous substance containing almunium phosphoid in his possessioa or had an opportunity to administer the same to the deceased.

It will be clear from the above discussion that the prosecution has not produced satisfactory evidence to establish the circumstances which have been relied upon to prove the guilt of the appellant. Even if these circumstances are regarded as having been established, they taken together do not lead to the inference that the murder of Dukkhi and Kandhai was committed by the appellant. In this connection, it is very significant that there is absolutely no evidence to prove the fact that the deceased persons were taken by appellant to his house as indicated in the charge, or that the appellant had in his possession and had opportunity to administer the poisonous substance which caused the death of Dukkhi and Khandhai. When the principal charge of murder has not been established against the appellant, he cannot be convicted under Section 404, I. P. C. also. There is no reliable evidence to prove that the appellant has misappropriated the property of Dukkhi and Kandhai knowing that such property in their possession at the time of their decease. The appellant has already been acquitted under Section 201, I. P. C. which was interlinked with the offence of murder and it has not been shown that any appeal has been preferred against the acquittal of the appellant and is pending. Consequeatly, the appellant is entitled to acquittal.

Before we part, we would like to record our appreciation for the valuable assistance rendered by the amicus curie, Sri Anand Mohan, as also the fair manner in which he learned Additional Government Advocate Sri Analai Banerji has presented his case.

We allow the appeal, set aside the judgment and order under appeal and hereby acquit the appellant under Sections 302 and 404, I. P. C. The appellant who is in jail, shall be released forthwith unless wanted in some other case. Let appropriate action be taken accordingly.