Holding

The conviction of the appellants was unsustainable as the evidence was fraught with improbabilities and the findings of guilt were manifestly erroneous, leading to their acquittal.

Summary

The appellants Arjun Marik, Mulo Marik and Bansi Marik were convicted of murdering Sitaram, his wife and granddaughter and of robbery, and sentenced to death under IPC sections 302, 394 and 411. The Supreme Court re‑examined the circumstantial evidence, finding no reliable motive, inconsistencies in the prosecution’s narrative, and serious doubts about the raid, seizure and identification of the stolen articles. It noted that the FIR was lodged and sent to the magistrate with an unlawful delay, violating Sections 157 and 159 of the CrPC, and that the interested witnesses (nephews of the deceased) required heightened scrutiny. The Court held that the chain of circumstances was incomplete, the only "last seen" evidence insufficient, and the findings of guilt were manifestly erroneous and unreasonable. Consequently, the convictions and death sentences were set aside and the appellants were acquitted.

Issues considered

The adequacy of circumstantial evidence to sustain a conviction for murder and robbery.
Whether the absence of a proven motive (money‑lending dispute) defeats the prosecution case.
Whether the delay in filing and forwarding the FIR under Sections 157 and 159 CrPC vitiates the prosecution.
The legality and reliability of the raid, seizure and subsequent identification of the alleged stolen articles.
The credibility of interested witnesses (nephews of the deceased) and the need for greater caution.
Whether the "last seen" circumstance alone can complete the chain of circumstances for conviction.

Legislation cited

Code of Criminal Procedure, 1973s. 156, s. 157, s. 159
Indian Penal Code, 1860s. 302, s. 394, s. 411

Subjects

murdercircumstantial evidencemotiveFIR delaySection 157 CrPCdeath penaltyacquittalinterested witnessraid and seizureidentification of stolen articles

Judgment

ARJUN MARIK AND ORS. A
) v.
STATE OF BIHAR

MARCH 2, 1994

[DR. A.S. ANAND AND FAIZAN UDDIN, JJ.] B

l.P.C. 1860-Sections 302, 394 and 411-Death sentence-Multiple
' Murders and Robbety-On re-appreciation of evidence, held, offence not
proved against accused-<:oncummt findings of two courts reverseti-Acquit-
tal. c
F.l.R.-Delay in lodging-Not lodged till after raid in appellants' house
and seizure of lllticles allegedly robbed vitiates prosecution case.

. Recovery and identification of lllticles-Raid conducted in clandestine
mannel"'-Exact weigh~ same number and detailed description of recovered D
lllticles by witnesses, held, inherently improbable-Delay in identification of
' articles not explained.

Interested witnesses-Evidence of, requires greater care and caution,
though mere relationship cannot be sole basis to discard evidence other.vise
found believable and trustwolthy. E
O. P.C. 1973-Sections 156, 157, 159-FIR sent to magistrate on the
third day after the occurrence, held, casts doubt on credibility of prosecuton
story-Also, held, even after delay total absence of material for actual
despatch and receipt of FIR by Magistrate not on record.
F
Section 157-Delay in sending FIR to Magistrate-f'rosecution explana-
tion that in State of Bihar FIR is never sent to residence of Magistrate on
Sundays and holidays-Held, such a practice would render mandatory
provisions nugatory-ff such practice prevalent, it must be deprecatetf-The
provisions to be complied with in letter and spirit. G
Criminal appeal-f'ractice-Coun will not disturo concurrent findings
of fact l.lllless it is manifestly erroneous, illegal or violative of fundamental
'rnle of procedure or natural justice.

Circumstantial evidence-Moti~e and opponunity assumes importance H
265

.,
/
266 SUPREME COURT REPORTS !1994] 2 S.C.R.

A where only circumstantial evidence is available.
Circumstance of-Last seen-Held, only circumstance of last seen will
not complete chain of circumstances-Conviction cannot be on that basis
alone.

B Possiblity of crime being committed by someone else, held, canot in the
circumstances be ruled out.

In the intervening night of 19 and 20 July, 1985, S. his wife and their "
grand daughter were murdered. Ornaments, cash and other belongings
were allegedly robbed. The appellants charged, tried, and convicted for
c offences under sections 302, 394 and 411. The Sessions Court sentenced
, each of them to death under section 302, and to 10 years R.I. and 3 years
R.I. respectively, which were dlirected to run concurrently. The High Court
confirmed the conviction and sentence.

D The prosectlon case was that Sitaram was a money lender. The first
appellant who bad taken loans from him, came to the house, of S with his
2 sons to raise a further loan which S refused to advance. The appellants
thereafter stayed overnight ou the upper storey. Early morning, 'S' his wife
and grand daughter were found dead and the appellants were missing.
Valuable articles, ornaments, currency notes worth Rs.14,000 and some
E clothes and papers were found missing.

On raiding the honse of the first appellant, a plastic bag containing
the stolen ornaments, currency notes and other belongings were allegedly
recovered.
F The nephews of 'S' identified the articles, Including the curency r

notes. They also testified to the presence of the accused at the place of
ocurrence on the preceding night, and to the relationship between the
deceased and the accnsed.

On appeal, this Court
G
HELD : 1.1. Generally, mere absence of proof of motive for commls-
sion of a crime cannot be a ground to presume the innocence of an accused
if the Involvement of the accused is otherwise established. Where the only (

evidence available is circumstantial evidence then the motive does assume
H importance. If it is established form the evidence on record that the
ARJUN MARIK v. STATE OFBIHAR 267

~
accused had a strong motive and also an opportunity to commit the crime A
and the established circumstances alongwith the explanation of the ac·
cosed, if any, exclude the reasonable possibility of any on~ else being the
perpetrator of the crime then the chain of evidence may be cosidered to
show that within all human probability the crime must have been com·
milted by the accused. (273-H, 274-A·B]
B
1.2. There is no material on record to suggest that 'S' was a money
>
lender or that the accused took loans from him. It is, therefore, not
possible for this Court to hold that the appellant could have entertained
any idea or motive to do away with the deceased 'S' with a view to wash off
the alleged loans against him. [275·D] c
2. Mere relationship of the witness cannot be the sole basis to
discard the evidence if it is otherwise found to be believable and trust-wor·
thy. However, the evidence of an interested witness requires greater care
and caution while scrutinising bis evidence. (275-FJ
D
3. As a rule of practice, in appeal against conviction for offence of
murder, this Court is slow to disturb a concurrent finding of fact unless
it is shown that the finding is maifestly erroneous, clearly unreasonable,
unjust or illegal or violative of some fundamental rule of procedure or
natural justice. Further, it bas also to be remembered that in a murder E
case which is cruel and revolting it becomes all the more necessary for the
Court to scrutinise the evidence with more than ordinary care lest the
shocking ·nature of the crime might induct instinctive reaction against a
dispassionate judicial scrutiny of the evidence in law. (276-C, DJ
- Masa/ti v. State of U.P., A.l.R. (1965) SC 202 = (1964] 8 SCR 113, F
referred to.

4. Alarm was raised or the occurrence at 5.30 a.m. The police station
is at a short di~ltmce from the place of occcurrence. The deceased's
nephew bad gone f:o the police station and it is improbable that he wonld G
not have lodged 8'l F.I.R. but would have came back to make a fard-beyan
later at 8.30 a.DI. 1be Police Inspector admits that be received intimation
' about the three mu1•ders and recorded It in the Roznamcha Sanha, but the
entry was not produe.•d which further deepens the doubt, for which adverse
inference is the natural conseqence. The inquest reports prepared between H
!

268 SUPREME COURT REPORTS [1994] 2S.C.R.
A 9 and 9.30 a.m. shows that the Inspector had registered the offence. It,
appears that the Sanha report was purposely not produced In the court as
it did not reflect any doubt on the appellants as the perpetrators or the
crime. [278·F·H, 279-A·Bl

5. The evidence regarding raid and seizure is not free from doubt.
B The raid was conducted in a clandestine manner by the Investigating
Officer. The most surprising part of the sei~ure of articles is the exactness
of their description in the fard-beyan and the F.I.R. Also, the witness, who,
was the deceased's nephew, mentioned details including the weight of the
ornaments and the cash seized, though he had stated that he had never
C counted bis uncle's money or touched nor weighed his aunt's ornaments.
Even the currency notes were indentlfied, which defies comprehension.
This gives the impression that the fard·beyan and the F.I.R. were recorded
on the basis of the description of the articless seized, after the police raided
the appellants' house and seized the articles. (279-C-F]
D
5.2. That was perhaps why the attesting witnesses to the seizure were
the two accused themselves, and why the Inspector was unable to give out.'
the names of any of the villagers who had avowedly declined to stand as
witness to the seizure. [279-F]

E 5.3. There Inherent improbabilities and infirmities make te record·
ing of a finding of guilt manifestly erroneous and unreasonable. [280-E]

6.1. Section 157 Cr.P.C. directs the sending of the F.I.R. wlthont any
delay and immediately. Section 159 Cr.P.C. envisages a preliminary in·
F quiry. The dual purpose or these provisions is firstly to avoid the pos-
sibility of improvement in the prosecution story and introduction or any ,-
distorted version by deliberations and consultation and secondly to enable
the Magistrate concerned to have a wakh in the progress of the investiga·
lion. [281 ·CJ

G 6.2.- The Report in this case is said to have been despatched on the
third day after the incident. Even apart from the delay, there is no material
on record to show that it was actually despatched and received by the
Magistrate concerned and if so on what date and time. A mere note in the '
F.l.R. itself that report bad been despatched by special messenger Is not
H enough. (281-H; 282-AJ
ARJUN MARIK v. STATEOFBIHAR 269

6.3. While there may be valid reasons for delay in despatch of F .I.R., A
it depends on the facts and circumstances of each case. In the present case,
this circumstance of delay hardens the suspicion and leads to the definite
conclusion that fard·beyan and F.I.R. both were recorded much later in
point of time than is shown In the said documents and in any case after
the appellants' house was raided and seizure of the ariticles was effected.
B
[282-B, CJ
7. It was submitted that in Bihar State even in murder cases F.I.R.
is never sent to the residence of a Magistrate on Sundays and holidays. If
that he so, such a practice can never be said to be a healthy practice which
renders te mandatory provision nugatory. If such a practice is prevalent C
it must he deprecated and it is high time that the authorities concerned
wake up and see that the provisions of Section 157 Cr.P.C. are complied
with in letter and spirit. [281-F, G]

8. The articles were put to test identification more than a month after
they were seized. No reason for this delay is forthcoming. [282-D] D
9. The evidence of the witness who testified to the presence of the
accused, and the transaction between the accused and the deceased has
not been found to he trustworthy and consistent. [285-A]

10. The evidence of a chance witness, who also demonstrated to have E
a reason to depose against the appellant cannot be relied upon. [285-D]

11. Even if the accused stayed In the house of the deceased, the only
circumstance of last seen will not complete the chain of circumstances to
record the finding that it is consistent only with the hypothesis of the guilt
of the accused. [285-G, HJ
F

12.1. There is no dispute that the deceased died homicidal death.
[273-E-F]
12.2. There is evidence that the deceased's house is near the temple,
that lakhs of pilgrims throng the place particularly in the inonth of G
shravan, and that ou the date of occurrence there were large number of
pilgrims coming and going in the temples and dharamshalas. In the
circumstances, the p~ssibility could not be ruled out thiit anyone else
entered the house at the d»,ad of night, killed tlie inmates and escaped with
the belongings of the dece&sed. (286-ll-D] H
I
270 SUPREME COURT REPORTS [1994) 2 S.C.R ..

A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
?i67/92 With Cr!. A. No. 368 of 1992.

From the Judgment and Order dated 24.4.92 of the Patna High Court
in Death Reference No. 1/91 with Crl. A No. 186 of 1991.
B Raju Goburdhan for D. Goburhan for the Appellants.

U day Sinha and B.B. Singh for the Respondent.

The Judgment of the Court was delivered by
c FAIZAN UDDIN, J. The judgment delivered in this appeal will also
govern the disposiil of Crinmal Appeal No. 368/92 which is an appeal
preferred through Jail Superintendent by the same convicts against the
same judgment which is under challenge in Criminal Appeal No. ?i67/92.

D · The appellants No. 2 and 3, namely, Mulo Maril< and Bansi Maril<
are sons of appellant No. 1, Arjun Marik. The three appellants were
charged and tried for murders of Sitaram, his wife Smt. Kamakhya Devi
and their grand-daughter Sugwa Kumari in their house situated at
Chaitanya Nath, Jajware Path, Deoghar within the jurisdiction of Police
E Station Deoghar (State of Bihar), in the intervening night of 19th and 20
July, 1985. It was alleged that the appellants after committing murders of
three persons named above committed the robbery of the ornaments, cash
and other belongings of the deceased which during the course of investiga-
tion were seized from their possession from their house on 20th July, 1985.
The appellants were, therefore, charged and tried under Sections 302, 394
F and 411 of the Penal Code. Learned Additional Sessions Judge, Deoghar
convicted the three appellants under Section 302 of the Penal Code and
sentenced them to death. The appellants were also convicted under Sec-
tions 394 and 411 of the l.P.C. for which they were sentenced to suffer
rigorous imprisonment for 10 years and 3 years respectively. The substan-
.t'G tive sentence awarded under Sections 394 and 311 were directed to run
conGurrently. After the .conviction and sentence of death the learned
Additional Sessions Judge made a reference to the High Court for confir-
mation of the death sentence. At the same time the appellants also chal-
lenged their conviction and sentence in an appeal before the High Court.
H The Criminal Appeal preferred by the appellants was dismi~.s~d whereas
ARJUNMARIK v.STATEOFBIHAR [FAIZANUDDIN,J.) 271

the sentence of death awarded by the learned Additional Sessions Judge A
was confirmed by the High Court. On Special leave being granted, the
three appellants named above have preferred this appeal.

The prosecution case as it emerges from a Furd-beyan..Exb. 3 made
by the informant, Surnath Jha, PW 6 one of the nephews of the deceased B
Sitaram is that deceased Sitaram and his deceased wife, Kamakhya Devi
were issueless and, therefore, they had kept with them their grand-daughter
deceased Kumari Sugwa. The deceased Sitaram was carrying money lend-
ing business and amongst others had advanced loan to the appellant, Arjun
marik. On 19.7.85 between 7 and 8 PM. the appellant Arjun Marik accom-
panied with his two sons the appellant Nos. 2 and 3, namely, Bansi Marik C
and Mulo Marik came to the house of Sitaram to raise further loan to
purchase buffaloes. The deceased Sitram was not agreeable to advance him
further loan as he had advanced him Rs.10,000 about two months back for
purchasing the buffaloes. Sitaram, therefore, insisted upon the appellant
Arjun Marik to settle the old accounts first. But Arjun Marik continued to D
pursuade him to advance the loan on which Sitaram told him that his
accounts would be settled next morning. It is said that the three appellants
stayed at the house of the deceased Sitaram and the deceased ·~umari
Sugwa served them meals in the night. The three appellants were lodged
in a room on the upper story of the house for the over-night stay while
Sitaram slept on cot in the varandah adjacent to the said room. The E
deceased Kamakhya Devi, wife of Sitaram and his grand-daughter, Kumari
Sugwa slept in the Varandah on the ground floor. Thereafter, the informant
Surnath Jha, PW 6 went away to own house situated just adjacent to the
house of Sitaram.
F
Next day early morning at about 6 AM when Kumari Manju Devi,
PW 7 and some other girls went to the house of Sitaram to fetch water
from the water tap they witnessed Smt Kamakhya Devi and Kumari Sugwa
lying dead in a pool of blood and, therefore, they raised and alarm
attracting Murlidhar Jha, PWl, Govind Charan Jha, PW 2, Shushil Prasad G
Jha, PW 4, Surnath Jha, PW 6 and Mangla Charan Jha. They also found
the dead bodies of Kamakhya Devi and Sugwa lying there. Then they went
up to the. first floor and found that Sitaram was also lying dead and the
three appellants were found absent from the house. The witnesses also
found that the lock of the room on the ground floor and the lock of the
box inside the room were found broken and articles were lying scattered. H
272 SUPREME COURT REPORTS [1994] 2 S.C.R.

A Some valuable articles, ornaments and currency notes worth about ~
Rs.14,000 and some clothes and papers were found missing. In the mean-
while the Police of the Police Station, Deoghar received intimation of the
incident and, therefore, Doman Razak, PW 10 the Officer Incharge of
Deoghar Police Station arrived at the place of occurrence and recorded
Furd-beyan, Exh. 3 of Surnath Jha at about 8 AM on 20.7.85 at the place
B of oceurrence itself.

Since Surnath Jha, PW 6 in fard-beyan, Exh. 3 had stated the
presence of the appellants at the house of the deceased who had over- '
stayed there on the night of occurrence and were alleged to be missing
from the house and, therefore, on 29.7.85 at about 3 PM the Police
C Inspector, Doman Razak raided the house of the appellant, Arjun Marik
situated in village Bara within the jurisdiction of Police Station, Mohanpur,
District Deoghar. During the raid it is said that Arjun Marik made his
escape good from his house but then the appellant Nos. 2 and 3, namely,
Bansi and Muto were arrested and during the course of interrogation they
D are asid to have produced a plastic bag containing the stolen ornaments,
currency notes and other belongings said to have been stolen from the
house of the deceased Sitararn. The said articles were seized a' per Seizure "
Memo, Exh. 5.

The articles and currency notes seized from the house of Arjun
E Marik were put to Test Identification held by Upendra Sharma, PW 11,
Circle Officer,Deoghar on 29.8.85 in which the said ornaments, articles and
currency notes are said to have ben correctly identified by Murlidhar Jha,
PW 1 and Surnath Jha, PW 6, the two nephews of the deceased, to be the
articles and cash belonging to the deceased Sitararn and stolen from the
house of Sitaram.
F ,,..
At the trial the three appellants adjured their guilt and pleaded to
be tried. They took the plea that they were falsely implicated and the
articles seized from the house of the appellant, Arjun Marik belonged to
him alone and in support of their plea the appellants adduced evidence in
G their defence.

After evaluating the circumstantial evidence adduced by the prosecu-
tion the learned Additional Sessions Judge recorded the finding that the
chain of circumstances was complete which established the guilt against the 1
three appellants and, therefore, convicted them as said above. While
H awarding the death sentence the learned Additional Sessions Judge was of
ARJUNMARIK v. STATEOFBIHAR [FAIZANUDDIN,J.) 273

the view that the appellants committed the three murders undera pre· A
arranged and well thought plan and such a cold blooded murder fell within
the category of rarest of the rare cases in which there can be no place for
mercy. In appeal the High Court agreed with the view taken by the learned
Trial Judge and recorded its own findings that the circum8tances whi.cli are
cogently established and proved against the appellants are that the appel· B
!ant Arjun Marik enjoyed the confidence of the deceased Sitararn; the
three appellants had arrived at the house of Sitararn on 19.7.85 at about
8 PM to raise another loan from him; and the three appellants stayed in a
room of the house of the deceased Sitararn for the night adjacent to the
varandah where dead body of Sitararn was found next morning; the appel·
!ants were found absent from the house of occurrence next morning when C
murders of Sitararn, Kamakhya Devi and Sugwa were detected by the
witneses; on 20.7.85 at about 5 or 5.30 AM appellant Arjun Marik was seen
in his village by Ratan Kumar, PW 8, returning with a bag in his hand from
Deoghar; duting the raid of appellant's house on 20.7.85 at about 3 Pm by
the Investigating Officer, Doman Razak, PW 10, the appellants Bansi and D
Mulo produced the stolen articles which were identified by the witnesses
and that the appellants made a false claim that the seized articles belonged
to them. On these findings the High Court rejected the appellants appeal
and affirmed the conviction of the appellants and allowed the reference
by confirming the death sentence against which tnese two appeals have
been preferred. E

There is no dispute that Sitararn Jha, his wife Smt. Kamakhya and
their grand-daughter, Kumari Sugwa all died homicidal deaths. Dr.
Narendra Narayan Das, PW 9 performed an autopsy over their dead bodies
and stated that the injuries found on their person were anit-mortem and F
that they died homicidal death.

Learned counsel for the appellants. first contended that tbe motive
for the crime is said to be the agreed for wealth and reluctance of deceased
Sitararn to advance fruther loan to the appellant, Arjun Marik but in fact
there is no record either to suggest that the deceased Sitararn was carrying G
on· money lending buisness or that the appellant Arjun Marik was indebted
to him or ever took any sums on loan from the deceased. In this connection
it may first be pointed out that mere absence of proof of motive for
commission of a crime cannot be a ground to presume the innocence of
an accused if the involvement of the accused is otherwise established. But H
l
274 SUPREME COURT REPORTS [1994) 2 S.C.R.

A it has to be remembered that in incidents in which only evidence available ...
is circumstantial evidence then in that event the motive does assume '
S'-
importance if it is estalished from the evidence on record that the accused
had a strong motive and also an opportunity to commit the crime and the
established circumstances alongwith. the explanation of the acccused, if any,
B exclude the reasonable possibility of any one else being the perpetrator of
tlie crime then the chain of evidence may be considered to show that within
all human probability the crime must have been committed by the accused.

In the present case the prosecution in order to prove money lending
business of Sitaram has adduced the evidence of Murlidhar Jha. PW 1,
C Gobind Charan Jha, PW 2, Susbil Prasad Jha, PW 4 and Surnatb Jha, PW
6, who are all nephews of the deceased Sitaram. Murlidbar Jha, PW 1 made
a bald staiement in para 7 of his deposition that deceased Sitaram was
doing money lending business and bad lent more than Rs. one lac but at
the same time he admitted that be had no knowledge if the deceased
D Sitaram bad money lending licence or not and that be had never seen any
Bahi-khata with him for lending the money. He deposed that at the time
of death of Sitaram, Bhutka Marik, Mina, Mahabir Shah, Mural Panda and
others were his debators but he cannot say how much loan was advanced
to these persons. Similarly Surnatb Jha, PW 6 in para No.9 deposed that
deceased Sitaram had a money lendng licence of Rs. 5,000 but his Mahajani
E business was of about Rs. one lac. He further stated that at the time of bis
death be had advanced loans to the tune of Rs. 70 to 80 thousand and apart
from· the accused, one Mudal Jba, Mahabir Shah, Bankey Shah etc. were
his debtors but surprisingly enough non of these persons were examined to
show that Sitaram was doing money leanding business. Not only this by
F Surnath Jba, PW 6 goes to the extent to say that deceased Sitaram used to
keep Bahi-khata and some times advanced loan on written hand nots but
neither any hand notes nor Bahi-kbata said to have been maintained by the
deceased were produced to establish the fact that he was carrying on
money lending business. As regards the evidence of Gobind Charan Jha,
PW 2 on this point he simply made a bald statement that Sitaram had
G advanced about more than 50,000/- rupees on interest but did not give any
details as to whom the sums were advanced and to what extent.

Sushi! Prasad, PW 4, is yet another witness who deposed that the
appellant Arjun Marik was on visiting terms with deceased Sitaram since
H about 30 years and used to borrow money from him. He also deposd that
ARJUNMARIK v.STATEOFBIHAR (FAIZANUDDIN,J.J 275

about one and a half month prior to he_ occurrence Sitaram had advanced A
--- 10,000/- rupees to the appellant Arjun Maril< for purchasing iwo buffaloes
and at that time two traders were also there with Arjun Maril< from whom
Arjun Maril< had purchased the two buffaloes and each of them was paid
Rs. 5,000 by Arjun Marik. But this statement made in the Court is clearly
an improvement from his police statement recorded by Investigating Of- B
ficer, Doman Razak, PW 10 who made a categorical statement that Sushi!
Prasad, PW 4 had not stated· that the appellant Arjun Maril< was visiting
the place of Sitaram for the last 30 years and used to take money from him
on loan. He also deposed that Sushil Prasad, PW 4 did not disclose to him
that one and a half month before the ocurrence Sitaram had advanced Rs.
10,000 to the appellant, Arjun Maril< for purchasing two buffaloes and that C
Arjun Marik had paid Rs. 5,000 to each of the two traders who were
present there with Arjun Maril<. Thus, from the evidence discussed above
it is difficult to conclude that the deceased Sitaram was carrying on money
lending business and the appellant Arjun Maril< used to take loan from
him. It is, therefore, not possible for this Court to hold that the appellant D
could have entertained any idea or motive to do away with the deceased
' Sitaram with a view to wash off the alleged loans against him.
Learned counsel for the appellants next contended that all the
material prosecution witnesses are the close relatives of the deceaed
Sitaram being his nephews and they are highly interested witnesses and E
therefore, their evidence should not be accepted in proof of various cir-
cumstances with regard to the alleged commission of offence by the
appellants. In this connection we may point out that mere relationship of
the witnesses cannot be the sole basis to discard the evidence ·if it is
otherwise found to be believable and trust-worthy. However, when the
Court has to appreciate the evidence of any interested witnesses it has to F
be very careful in weighing their evidence. In other words the evidence of
an interested witness requires greater care and caution while scrutinising
his evidence. The Court has to address to itself whether there are any
II infirmities in the evidence of such_ a witness; whether the evidence is
reliable and trust-worthy and whether the genesis of the crime unfolded by G
such evidence is probable or not. If the evidenced of any interested witness ·
or a relative on a careful scrutiny is found to be consistent and trust-wor-
) thy, free from infirmities of any embelishment there is no reason not to
olace reliance on the same.
H
'
276 SUPREME COURT REPORTS [1994] 2 S.C.R.

A In Masalti v. State on U.P., AIR (1965) SC 202 it was observed that
it is perfectly true that in a murder trial when an accused person stands
charged with the commission of an offence punishable under Section 302,
he stands the risk of being subjected to the highest penalty prescribed by
the IPC; and naturally judicial approach in dealing with such cases has to
be cautious, circumspect and caeful. In dealing with such appeals or
B reference proceedings where the question of confirming a death sentence .
is involved the Court has to deal with the matter carefully and to examine
all relevant and material circumstances before upholding the conviction
and confirming the sentence of death.

C We are also aware of the fact that as a rule of practice, in appeal
against conviction for offence of murder Supreme Court is slovi to disturb
a concurrent finding of fact unless it is shown that the finding is manifestly
erroneous, clearly unreasonable, unjust or illegal or violative of some
fundamental rule of procedure or natural justice. Further it has also to be
D remembered that in a murder case which is cruel and revolting it becomes
all the more necessary for the CQurt to scrutinise the evidence with more
than ordirary care lest the chocking nature of the crime might induct
instinctive reaction against a dispassionate judicial scrutiny of the evidence
in law.

E It is true that in the present case the material witnesses are all
relatives of the deceased and, therefore, having regard to the rule of
caution we shall scrutinize their evidence with greater care and caution.

Learned counsel for the appellants then contended that the Fard-
F beyan Eict.-3 made by Surnath Jha, PW 6 and the FIR said to have been
recorded on that basis have not been lodged/reco•ded at the time and hour
mentioned in the Fard-beyan and FIR but much later and in any case after
due deliberations and specially after the raid of the house, arrest of the
appellants Mulo and Bansi and seizure of the articles from their house
ll
belonging to the appellants themselves and that the same are fabricated
G piece of evidence. Learned counsel for the appellants drew support to the
aforesaid argument from the fact that even though the Investigating Of-
ficer, Doman Razak, PW 10 had received information of the crime in early
morning of 20-7-85 for which he had made an entry in Roznamcha Sanha
yet the same was suppressed and not produced in the Court as it did not
H indicate the presence of the appellants in the house of Sitaram on the night
ARJUNMARIK v.STATEOFBIHAR [FAIZANUDDIN,J.] 277

of occurrence and even no doubt against the appellants was expressed, A
therefore, the Investigating Officer preferred to obtain Fard-beyan at a
later stage after raid and seizure of articles implicating the appellants
falesly. He submitted that his argument further find support from the fact
that the FIR was not sent to the Magistrate concerned forthwith as re-
quired by Section 157 of the Code of Criminal Procedure but it is said to
have been despatched after considerable delay on 22-7-85 and that too
B
through a special messenger without disclosing the name of that messenger
.. and without putting on record the material to show that the said Fard-
beyan/FIR was received by the Magistrate concerned or not even on
22-7-85. Learned counsel or the appellants submitted that Fard-beyan
contained exactly the same articles with the same details and description C
as are given in the Seizure Memo of the articles Ext.-5 seized from the
house of the appellants clearly indicating that Fard-beyan recorded only
after the seizure of articles on 20-7-85 after 3.00 PM and these facts and
circumstances cast a serious doubt in the prosecution case and render the
prosecution story false and fabricated.
D
In order .to appreciate the afore-mentioned contentions advanced by
the learned_ counsel for the appellants we shall now minutely and closely
scrutinise the prosecution evidence on the points referred to above.

Manju Devi, PW 7 is a witness who resided near the house of the E
deceased and related to the deceased. Her daily routine was to fetch water
early morning from a tap installed in the a courtyard of the house of
Sitaram. She and some other girls of the locality who had accompanied her
to fetch water on the day of occurrence were the first to witness the dead
bodies of Smt. Kamakhya Devi and Kumari Sugwa in the varandah of the F
ground floor and, therefore, raised an alarm attracting several witnesses
including Murlidhar Jha, PW 1 and Surnath Jha, PW 6 amongst others.
Murlidhar Jha, PW 1 deposed in para 13 of his deposition that when he
saw the dead bodies at about 5.00 - 5.30 AM entertained a doubt on the
appellants at that very moment. He goes on to state in the same para that
the Police Station was at a distance of about 400-500 yards from the place· G
of occurrence and Surnath Jha, PW 6 had gone to the Police Station at
about 7 O' clock in the morning and that prior to that no information had
been lodged with the Police Station. Thereafter, the Police Inspector
arrived at the place of occurrence at about 7.30 AM and after about 20
minutes this witness left the place of occurrence. Gobind Charan Jha, PW H
!

278 SUPREME COURT REPORTS [1994] 2 S.C.R.

A 2 another nephew of the deceased also deposed in para 9 of his deposition
that Sumath Jha, PW 6 was going to the Police Station. Sumath Jha, PW
6 who is said to have given Fard-beyan to the Police Inspector at the place
of occurrence on 20-7-85 at about 8.00 AM himself deposed in para 1 of
his deposition that having seen the three murders, broken lock and articles
B scattered in the room he thought it necessary to inform the Police and then
he went to inform the Police about this occurrence.

Now coming to the evidence of the Investigation Officer, Doman •
Razak, PW 10 we find that he deposed in para 3 that on 20-7-85 at about
7.00 AM he heard that two-three persons have been murdered near the
C Dharamshala and on hering this rumour he recorded Station Diary Sanha
No.349 on 20-7-85 in the Dairy of the Police Station and then along with
Sub-Inspectors K.N. Singh and R. Singh and some Police Constables went
to the house of Sitaram where he recorded Fard-beyan of the informant,
Sumath Jha, PW 6. This, in our opinion, is totally a made up and un-
D founded story and is not free from serious doubt for the reasons which we
shall record hereinafter.
,•
There is positive evidence that when the girl Manju Devi, PW 7 saw
the dead bodies raised an alarm and immediately thereafter three-four
nephews of the deceased arrived at the place of occurrence in the early
E morning at about 5.30 AM.

As seen above the Police Station was at a distance of only 400- 500
yards from the place of occurrence. The evidence discussed above also
goes to show that Sumath Jha had gone to the Police Staion. It is, therefore,
F quite improbable that Sumath Jha having gone to the Police Station would
not have lodged the report there and would have preferred to come back
to the place of occurrence to make Fard-beyan later at 8.00 AM. The
Police Inspector, Doman Razak, PW 10 admits that the bad received the
intimation about the three murders and that he had recorded the same in
the Roznamcha Sanha but has not produced the said entry of the Roznam-
G cha Sanha which further deepens the doubt for which adverse inference in
the natural consequence.Further a perusal of evidence of Anil Kumar Jha,
PW 3 who is a witness of the Inquest Reports which were prepared at the
place of occurrence on 20-7-85 between 9.00 and 9.30 AM and that in all
the three Inquest Reports "P.S. Case No. 112/85 dated 20-7-85" was written.
H It shows that the Police Inspector had registered the offence in the Police
ARJUNMARIK v.STATEOFBIHAR (FAIZANUDDIN,J.] 279

Station on the basis of the information received about the crime before A
leaving for the place of occurrence otherwise there was no question of
recording the case No. on the Inquest Reports. It appears that the Sanha
report was purposely not produced in the Court as it did not reflect any
doubt on the appellants to be the perpetrators of the crime and it was at
a later stage after deliberations that it was found that the appellants were
B
the frequent visitors to the house of Sitaram and used to take loan from
him and, therefore, on the basis of doubt the house of appellants was
raided at 3.00 PM on 20-7-85 and after having effected seizure of articles
from that house, Fard-beyan, Ext3 was obtained from Surnath Jha, PW 6
in which doubt was expressed on the appellants. This is one part of the
suspicious story of the prosecution case. c
If we look to the evidence regarding raid and seizure that again is
not free from doubt. It may be pointed out that the raid was conducted in
a clandestine manner by the Investigating Officer, Doman Razak, PW 10.
He stated that he along with the two Sub-Inspectors, Thakur and D.N. D
Paswan, Hawaldar Aftab Khan and four armed Constables went to the
> house of the accused in village Bara within the jurisdiction of the Police
Station, Mohanpur for pusposes of arresting the accused and raid their
house. He arrested the appellants, Bansi and Mulo Marik but the apellant
Arjun Marik is said to have ran away and strangely enough the police party
could not chase and apprehend him. .In the course of enquiry the two E
arrested appellants are said to have produced the ornaments and cash kept
in a concealed plastic bag in the house. The Inspector compared the
articles mentioned in FIR and then seized them under Seizure Memo Ext.
5. He took the signature of the accused/appellants Bansi Maril< and Mulo
Marik as witnesses to the seizure because according to the Police lnspec- F
tor, Doman, no person of the village was ready to stand as a witness to the
seizure. It is surprising to note that he was unable to give out the names
of any of the villagers who had declined to stand as a witness to the seizure.
He made no effort to take any other witness from the nearby village which
are very closely situated. Not only this the Inspector Doman did not even G
inform or took into confidence the Station House Officerof the Police
Station, Mohanpur within whose jurisdiction the house of the appellants
was situated. The most surprising part of the seizure of articles from the
house of the appellants is the fact that they are exactly of the same number,
description and details as are mentioned in Fard-beyan Ext. P-3 and the
FIR which was recorded on the basis of Fard-beyan. Even the weight of H
'
280 SUPREME COURT REPORTS (1994] 2 S.C.R.

A the ornaments and the cash seized from the house of the appellants tally (
with the weight mentioned in Fard-beyan and the FIR, although Surnath
Jha, PW 6 who gave Fard-beyin mentioning the details of the stolen
articles and cash stated that he had never counted the money of his uncle
nor touched it. He had simply seen the money in te box about two months
prior to the occurrence and at that time there were 14,000 rupees in the
B box. Surnath Jha, also deposed in para 20 of bis deposition that he had
never weighed the ornaments of her aunt and he had mentioned the weight
in Fard-beyan as deceased aunt had told him the weight of ornaments. It
is difficult to believe such a statement that the deceased will tell the weight
of ornaments possessed by her and Surnath Jha wants us to believe that he
C rememberd the weight of all these ornaments with the minutest details.
This part of the story clearly gives an impression that neither Fard-beyan
nor FIR were recorded till the police raided the house of the appellant,
seized the articles at 3.00 PM and thereafter on the basis of the description
of the articles seized, Fard-beyan and FIR were recorded. That may also
D explain as to why Bansi Marik and ·Mulo Marik were made the attesting
witness. Probably they had not been named a~ accused till then. Thus, after
a careful and close scrutiny with necessary caution and circumspection of '
the relevant evidence and material circumstances, we are of the view that
the Trial Court as well as the High Court, both, ignoring the impact of all
the inherent improbilities and infirmities which are pointed by us in the
E foregoing faras, recorded the finding of guilt against the appellants which
is manifestly erroneous and unreasonable.

The matter does not stop here. There is yet another serious infirmity
which further deepens the suspicion and casts cloud on the credibility of
the entire prosecution story and which has also been lost sight of by the
F Trial Court as well as the High Court and it is with regard to the sending
of occurrence report (FIR) to the Magistrate concerned on 22 7.85 i.e. on
the 3rd day of the occurrence. Section 157 of the Code of Criminal
Procedure mandates that if, from information received or otherwise, an
Officer-in-charge of Police Station has reason to suspect the commission
G of an offence which he is empowered under Section 156 to investigate, he
shall forthwith send a report of the same to the Magistrate empower to
take cognizance of such offence upon a police report. Section 157, Cr. P .C.
thus in other words directs the sending of the report forthwith i.e. without
any de.lay and immediately. Further, Section 159, Cr. P.C. envisages that
H
ARJUNMARIK v.STATEOFBIHAR [FAIZANUDDIN,J.) 281

1 on receiving such report, the Magistrate may direct an investigation or, if A
he thinks fit, to proceed at once or depute any other Magistrate subor-
dinate to him to proceed to hold a preliminary inquiry into the case in the
manner provided in the Coue of Criminal Procednre. The forwarding of
the occurrence report is inclispensabl e and absolute and it has to be
forwarded with earliest despatch which intention is implicit with the use of B
the word "forthwith" occnring in section 157, which means promptly and
without any undue delay. The purpose and object is so obvious which is
' spelt out from the combined reading of Sections 157 and 159 Cr. P.C. It
has the dual pnrpose, firstly to avoid the possibility of improvement in the
prosecution story and introduction of any distorted version by deliberations C
and consultation and secondly to enable the Magistrate concerned. to have
a watch in the progress of the investigation.

But in the present case, admittedly, the report as alleged is said to
have been despatched to the Magistrate concerned on 22.7.85 by a special
messenger vide Ext. 2. It is, thus, clear that the report was not sent D
> forthwith, in other words immediately and without delay as the incident
had occurred in the intervening night of 19/20.7.85 and according to
Doman, PW 10 the Officer-incharge of the Police Station, the FIR was
already recorded in the morning of 20.7.85. If in fact the FIR was already
recorded in the morning of 20.7.85 there was no reason not to despatch E
the same to the Magistrate concerned till 22.7.85. Though there is no
material on record to show as to why delayed report was sent to the
Magistrate on 22.7.85 but the learned counsel appearing for the respon-
dent-State submitted at the Bar that the Investigating Officer remained
busy in the investigation on 20.7. 85 which was Saturday and since 21.7.85
- was Sunday the report was sent on a Monday, the 22.7.85. He submitted F
that in Bihar State even in mnrder cases FIR is never sent to the residence
of a Magistrate on Sundays and holidays. If that be so, we are afraid such
a practice can never be said to be healthy practice which renders the
mandatory provision nugatory. If such a practice is prevalent it must be
deprecated and it is high time that !he authorities concerned should woke G
up and see that the provisions of Section 157 Cr. P.C. are complied with
in letter and spirit.

Even if we ignore the question of delay there is no rnaterial on record
to show that it was actually despatched and received by the Magistrate H
'
282 SUPREME COURT REPORTS

A concerned and if so on what date and time. A mere note in the FIR it self y
that report was despatched by special massenger is not enough. Tllete is
no mention as to which Magistrate it was despatghcd, The evitlence ot
Investigating Officer is totally silent about lt. It is true that quite often
there are valid reasons for the delay in the despatch of the First Informa-
tion Report and it is not always a circumstance 11n tM \iru;is tif which the
B entire prosecution case may be said to be fabtieated, but it all depends on
the facts and circumstances of each case where the circumstance of delay
may lead to serious consequences. But in the present til5a us discussed ,
above there are other circumstances discussed which cast a serious cloud
on the proscecution case and this circumstance of d~l1ty In the FIR still
C hardens the suspicion and leads to the dellultu co11eluslon that Fard-beyan
and FIR both were recorded much latef ill point of time that! the one as
shown in the said documents and in any case in our considered opinion
after the appellant's house was raided and sgizure of the articles was
effected.
D
This brings us to the evidonGe tegatdlflg the identification of the
artitles seized from the house of the appeilant which is also not free from <
doubt. The articles were seized on 20.7.85 but they were put to Test
Identification on 29.7.85. Nil teasUil for this delay is forth-comin~. The
prosecution approached Upendra Sharma who at the relevant time was
E Circle Officer, Deoghar. The articles are said to have been identified by
Murlidhar Jha, PW 1 and Surnath Jha PW 6. The most surprising part of
their evidence is that they go even to the length of identifying the currency
notes which are said to have been stolen from the house of the deceased
Sitaram. It is beyond comprehansion as to how the currency notes could
F be identified by these witnesses. It may be pointed out here that all the ~
articles said to have been seized from the house of the appellants are
claimed by the appellant No. 1, Arjun Marik as belonging to him and in
support of his claim he has adduced evidence. The defence witness No. 2
is M.D. Mahto who is a cultivator of villager Bara where the appellants
G also reside. He deposed that the appellant Arjun Marik is a well to do
person having about 150 to 200 Bighas of land and owns about 40 to 50
cows and 15 to 16 buffaloes. The defence witness No. 3 is one Sahdeo Raul,
resident of the same village Bara and know the family of appellant, Arjun
Marik fully well. He also corroborated the statement of OW 1. The defence {
witness No. 4 is one Surya Narayan Poddar, resident of village Kasai which
H is one and a half kilometer away from village Bara to which the appellants
AIVUNMARIK v. STATEOFBIHAR IFAIZANUDDIN,J.] 283

.., belong. DW 4 is a Goldsmith by profession. He stated that appellant Arjun A
Marilc is known to him and he identified him in the Court. The witness
deposed Arjun Marilc has many catties and procuced 300 maunds of paddy.
Ho further deposed that about 7-8 years back he had gone to the house of
Arjun Marik to clean his ornaments and 5tated that he had cleaned one
gold necklece, one nath,a silver hansuli, three pairs of Mathias, two pairs B
of silver kara, one pair of silver payal, karanphool and balpatra. This
evidence was led to show that the appellant No. 1 was a man of means and
~ status and he would have hardly resorted to such a criminal act as has been
alleged against him.

Learned counsel for the appellants lastly contended that there is no C
convincing evidence to establish that these three appellants had ap-
proached the deceased Sitaram in the evening preceding the night of
occurrence and that there was huge gathering in the nearby temples and
dharamshalas in the night of occurrence where hundreds of persons con-
tinued coming and going there and as the doors of the house of the D
deceased were open during the night and as the entrance on the ground
> floor of the house of the deceased remained open in the night some one
may have entered the house, committed the crime and escaped with the
belongings of the deceased and the appellants were implicated falsely on
the basis of misplaced doubt. He further submitted that in fact the as-
sailants were not known and, therefore, report to that effect without E
naming any one as culprit was lodged at the police station, Deoghar io
which even the suspicion about the involvement of the appellants was not
expressed and, therefore, that report was suppressed and, later on even
when the Police Inspector, Doman Razak, PW 10 arrived at the place of
occurrence the culprits wore not known. It was at this stage that the
~ speculations and deliberations as to who could be the miscreants who may F
have committed the crime, were thought of and merely on basis of
misplaced doubts the house of the appellant was raided during which the
articles belonging to the appellants were seized. So far as the manner io
which the report was lodged the reliability of the raid and seizure of the
articles is concerned we have already dealt with the same io the earlier
paras. As regards tl.e question of the reliablity of the evidence with regard G
to the visit of the .1ppellants to the house of the deceased and their stay
during the night of occurrence is concerned we shall examine the evidence
in that behalf.

Murlidhar Jha, PW 1 is the first person who claims to have first seen H
284 SUPREME COURT REPORTS [1994] 2 S.C.R.

A the appellant on 19.7.85 at about 8.00 PM going to the house of the
deceased Sitarani. Murlidhar stated that he was coming to the main road
through the lane of his house and on seeing Arjun Marik and his two sons
asked them as to where they were going, to which Arjun Marik replied that
he was going to Surnath .Iha for taking money from him. But if we look to
the statement of Investigating Officer, Doman Razak, PW 10 recorded the
B police statement of this witness, we find that Murlidhar Jha, PW 1 never
made such a statement to the police vide paragraph 24 of Doman, PW 10,
not only this but it may be also pointed out that in his long statement ,
Murlidhar does not anywhere disclose that at or about the said point of
time when he saw the appellants in the lane, the witness Sushi! Prasad, PW
C 4 had also arrived there. Whereas Sushi! Prasad, PW 4 deposerl in para 2
that on 19.7.85 at about 8 in the evening when he was going through the
lane in front of the house of deceased Sitaram, he saw Murlidhar Jha, PW
1 coming out of the lane on the road and Arjun Marik with two people
entering inside the door of Surnath Jha.. Ar.iun Marik greeted him and
D Sushi! Prasad blessed him and Arjun Marik told him that the other two
were his sons. When sushi! asked him as to why they did not go to their
house that night, Arjun Maril< replied that he had to settle his accounts ~
with his Malik (meaning deceased Sitaram). Thi> statement does not ap-
pear to be trustworthy at all for three reasons. Firstly, as if the appellants
were only waiting for the arrival of this witness to come and see them
E entering the house of Sitaram, If Sushi! Prasad saw them entering the door
of Sitarani there was no occasion for Murlidhar, PW 1 or meet of talk to
them. Sushi! does not depose that Murlidhar had a dialogue with Arjun
Marik as deposed by him. According to Murlidhar the appellant, Arjun
had come to take further advance and not for settlement of any accounts.
It was the deceased who was insisting for settlement of accounts first. ·
F
Therefore, at that point of time when the appellants are said to be entering
the house the question of settlement of account did not arise. Lastly the
statement given by Sushi! as stated above was not stated by him in his police
statement, Vide para 25 of the statement of the Investigating Officer,
Doman, PW 10. Then comes Surnath Jha, PW 6 who deposed that the
G three appellants had stayed at the house of their uncle on the night of
occurrence to whom food was served by deceased Sugwa and that he left
for his house when the appellant and his uncle had slept in the upper storey
and his aunt and niece Sugwa had slept in the varandah of the ground floor. ~r
But in cross-examination - para 23 he stated that when he left for his house
H
'
ARJUNMARIK v.STATEOFBIHAR [FAIZANUDD!N,J.] 285

neither the appellants nor any of the inmates of the house had slept. The A
evidence of this witness has not been found to be trust-worthy and consis-
tent on other counts also.

As discussed earlier it has already been found by us that the Fard-
beyan given by this witness which is shown to be given at 8 AM in fact
appears to have been given some times after 3.00 PM after the raid and B
seizure of the articles from the house of the appellants and therefore, it
would not be safe to rely on this part of his statement also without
corroboration which is not to be found. This brings us to the evidence of
Ratan Kumar Singh, PW 8, the last witness on this point who is said to
have seen the appellant, Arjun Marik at about 5-5.30 AM on 20.7.85 some C
where near Joria of his village Chhatami. He deposed that he met Arjun
Marik on the way with a white colour plastic bag and asked him as to where
from be was coming and Arjun Maril< told him that he was coming from
Deoghar and was having Kballi and Berun in the Bag. This witness is
resident of another village known as Chhatami and be is only a chance
witness. In cross-examination he admitted that his father was Mukhia of D
village Bara Panchayat prior to the occurrence and before that Bhagwan
Maril< the grand father of the appellant Arjun Marik was the Mukhia who
was defeated by his father in the election. This witness besides being a
chance witness, there is reason for him to depose against the appellants. If
at all the appellant had committed the crime at Deoghar as alleged, he
would be the last person to disclose to this witness Ratan Kumar that he E
was coming from Deoghar and thereby disclose his visit or presence at
Deoghar at or about the occurrence. This apart the crime is said to have
been committed by the appellant Arjun Marik and his two sons while at
that early hour of the day of occurrence the appellant Arjun Marik alone
is said to have been seen by PW 8. However, this evidence alone is neither F
here nor there.

Thus the evidence that the appellant had gone to Sitaram in the
evening of 19.7.85 and had stayed in the night at the house of deceasd
Sitaram is very shaky an<l inconclusive. Even if it is accepted that they were
there it would at best •mount to be the evidence of the appellants having G
been seen last together with the deceased. But it is settled law that the only
t circumstance of last setn will not complete the chain of circumstances to
record the finding that it is consistent only with the hypothesis of the guilt
of the accused and, therefore, no conviction on that basis alone can be
founded. H
J

286 SUPREME COURT REPORTS [1994] 2 S.C.R.

A While concluding we may point out that there is evidence that the
house of the temple of Baba Baidyanath and there are many Dharamshalas
and temples about 100 yards away from the house of the deceased. There
is also evidence that Deoghar is crowded in the month of Sharavan and
lacs of pilgrims come daily near about that area in that month. Police and
B Magistrates are also deputed on duty for 24 hours during that period.
There is also evidence that on the date of occurrence there were large
number of pilgrims coming and going in the temples and Dharamshalas.
Sumath Jha, PW, 1 in para 22 of his deposition stated that there were two •
doors in the house of the deceased, one toward the east and other towards
north opening on two different lanes. He also deposed that on the night of
C occurrence at the time when he went out of the house the door on the
north was closed while the door facing east was open and he did not know
whether that door was close or not. There is no evidence to show that the
said door was ever closed that night. Lacs of persons were coming and
going that night in the vicinity, the possibility could not be ruled out that
D anyone else entered the house at the dead of night, killed the inmates and
escaped with the belongings of the deceased. ~

Thus, on a conspectus of all the evidence on record, we are of the
firm opinion that the finding recorded by the Trial Court and High Court
holding the appellants guilty of the offences charged with is erroneous and
E unsustainable. The two Courts below did not advert to the inherent im-
probabilities in the prosecution evidence discussed by us and failed to
appreciate the evidence on record in right perspective having regard to the
infirmities pointed out by us in the foregoing paras and recorded the
finding of guilt against the appellants which is manifestly erroneous and
F unreasonable.

In the result the appeals are allowed. The judgments of the two
Courts below convicting the appellants under Sections 302, 394 and 411 of
the I.P.C. and imposing the sentence of death and other sentences therefor
are set aside and the appellants are acquitted of the offences charged with.
G The appellants be released forthwith if not required in any other offence.
The articles seized from the possession of the appellants as per Seizure
Memo Ext. P.5 be returned to the appellants. {

U.R. Appeals allowed.