JUDGMENT <NAME>, C.J.

1. The question for determination in these appeals is whether, in the circumstances to be presently stated, the plaintiffs, who were formerly co-sharer landlords with the defendants and others in Mauza Sawas Khurd, are entitled to a raiyati interest in certain lands in that village, they having purchased an occupancy holding from the tenants, many years ago before 1885, and having remained in possession thereof paying to their co-sharers their proportionate amount of the rent up to the year 1913, when they sold their proprietary interest to other co-sharers pending partition proceedings which were finally completed in 1918. Four suits in all were instituted, two by <NAME> whose father <NAME>, deceased, sometime before 1885 had purchased the raiyati jote in the lands now claimed by him, and two by <NAME>, who had himself purchased a similar raiyati jote at about the same time.

2. On partition of the mauza in 1918, the lands in question in each case were allotted to the takhtas of two other sets of co-sharers who are the defendants in the respective suits and who contend that the lands in question were the bakasht of all the co-sharers and that the tenancy interest of the plaintiffs came to an end on partition. As the lands claimed by each of the plaintiffs fell partly to the share of one set of co-sharers on partition and partly to the shara of another, each plaintiff brought two suits. The facts in each case are precisely similar and the cases were heard together in the trial Court, and in the lower <ORG>, and the further appeals to this Court have also been heard together. In referring to the plaintiffs and defendants the reference will be to each of them unless otherwise indicated.

3. The <NAME> of Jamui before whom the suits came for trial found in favour of the plaintiffs and passed a decree for possession in each case.

4. On appeal the Subordinate Judge of Monghyr agreed with the conclusions of the <ORG> and dismissed the appeals. The defendants have preferred these second appeals to this <ORG>.

5. The material facts found by the lower <ORG> are that some time before 1885, the ancestor of the plaintiffs in the one case and the plaintiff himself in the other purchased the raiyati jote of certain tenants, the purchaser being at that time co-sharer proprietors in the village. The plaintiffs, or their predecessors, remained in possession paying a proportionate part of the rent to their co-sharers from the date of the purchase until 1913, when a suit for partition was instituted before the Subordinate Judge of Monghyr by some of the co-sharers. The final partition was made in 1918, and separate possession of their interests was directed to be given to the respective co-sharers according to their takhtas. Before that date, however, namely, in 1913, shortly after the partition proceedings were instituted, the plaintiffs sold their proprietary interest to other co-sharers, who are not parties to this suit and whose names are immaterial. By the partition made in 1918, the lands in question were included in the takhtas of the defendants who endeavoured to obtain <ORG> possession but found the plaintiffs still in possession with the result that proceedings under Section 145 of the Criminal Procedure Code were instituted and, in January, 1922, terminated in favour of the defendants who dispossessed the plaintiffs.

6. When the plaintiffs transferred their proprietary interest to other co-sharers in 1913, by an agreement then come to between them and their transferees, they were permitted to remain in cultivating possession of the lands in suit as formerly, and they were not in fact dispossessed until 1922. It has been found as a fact in the Courts below that the lands were not the bakasht of the co-sharers originally but raiyati jote land acquired by the plaintiffs or their predecessors, and this is corroborated by the Record of Rights published in 1909 which, whilst describing the lands as bakasht of the plaintiffs or their predecessors, states that they were formerly an occupancy raiyati jote acquired by them as share-holding proprietors and gives the amount of rent which the other co-sharers were entitled to under Section 22(2) of the Bengal Tenancy Act. It was argued on behalf of the appellants that the plaintiffs having been parties to the partition suit originally were bound by the decision in that suit in But far as it treated the land as bakasht. But even if they are to be treated as parties to the partition suit, notwithstanding that they sold their proprietary interest shortly after the suit was instituted and ceased to be interested any longer as proprietors, still it has not been shown that there was any issue in the suit as to the nature of the land in question. In any case if the lands were treated as bakasht in the partition, the sense in which that term was used must be explained by reference to the Record of Rights on which the partition was founded, and this clearly shows that the lands were subject to the plaintiffs' possessory right under Section 22(2) of the Bengal Tenancy Act: see <CITATION> 65 Ind. Cas. 586 : 3 P.L.T. 13; A.I.R. 1922 Pat. 193. Moreover a new situation arose when the plaintiffs sold their proprietary interest to other co-sharers in 1913 and took a subordinate interest from them. It is not shown that they took any further part in the partition proceedings, and in their absence their successors could not by their action deprive them of the rights, if any, which they acquired at the time when they sold their proprietary interest, In my opinion <ORG> was right in holding that the lands were not the bakasht of the joint body of maliks but were originally a raiyati jote purchased by the plaintiffs or their predecessors and subject to the plaintiffs' right to hold the same on paying rent to their co-sharer and they did not by the partition cease to be lands of this nature.

7. The question then arises whether by the transfer of their proprietary interest to other co-sharers the plaintiffs lost their tenancy right in the land. If one regards the rights of the parties as governed by the Bengal Tenancy Act, as amended in 1907, then the interest of the plaintiffs, being a peculiar tenancy right of a co-proprietor, as pointed out in the judgment of <NAME>, J., in <CITATION> 89 Ind. Cas. 232 : 7 P.L.T. 87 : 3 Pat. L.R. 138; A.I.R. 1925 Pat. 547 would pass to the purchasers on transfer of the proprietary right. The purchasers, however, allowed the plaintiffs to remain in possession as cultivators by an arrangement come to at the time of the transfer. That transaction was, in my opinion, tantamount to a sub-lease within the meaning of Section 22(2) of the Bengal Tenancy Act and the plaintiffs thereupon became raiyats of the holding. Under the Act as it now exists merger of interest no doubt takes place where the entire interest of the raiyat and his immediate landlord, who is either a proprietor or a permanent tenure-holder, become united in the same person but it is quite different where the occupancy right of a tenant is transferred to a fractional proprietor. In the latter case, although no occupancy right can vest in the fractional proprietor, he still acquires a separate interest in the raiyati holding paying to his co-proprietors their share of the rent. This interest passes to his transferee with the transfer of the proprietary interest and the holder can sub-let the same to another who thereupon becomes a raiyat of the holding.

8. It is contended, however, that the Bengal Tenancy Act has no application to the present case as the interest of the plaintiffs was originally acquired before 1885 when the first Bengal Tenancy Act was passed, and that we must consider the law then existing. Even so I am clearly of opinion that the doctrine of merger had no application in Bengal in such a case under the old law before 1885: see <NAME> v. <NAME> (3); <NAME> v. <NAME> 25 W.R. 503 and <CITATION> 2 Ind. Cas. 654 : 13 C.W.N. 913 and in fact it is not disputed that the plaintiffs for many years, both before and after 1885, although co-proprietors, remained in possession of the holding on payment of proportionate rent to their co-owners. It is clear, therefore, that even if the occupancy right ceased to exist the holding did not merge in the larger interest. This is also in accordance with the decisions under the Act of 1885: see <CITATION> 21 C. 869 : 10 Ind. Dec. (N.S.) 1211; Jawaaul Hug v. <NAME> 24 C. 143 : 1 C.W.N. 166 : 12 Ind. Dec. (N.S.) 761 and <CITATION> 65 Ind. Cas. 281 : 3 P.L.T. 22; (1922) Pat. 55; A.L.R. 1822 Pat. 62. It follows then that if the interest acquired before 1885 did not merge it remained alive at all events up to 1913 when the plaintiffs sold their proprietary interest. I can see no reason why under the old law any more than under the present Bengal Tenancy Act this right should cease to exist because the co-sharer transfers his interest to another proprietor. It would pass, in my opinion, even before the Act of 1885 to the transferee of the (3) 10 w. R. 5. proprietary interest. Whether before the amending Act of 1907 the co-owner or his transferee could sever the interest by subletting to a tenant may be a question of some difficulty and no authority has been drawn to our attention on the subject but in my opinion, it is unnecessary to determine this point; for whatever may be said as to the retrospective effect of the first Sub-section of Section 22 , which limits the rights of a proprietor, the second sub-section, in so far as it refers to the rights of a sublessee which come into operation after the Act must, I think, apply to all cases where such a sub-lease is effected after the passing of the amending Act, whether the occupancy right was acquired before or after the passing of that Act, or the Act of 1885. The language of the sub-section seems to me to demand this construction. No vested rights are interfered with. The sub-section merely gives the holder of such a right power to sub-let his interest and defines the nature of the interest of the sub-lessee as that of a raiyat. The plaintiffs are, in my opinion, raiyats of the land claimed and were improperly dispossessed and should be restored to possession.

9. Whether the sub-lessee in such a case can acquire by twelve years' occupation an occupancy right it is unnecessary to determine. He is clearly not an under raiyat as he does not hold under a raiyat and there seems to be no reason why he should not in the course of time acquire an occupancy right. The point, however, does not arise for decision for such a right had not matured by twelve years' possession when the suit was instituted, and I prefer to reserve my decision on this point until the question arises.

10. In my opinion the conclusion arrived at by the lower Courts was right in the particular circumstances of the case and these appeals should be dismissed with costs to the contesting respondents together with interest at the usual rate.

<NAME>, <NAME>

11. I agree.


JUDGMENT <NAME>, J.

1. This is an appeal filed under Section 310-D of the Motor Vehicles Act, 1939, against the order of <ORG>, dismissing the application of <NAME> for the grant of compensation in respect of Injuries sustained by him on account of an accident, when he was travelling in a bus belonging to the Punjab Roadways.

2. it appears that on 5-12-1959 <NAME> got into this bus for going to Chandigarh, when it started from Amritsar at 5-30 A.M. At about 7-00 A.M., when this bus reached near the Military Camp at Sura Nassi, which is about 4 or 5 miles from Jullundur, a bullock-cart was coming from the opposite direction. A cyclist was following this bullock-cart and when he tried to overtake it, ha came in front of the bus. <NAME>, the driver of the bus, immediately applied the brakes in order to save the cyclist and since it was drizzling and the road was wet, the bus slipped and turned turtle with its face towards Amritsar side instead of Jullundur. As a result of this accident, the appellant's collar bone was fractured and his right arm was injured. <NAME> was taken to <ORG> at Jullundur and, on his request, was brought to <ORG>, Chandigarh, and was admitted there as an Indoor patient. He remained there till 10-12-1959. On 19-1-1960 he filed an application for compensation for Rs. 5,000/-before <ORG>, who framed the following issues :

1. Whether the accident was due to rash and negligent act of the driver of the Punjab Roadways?

2. What is the quantum of compensation due and from whom?

3. Relief.

3. After examining the evidence produced by the parties, the <ORG> came to the conclusion that <NAME>, the driver of the bus, was not to be blamed and the accident was not die to his rash or negligent driving. On issue No. 2, it was found that since the driver was not at fault, no compensation could be granted to the appellant. Consequently, the <ORG> dismissed the application for compensation.

4. The first question for decision in this case is whether the accident in the present case had occurred due to any rash or negligent act of the driver.

5. Both sides had produced a number of witnesses, including a few passengers, who were actually travelling in the bus on that day. I was taken through the entire evidence and am of the view that the finding given by the <ORG> on issue No. 1 is correct. (His Lordship then discussed the evidence and proceeded :) From the above evidence, I have no manner of doubt that the driver was not at fault. He was riot going at a high speed. In order to save the cyclist, who was overtaking the bullock-cart, which was coming from the opposite direction, the driver applied the brakes and turned the bus to the left side of the road. Since it was drizzling and the road had become wet, the bus slipped and got unbalanced. Its wheel came down to the low gradient portion adjoining the road and the bus turned turtle. This was an unfortunate accident, but it was not due to any rash or negligent act of the driver.

6. The next question for decision is whether, under these circumstances, the appellant, who was admittedly, travelling in the bus and got injured due to this accident, is entitled in law to. claim compensation for the Injuries received by him and from whom. Learned counsel for the appellant submitted that even if this accident was not due to any rash or negligent act of the driver, the appellant could recover compensation for the injuries sustained by him from the Insurance Company, with which this vehicle was insured against third party risk. But since this bus belonged to the, Punjab Roadways, which Is owned by the Punjab State, and was, therefore, not Insured, the appellant was entitled to get compensation out of the fund created by the Punjab State in accordance with the provisions of Section 94 (3) of the Motor Vehicles Act . For this submission, the placed his reliance, only on the provisions of Sec-Cons 94 and 95 of the Motor Vehicles Act .

7. I have gone through the provisions of Sections 94 and 95 of the Motor Vehicles Act, 1939. In my opinion, trey are of no assistance to the appellant. Section 04 makes insurance against third party risk compulsory, but in the case of vehicles, which are owned by <ORG>, the appropriate <ORG> is authorised to exempt them from this provision, if a fund is established and maintained by that <ORG> in accordance with the rules made in that behalf under the Motor Vehicles Act for meeting any liability arising out of the use of any vehicle of that <ORG>, which that <ORG> or any person in its employment may incur to third parties. Section 95 lays down the requirements of policies and limits of liability, which a policy of insurance must comply with. In para (ii) of the proviso to Sub-section (1) of Section 95 it is laid down that where the vehicle is a vehicle, in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, the policy of insurance is required to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event, out of which a claim arises. In sub-section (2) of Section 95 it is provided that subject to the proviso to sub-section (1), the policy of insurance shall cover any liability incurred in respect of any one accident up to the limits mentioned in that Sub-section. All that these two sub-sections lay down is that the <ORG>-owned vehicle has to be insured to cover liability in respect of third party risk and the policy of insurance shall cover any liability incurred in respect of any accident up to the limits prescribed in sub-section (2) of Section 95 . If the liability of <ORG> is determined, then the amount of compensation payable to a third party on that basis will be paid out of the fund created by <ORG> under the proviso to sub-section (3) of Section 94 . These sections do not lay down under what circumstances the liability of <ORG> will be fixed. The Insurer only incurs the liability of the assured and that also to the extent for which the vehicle is insured. Therefore, the third party has first of all to establish the liability of the assured and it is only then that it can recover the amount of compensation awarded against the assured from the insurer. If he is unable to prove his claim against the assured, then he cannot get any compensation from the insurer. The provisions of the Motor Vehicles Act have not, In any way, changed the general law under which compensation is claimed by one person from another. Under the Law of Torts, in order to get compensation from another person, it is necessary to prove that death or bodily injury was caused to the claimant by the rash or negligent act of the driver of the vehicle. If that is not proved, the claimant cannot get any compensation either from the driver or the owner of the vehicle and If no decree for compensation can be passed against the driver or the owner of the vehicle, then the insurer with whom the vehicle is Insured, is under no liability to pay any compensation to the claimant, because under Section 96 of the Motor Vehicles Act, the decree has to be obtained; against the assured and it is only then that the same can be executed against the Insurer.

8. A similar case came up for decision before <NAME>, j.

in <NAME> v. General Manager. The Punjab Roadways;

Ambala, 1962-64 Pun LR 448 : (AIR 1962 Punj 540), where-

in the learned Judge observed thus:

"Held, that Section 110-8 of the Motor Vehicles Act does hot in terms lay down, that it is only when negligence en the part of the driver of the vehicle concerned is established that compensation can be awarded, but then it should be borne in mind that this bunch of Sections (110 to 110-F) merely deal with the subject of the substitution of <ORG> in place of <ORG> for the purpose of adjudicating on claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles. They do not deal with the question as to who is to be held liable and in what circumstances, if any injury results from an accident Held also, that in order to discover the criterion or tests for fixing liability, the <ORG> have, in the absence of any statutory provision fixing liability irrespective of negligence, to turn to the Law of Torts, according to which in-disputably negligence in causing the accident in question is generally speaking essential to hold the negligent person liable. The cardinal principle of liability in Torts, when death or injury has been caused to a person, is negligent or failure to take the requisite amount of care required By law.

Held further, that the bunch of Sections 110 to 110-F of the Motor Vehicles Act do not in any way override the Law of Torts."

Learned counsel for the appellant submitted that in this authority, the learned Judge had not discussed the provisions of Sections 94 and 95 of the Motor Vehicles Act and if the same had been considered, the decision might have been otherwise. I have already referred to these two provisions in detail and am of the view that they do not, in any way, support the contention of the appellant.

9. In the present case, since I have already held that this accident was not due to any rash or negligent act of the driver, therefore, the appellant Is not entitled to claim any compensation for the Injuries received by him.

10. In the result, this appeal fails and is dismissed.

In the circumstances of this case, however, I will leave the parties to bear their own costs in this <ORG> as well.


JUDGMENT A.P. Sen, J.

1. These appeals by special leave are preferred by the State Government against the judgment and order of <ORG> dated May 25, 1973 acquitting the respondents <NAME>, <NAME> and <NAME> of offences punishable under Section 302 read with Section 34 and under Sections 449 , 460 and 394 of the Indian Penal Code, 1860, for the commission of which the Civil & Sessions Judge, <NAME> by his judgment dated September 21, 1972 had sentenced them to death on the first count and rigorous imprisonment for a period of 7 years under the remaining three counts. The learned Sessions Judge had also convicted the respondent <NAME> under Section 411 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 3 yean and the respondent <NAME> under Section 120B of the Indian penal Code and sentenced to undergo rigorous imprisonment for 2 years. These respondents have also been acquitted by <ORG> for the commission of offences with which they were charged.

2. We have with the assistance of learned counsel appearing for the parties, gone through the judgment of <ORG> as well as the evidence of the material prosecution witnesses. This was a case where during the night between December 25/26, 1970, there was a brutal and dastardly murder of <NAME>, a millionaire and his wife Smt. <NAME> at their house in Chhibramau. They had been tied with rope and strangulated to death after being subjected to torture. <NAME> was the richest person of the town and earlier carried on the sarafa business, hut had closed the business due to his old age and started lending money on pawn of gold and silver ornaments at his house. The miscreants broke open the iron safe kept in the bedroom of <NAME> and removed all gold and silver ornaments worth about Rs. 10 lakhs and cash worth Rs. 22, 424. The last persons to have seen <NAME> alive were their servant <NAME>, PW 7 and old <NAME>, PW 18. Their version is that they both saw the respondents <NAME> and <NAME>, two of the carpenters working on the remodeled house of <NAME> and their companion <NAME> entering the house as they left on the fateful evening at about 7.30 p.m. The respondents <NAME> and <NAME> along with their companion <NAME> effected an entry into the house on the pretext that they wanted to pledge their ornaments. On the next morning at about 7 a.m. <NAME>, PW 7 reported for duty but found the sadar door still closed from inside although the deceased <NAME> was an early riser and used to open it much earlier. Shortly thereafter, the other carpenter <NAME>, PW 15 also came for work. On finding no response they were apprehensive that something untoward had happened and <NAME> immediately left for the house of <NAME>, brother of the deceased, nearby and reported this to him and his sons <NAME>, PW 28 and <NAME>. On hearing this, <NAME> returned with <NAME>, PW 7 and again raised shouts but still there was no response. The two of them climbed over the roof of the house of <NAME> and from that roof they went over to the roof of the deceased's house and finding the door of the staircase open which was rather unusual they descended over the flight of the stairs and came to the ground floor. They entered the living room and found the furnitures and other effects scattered about. They further noticed that in the bedroom though the beds were still spread over the cots the deceased <NAME> and his wife Smt. <NAME> were not to be found. In the meantime, <NAME> and his son <NAME> and other inmates of their house also arrived on the scene. They noticed that the anteroom next to the living room had been locked from outside and felt suspicious that perhaps some persons had intruded into the house the previous night and after murdering the old couple decamped with valuables keeping the dead bodies inside the anteroom. We are told that the gold and silver ornaments and cash worth about Rs. 10 lakhs were taken away, out of which gold and silver ornaments worth Rs. 1.50 lakhs were recovered from the house of the three respondents <NAME>, <NAME> and <NAME> apart from currency note of the value of Rs. 12, 424 from that of the respondent <NAME>.

3. The first information report (Exh. KA 60) was lodged by <NAME>, PW 28 at Chhibramau Police Station at about 7. 45 a.m. The Report stated that the list of the looted property will be furnished later and contains the following recitals on which there was quite some discussion at the Bar :

We saw that all the articles were lying scattered in the big room and the small room close-by was locked. Thereupon, all of us searched for the uncle and the aunt in the whole of the house; but they were not found.

It appears that at some hour during the night, bad characters murdered my uncle and aunt and shut them in the room and have looted away property.

4. Undoubtedly, this was a case where murder and robbery are proved to have been the integral parts of one and the same transaction. As held by us in <CITATION> (1983) 2. SCC 330 in somewhat similar circumstances where the servant betraying the trust of his employer, strangulated the mistress of the house and decamped with her gold and silver ornaments which were later recovered, the presumption arising under Illustration (a) to Section 114 of the Evidence Act, 1872 is that not only the accused if their complicity is proved committed the murder of the deceased <NAME> and his wife <NAME> but also committed robbery of the gold and silver ornaments which formed part of the same transaction. It was cruel hand of destiny that they met the violent end by being strangulated to death by persons who committed the robbery in a cruel and dastardly manner and in cases of such murders committed with extreme brutality the only sentence is one of death as it fulfils the test of 'rarest of the rare' laid down in <CITATION> .

5. The heinous manner in which the diabolical act was committed is apt to prejudice one's mind and therefore we have scrutinized the prosecution evidence with care to determine whether the conviction of the respondents by the learned Sessions Judge for different offences with which they were charged was proper or not or whether the order of acquittal recorded by <ORG> has caused a flagrant miscarriage of justice which warrants an interference. Having given the matter our anxious consideration we cannot say that this was a case where the only view possible was the one taken by the learned Sessions Judge, namely, that of guilt of the respondents particularly the accused Sukhbasi, <NAME> and <NAME>. There is much to be said for the contrary view expressed by the learned Judges of <ORG> who have in their judgment carefully marshalled the evidence and drawn out serious infirmities in the prosecution case.

6. The prosecution case against the respondents rests purely on circumstantial evidence. The circumstances relied upon by the prosecution against the principal accused <NAME>, <NAME> and <NAME> for the charge of commission of murder of the old couple <NAME> and his wife <NAME>, and robbery of their gold and silver ornaments, are : (1) The fact that they were seen entering into the house of the deceased at about 7.30 p.m. on the fateful evening and were not seen leaving the house later that night by anyone. (2) The accused <NAME> and <NAME> along with <NAME>, PVV 15 were engaged by the deceased <NAME> as carpenters for the woodwork of his newly remodeled house. (3) On the next morning i.e. on December 26, the accused <NAME> and <NAME> did not come for work although the other carpenter <NAME>, PW 15 turned up as usual. (4) The recovery of gold and silver ornaments and cash from the house of <NAME> at village Behta, seven miles away from Chhibraroau on December 27 and 28 i.e. soon after the commission of the murders and robbery, by the Station Officer <NAME>, PW 31 and seized under seizure memos (Exh. Ka 53, 54 and 55), and recovery of gold and silver ornaments from the house of the accused <NAME> at village Akbarpur, some 8-10 miles away therefrom, by Station Officer PW 31 on December 28 and seized under seizure memo (Exh. Ka 57). (5) The seizure of gold and silver ornaments from the house of the accused <NAME>, PW 25, brother of the accused <NAME> at village Bchta by PW 31 on January 19, 1971 and seized under seizure memo (Exh. Ka 56). (6) The retracted confession (Exh. Ka 61) made by the accused <NAME> before <NAME>, PW 29, Magistrate (First Class), Farrukhabad on January 22, 1971 and the fact that he had sold a gold ring to <NAME>, PW 27. The circumstances appearing against the accused <NAME> are that the slip (Exh. Ka 42) purported to have been given by <NAME> was in his handwriting and given to the accused <NAME>, <NAME> and <NAME> by way of introduction.

7. <ORG> has with meticulous care analyzed the entire evidence to support its judgment of acquittal. We shall first take up the appeal against the respondent <NAME> who had been found guilty by the learned Sessions Judge of a charge under Section 120B of the Indian Penal Code. The gravamen of the charge against him was that he in agreement with the accused <NAME>, <NAME> and <NAME> forged the slip (Exh. Ka 42) purporting to be a note of <NAME>. It is the prosecution case that with the help of the same the three accused were successful in getting an entry into the house of the deceased <NAME>. The slip was alleged to have been found by PW 31 beneath the pillow of the deceased in his bedroom sometime after the nightfall of December 26, 1970 i.e. long after the police arrived at the scene. To substantiate a charge under Section 120B of the Code, there must be a criminal conspiracy atleast between two or more persons. There is not an iota of evidence to establish that the three accused prior to the commission of the offences had conspired together with the accused <NAME> and got forged from him the ruqqa (Exh. Ka 42) in the name of <NAME> to secure an entry into the house of the deceased. There is nothing to show that the accused <NAME> had been associating with the other accused. Although the accused <NAME> had admitted that the parcha (Exh. Ka 42) was in his handwriting but his version is that when he was arrested on January 2, 1971 the document was got written by him by PW 31 by use of force. <ORG> rightly observed that it is difficult to believe that the Investigating Officer did not even touch the cot of the deceased for about 8 to 10 hours in order to find out if there was any clue. Again, the two accused <NAME> and <NAME> did not stand in need of any recommendatory letter when they were working at the house of the deceased for about a month and were therefore very well known to him personally. Further, the deceased in all probability would know the handwriting of <NAME> and he would at once have detected the forgery. In view of all this, learned counsel for the appellant fairly stated that he could not support the appeal against the respondent <NAME> and accordingly the State appeal against his acquittal by <ORG> is dismissed.

8. That takes us to the appeal against the three respondents <NAME>, <NAME> and <NAME>. fn a case in which the evidence is of a circumstantial nature, the facts and circumstances from which conclusion of guilt is sought to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances so established should not only be consistent with the guilt of the accused, but they must be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence. Such a conclusion is not possible in the instant case. It appears that the deceased <NAME> earlier carried on a sarafa business but had closed that business due to his age and started lending money on pawn of gold and silver ornaments at his house. He had remodeled his residential house and the woodwork was going on for about a month and the accused <NAME> and <NAME> along with <NAME>, PW 15 were employed by him as carpenters. The topography of the place as evident from the site plan shows that there was only one sadar darwaza i.e. the main door from which one could get an entry into the house. In support of its case that the three accused had effected an entry into the house of the deceased on the fateful evening at about 7.30 p.m., the prosecution has examined 4 witnesses, namely, <NAME> 7, servant of the deceased <NAME>, <NAME> PW 18, old rnunim of the deceased who had started a safara business of his own, Dr. <NAME> Lal PW 5, Homeopath who had his shop in line with the sadar darwaza of the house of the deceased, and <NAME> PW 9, a shopkeeper nearby. <ORG> on a careful consideration of these witnesses found considerable doubt as to their credibility as truthful witnesses and has given weighty and cogent reasons for discarding their evidence. In the first place, it is difficult to believe that the deceased would have relieved his old servant <NAME>, PW 7 when at least one unknown person, namely, the accused <NAME>, was present inside the house and there was no evidence to show that he knew him from before. Secondly, it seems somewhat odd that the act of the accused <NAME> in closing the sadar darwaza from inside should not have aroused the suspicion of <NAME>, PW 7 since the deceased was left alone in the house with his wife. The version of <NAME>, PW 7 is that after finishing the day's work he left a glass of milk and bread in the bedroom of the deceased who asked him to go. At that precise moment <NAME>, PW 18 brought a jhola (Exh. 18) containing silver ornaments and handed it over to him for being given to the deceased for safe custody. He states that <NAME> told him that he had just returned from Agra with silver ornaments weighing 20.95 kg. but did not have the keys of his shop with him and therefore wanted to keep the ornaments with the deceased and would come in the morning to take them away. He further states that he took the jhola and passed it on to the deceased and as he was about to leave, he saw the three accused <NAME>, <NAME> and <NAME> in the passage leading to the sadar darwaza and that they had come with a note (Exh. Ka 42) from <NAME> asking the deceased to accept the ornaments in pledge. Again, he had admitted before the committing magistrate that he stayed on at <NAME> house till 8 p.m. but when confronted with this statement (Exh. Ka 2) he could not explain it away. During his cross-examination he denied that he knew the accused <NAME> and <NAME> although the prosecution case is that they along with <NAME>, PW 15 were working as carpenters at the house of the deceased for about a month. The story that the accused carried a ruqqa (Exh. Ka 42) from <NAME> as a letter of introduction to the deceased appears to be rather improbable. There was no need for them to have taken a letter of introduction when two of them were known to the deceased. Thirdly, the story that <NAME>, PW 18 came that night with 1 newly purchased silver ornaments in a jhola (Exh. 18) from Agra arid instead of keeping the ornaments at his own shop or his house, should have gone to the house of the deceased at 7.30 p.m. appears to be more than a mere coincidence. The testimony of <NAME>, PW 18 is that while he was coming out of the house of the deceased after entrusting the jhola containing silver ornaments, he noticed the three accused <NAME>, <NAME> and <NAME> passing through the gallery and when he questioned <NAME> as to where he was going, was told that he had come to pledge his ornaments. His version is that he saw the ruqqa (Exh. Ka 42) but it did not raise his suspicion although he knew the handwriting of <NAME>. It was found beneath the pillow of the deceased in his bedroom. <ORG> observes that the document was brought into existence subsequently. It is somewhat strange that the list of stolen ornaments furnished by <NAME>PW 28 to the Station Officer, PW 31 at about 12 noon contained all the particulars of the silver ornaments belonging to <NAME>, PW 18. He admits that he had given the particulars of the stolen gold and silver ornaments from the pawn register. If the prosecution case is true, them the moment <NAME>, PW 18 left he was followed by the three accused <NAME>, <NAME> and <NAME> and the deceased could have found no time to have made entries of those ornaments in the register. Fourthly, neither the testimony of Dr. <NAME> Lal, PW 5, nor of <NAME>, PW 9 to the effect that they had seen the accused effecting an entry into the house of the deceased through the sadar darwaza at about 7.30p.m. is worthy of any credence. The site plan shows that the shop of Dr. <NAME> Lal, PW 5 was in line with the sadar darwaza of the house of the deceased and he could not have seen the accused entering into the house through the door. His version is that on that evening he was sitting on the chabutra and the three accused came and sat at his shop for about 15 minutes saying that they had come to pledge their ornaments with the deceased <NAME>. He asserts that the saw the accused entering into the house at 7.30 p.m. and they did not come out till 10.30 p.m. He explains that he kept on sitting on the chabutra till late into the night because his nephew had come and they were discussing some family matters. <ORG> has disbelieved this witness observing that it was a chilly night in the month of December and it was improbable that Dr. <NAME> Lal, PW 5 would have sat on the chabutra of his shop rather than inside the shop and that if he had to discuss some family matters with his nephew, they would not have gone to his house which was nearby after closing the shop. The evidence of <NAME>, PW 9 is no better. His shop admittedly is at some distance from the main door of the house of the deceased. In view of these infirmiteis, learned counsel for the appellant conceded that he could not rely on the prosecution evidence relating to the entry of the three accused <NAME>, <NAME> and <NAME>.

9. We would have unhesitatingly maintained the conviction of the respondents <NAME>, <NAME> and <NAME> for these offences as also the sentence of death passed on them by the learned Sessions Judge, if the evidence led by the prosecution to establish the recovery and seizure of the stolen property was credible and worthy of acceptance. Unfortunately for the State, <ORG> has in its judgment brought out serious infirmities in the prosecution case which create considerable doubt and suspicion about the complicity of the accused in the commission of the crime and the alleged recovery of the stolen property made at their instance.

10. A careful reading of the judgment of <ORG> creates many doubts and difficulties. The learned Judges in the course of their judgment bring cut the various serious infirmities in the prosecution case. We feel it would be better to set out in extenso the portions of the judgment dealing with the various circumstances appearing from the prosecution evidence which make the alleged recoveries not free from suspicion :

In the first instance, there is evidence to show that valuable ornaments were found spread out inside and outside the main living room but we have been left guessing as to what happened to these. <NAME>, <NAME> and <NAME> (PW 7, 18 and 28) have admitted that ornaments were found scattered inside or outside the room. <NAME> has approximated the value thereof at Rs. 12,000/-. The investigating Officer, <NAME>, PW 31 has also admitted the existence of these ornaments. He has not said a word as to how he dealt with these. No recovery memo was prepared in respect of these valuables; or at any rate, he does not say so. He does not even say as to how he dealt with these ornaments, that is to say, did he take them into custody or handed them over to someone, and if so, to whom. The witnesses aforesaid are also silent about it. The suggestion made by the learned counsel for the appellants is that these ornaments were subsequently utilized for the purpose of being shown as recovered ornaments. It is quite true that the appellants have been unsuccessful in proving it to be so but the matter is not free from suspicion. It was the duty of the prosecution to have explained what happened to these ornaments and it is unfortunate that we have been made to guess about it.

Secondly, the first information report was made at 7.45 a.m. The police station only two furlongs distance from the scene of the murder. The first information report expressed suspicion of two murders. The Investigating Officer arrived, as he says, not as the crime had been registered. He arrived at the scene and went inside and saw ornaments and other household effects lying scattered, here and there. He found the ante-room locked from outside and broke open the lock. He went into the anteroom and found bodies covered by dares and clothing's and also discovered that the necks of the two persons were fastened by ropes and their hands were tied behind their backs. He then became busy with controlling a large crowd which had invaded the house and had to devote about one a half hours in controlling it. He could have easily deployed subordinate police personnel for that purpose. The learned counsel for the appellants argued that he has introduced delay because the list of stolen properties was still being prepared and if he admits that the investigation had already started, this list may become inadmissible evidence, as a document prepared during the course of the investigation may not be available for reference during the trial.

It is undoubtedly true that a rich man of the town had died and a crowd would collect, but that does not mean that it could not be controlled by the lesser hierarchy of police authorities. It was not a violent crowd but a crowd which had collected out of sympathy and curiosity. It would assist and not hinder investigation. The list Exh. Ka-41 is said to have been prepared by one <NAME> (Munim of <NAME>, PW 18) by the help of the pawn register Exh. Ka-40 and on the basis of the knowledge of <NAME> and <NAME> as to the ornaments that possibly had been stolen and carried away. The list was ready by about 11.30 or 12 midday and then it was handed over to <NAME>. It is obviously hit by Section 161 read with Section 162 of the CrPC.

Thirdly, the pawn Register is Exh. Ka-40. The evidence indicates that it came into the custody of <NAME>, PW 28 sometime about 8 a.m. and on its basis, the list continued to be prepared till about 11.30 or 12 mid-day. No recovery memo was prepared in respect of this register, although it was taken into custody by the Investigating Officer, as stated by <NAME>. Fourthly, we are surprised at the conduct of the Investigating Officer in practically doing nothing on December 26 regarding the arrest of the suspects or search of their houses with a view to get hold of them as quickly as possible and to recover the properties, if these were with them. We still proceed on the basis of two hypothesis, one advanced by the learned counsel for the appellants to the effect that suspicion against the appellants <NAME>, <NAME> and <NAME> came into existence not on December 26 or even in day time on December 27 but sometime in the night between December 27/28th, 1970 or on December 28 and then the activities started; and the second one advanced by the learned Deputy Government Advocate that the names of these three suspects were known latest by midday of December 26 and attempts were made to arrest them but this attempt had failed. <NAME>, PW 28 was informed about the incident at 7 a.m. on December 26. He made his first information report at a distance of two furlongs at 7.45 a.m. On his own admission, therefore, he had an interval of 45 minutes to think about the matter. <NAME> suspected the hands of these three appellants quite early. His deposition shows that he did not impart this information to <NAME> till after the first information report had already been made and that is the reason why the names of these three suspects have not been mentioned in the first information report. The question is whether or not this is probable, in the circumstances of the case. <NAME> and <NAME> and the latter's family members had reconnoitered the scene. They realized loss of Jewellery of huge amount. They suspected murders of two persons. It will be natural, in the circumstances, therefore, for them to start guessing as to who could be the possible culprits, <NAME> would only question <NAME>, the domestic servant of the deceased, as to when he had left the house in the proceeding night and as to what intruders were there; and to imagine that nothing of the sort will be done, would be rather improbable. <NAME> knew that these three suspects had entered the house. He also knew that they had come for the ostensible purpose of pawning ornaments but he himself had not seen any with them. He knew that as soon as he had come out of the house, the door had been closed from inside. He, however, did not say all these things to <NAME>, and for that matter, <NAME> also did not prove into these things. Be that as it may, we will now proceed to discuss the subsequent conduct. Before arriving on the scene, the Investigating Officer had got into touch on the telephone with Kanpur and had made a request for the despatch of <ORG>.

Now, that would be explainable on the footing that he had no clues and wanted to utilize <ORG> to hound up the culprits by their sense of smell. He had himself stated that he needed the Squad to furnish clues concerning the culprits. He started recording statements of witnesses who could possibly throw some light. These witnesses are Dr. <NAME>, <NAME>, <NAME>, <NAME> and <NAME>. They furnished important clues pointing to the incrimination of these three appellants. <NAME> Also furnished clues about offerings made at the temple. These statements were over by about 1 p.m. <NAME>, therefore, had ample material. Dog-Squad arrived at 4 p.m. and he waited till then before taking any tangible steps towards substantial investigation. <ORG> furnished no clues, as admitted by him. What would be his reaction in such circumstances ? Would or would he not take effective steps for the arrest of these three suspects and for the search of their houses. He has stated that he had deputed some Sub-Inspectors of police to arrest the suspects. None of them, however, has been examined either to corroborate him or to let the Court know as to what steps they had taken or attempts they had made. The evidence given by the other witnesses is also inconclusive. The appellant <NAME> is a native of <NAME>, eight miles from the police station. But he had a house and a shop at Chhibramau also. The appellant <NAME> resides in another village, some miles away from the police station, but works at the shop of the appellant <NAME>. The appellant <NAME> was in the service of <NAME>. <NAME>, PW 28 himself did not go to locate any of these three persons. His deposition is that he had deputed <NAME>, PW 15 for that purpose and on return, it was reported to him that he had gone to the shop of <NAME> but had found it closed. His evidence is hearsay, like that of <NAME> that his Sub-Inspectors had made attempts. <NAME> has stated that he and <NAME> had found <NAME>'s shop closed and he had passed on that information to <NAME>. He did not go to <NAME>. He did not go to the house of <NAME>. He did not even go to find if <NAME> was at the <NAME>'s shop. <NAME>, PW 9 has stated that so far as his knowledge goes, no one had gone to make any search but he had heard that a search was being made. His evidence, therefore, is also useless. <NAME> visited only the shop of the appellant <NAME>. He did not go to <NAME>'s shop, or <NAME>'s house in <NAME> or <NAME>'s house in the rural area. <NAME> also visited <NAME>'s shop alone. Now, this is the picture presented.

If we assume that the Investigating Officer had no clues and had to call <ORG> for that reason and admittedly the Squad also furnished no clues, and if we further assume that the statements of these witnesses were not recorded on December 26 and, therefore, they had also not furnished any clues on that date, the conduct of the Investigating Officer will become consistent with the fact that he had no clues in hand on December 26. On the other hand, let us assume that he had evidence before him by about mid-day on December 26, that these three suspects had a possible hand in the crime, he would move in a frantic and hectic manner to get hold of them. Police personnel would be sent to Behta, where <NAME> resides and also the native village of Ram Sanehi and to <NAME>'s shop to arrest, and if none of them was available, to take a search of their houses in the hope of recovering properties. This was not done and that again is consistent with the fact that the Investigating Officer had no clues in his hand and would be consistent with the fact that he knew and still did not take the steps which any prudent Investigating Officer would have taken.

We agree with these observations made by <ORG>.

11. The testimony of the Investigating Officer <NAME>, <NAME> shows that while he was recording the statements of the witnesses they revealed certain information on the basis of which he suspected the involvement of the accused. <ORG> came at about 4 p.m. The dogs went on a track first over the roof to the joint from where the bad characters had gone down by fixing a rope and then passed through the lane by the shop of the accused <NAME> to the temple of <NAME> where they offered 8 silver coins (Exh. 98) and from there to the bus-stand Chhibramau where the track ended. Apparently, the accused had boarded the bus and disappeared. He slates that he got definite information about the complicity of the accused <NAME>, <NAME> and <NAME> at about 1 a.m. on the night intervening December 27/28 i.e. in the early hours of the 28th morning. He states that on receiving the information he immediately left with police force in a truck for village Behta to which the accused <NAME> belongs. He left the truck on the outskirts of the village and took <NAME>, PW 25, <NAME>, <NAME> and <NAME> from the village. The <ORG> party surrounded the house of the accused <NAME>. On seeing the police party, four of the inmates tried to escape by placing a ladder against the compound wall. Three managed to escape but the fourth i.e. the accused <NAME> was appre-bended. He was administered a beating and offered to hand over some ornaments which he had buried inside the kotha. He dug out from the ground a bundle of silver ornaments (Exh. 96). He volunteered that there were other ornaments with the accused <NAME>. <NAME> that he did not search the other rooms as he was in a hurry to apprehend <NAME>. He then took the accused <NAME> and members of his family in a truck for the house of <NAME> in village Akbarpur but he was not to be found. It was learned that he had gone to take a bath in the Ganges at Shringi Rampur. <NAME> that he left for Shringi Rampur and arrested the accused <NAME> near Rajepur. He disclosed that he had buried the share of the looted property in his house and offered to hand them over. <NAME> then took him to his house at Akbarpur. The accused <NAME> took <NAME> to the kotha and from there gold and silver ornaments were recovered kept concealed in an earthen pot, seized under Exh. 57. <NAME> then returned to the house of the accused <NAME> at village Behta and confronted the accused <NAME> with accused <NAME>.

12. Upon interrogation the accused <NAME> revealed that he had kept currency notes of the value of Rs. 12,424 and other gold and silver ornament concealed in a room to the east of the courtyard under a heap of cowdung cakes. Then his house was searched the second time at about 3 p.m. on the 28th. The accused <NAME> took PW 31 inside that room and took out the bundle containing Rs. 12,424 and stolen articles marked Exh. 97 seized under seizure memo (Exh. 55). PW 31 found 37 pawn slips detached from the ornaments lying in that room and took possession of the same (marked Exh. Ka 3 to 39 and seized under seizure memo Exh. Ka 54). A week thereafter on January 1, 1971 he arrested the accused <NAME> from Kaimganj. On the next day i.e. on the 3rd, he recorded the statement of <NAME>, PW 25 and the other witnesses at the Police Station. A fortnight thereafter the accused <NAME> surrendered himself before the Magistrate on January 19, 1971. On interrogation he revealed that he had sold a gold ring to <NAME> at Farrukhabad and offered to hand. over some of the ornaments of his share which he had kept concealed in his house. On the night between January 19/20, PW 31 took him inside the house and the accused <NAME> dug out a jhola (Exh. 18) from inside a heap of bhoosa which contained gold and silver ornaments seized under seizure memo (Exp. 56). The accused <NAME> expressed his desire to make a confession. The confession made by the accused <NAME> <NAME> (Exh. Ka 61) was recorded by <NAME>, PW 29, Magistrate (First Class), Farrukhabad on January 22, 1971, but he later retracted the confessional statement in <ORG>. Some four months thereafter on May 25, 1971, <NAME> held a test identification parade of the stolen articles and almost all of them were identified as either belonging to the deceased <NAME> or pledged with him, by <NAME>, PW 28, <NAME>, PW 18 etc.

13. If the matter stood at that, there would have been no difficulty in reversing the judgment of acquittal recorded by <ORG>. There are however certain mysterious circumstances. During his cross-examination <NAME> that on information gathered from the statements of the witnesses he suspected that the accused were involved in the commission of murder and robbery. He therefore despatched a team of sub-inspectors to village Behta at 4p.m. If that be so, then there was no reason for him to wait till 1a.m. i.e. for nine hours. The arrival of <ORG> proved abortive as it tracked down the escape route upto the bus stand. <NAME> that he made a search for the accused but they were not to be found in Chhibramau. He should then have proceeded at once to village Behta to which the accused <NAME> belongs. But he evidently waited till la.m. and then went with the police party to the village in a truck. This long unexplained delay is shrouded in mystery. Further, the manner of recovery creates considerable doubt. The house of <NAME> was raided twice and two lots of ornaments recovered, the first on the 27th seized under seizure memo (Exh. Ka 53) and the second on 28th seized under seizure memo (Exh. Ka 55). The accused <NAME> was not arrested till 28th even after the recovery of the stolen ornaments and of pawn slips (Exh. Ka 3 to 39). The next recovery of gold and silver ornaments from the house of <NAME> at village Akbarpur on the 28th morning was under seizure memo (Exh. 57). The fourth lot of ornaments was not recovered from the accused <NAME>, brother of the accused <NAME>, till January 19, 1971 and seized under seizure memo (Exh. 56) i.e. after about 22 days. There was no recovery from the accused <NAME> but he made the retracted confession (Exh. Ka 61) before <NAME>, Magistrate (First Class), Farrukhabad on the 22nd and confessed that he had sold a gold ring to <NAME>, PW 27. PW 31 suggests that on seeing the police party the accused <NAME> and his companions tried to escape by placing a ladder against the compound wall but the accused <NAME> was apprehended and then administered a beating. The witnesses of seizure are common. All these circumstances create a doubt and <ORG> has acquitted the accused <NAME>, <NAME> and <NAME> giving them the benefit of such doubt. There appears to be no just and compelling reasons for us to interfere with the judgment of acquittal.

14. It is unfortunate that the accused in this case of the heinous and gruesome murders of the deceased <NAME> and his wife <NAME> and the robbery of their property worth several lakhs of rupee should escape. Though we have considerable suspicion that the accused <NAME>, <NAME> and <NAME> were the persons who may have committed these murders and robbery, the judgment of acquittal recorded by <ORG> must stand. There is no legal evidence to sustain their conviction for the offences with which they were charged. The prosecution evidence falls short of the proof required. Mere suspicion, however grave, cannot take the place of proof.

15. As regards the disposal of the gold and silver ornaments seized and the cash of Rs. 12,424, it is not disputed that they were all stolen and belonged to the deceased <NAME> but their recovery from the accused is in doubt. The accused <NAME> and <NAME> have disclaimed that these ornaments and cash were seized from them or belonged to them. That was also the stand of the learned counsel appearing for the respondents. In the circumstances, we modify the direction made by <ORG> that the seized gold and silver ornaments shall remain in custody till the claims for their right and title are settled by <ORG> of competent jurisdiction. We think it necessary in the interests of justice to direct that the stolen gold and silver ornaments and currency notes worth Rs. 12,424 seized by the police are restored to the legal heirs of the deceased Lala <NAME> and his wife Smt. <NAME>, subject to the right or claim of any third party which may be established in a competent <ORG>.

16. Subject to this modification, the appeals fail and are dismissed.