# Puluhri Kotayya v. King Emperar

- **Citation:** [1963] 2 S.C.R. 881
- **Court:** Supreme Court of India
- **Decided:** 1961-09-12
- **Case number:** Criminal Appeal No. 50 of 1962
- **Bench:** S. K. DAs, A. K. Sarkar, M. Hidayatullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/puluhri-kotayya-v-king-emperar-2553
- **Pages:** 10

## Headnote

Evidence-.M,,rder-llecovery of blood 1tained axe and
clothes ai instance of acrn.11ed-Sta'emenls by
accu.~ed t}1at
axe was one u~th u'hich he committed murder
and that
blood stained
clof,hes were
his-Admis8ibiUty of-Indian
Evidence Act, 1872 (I of 1872), s. 27.
,
The appellant was tried and convicted for the murder
of one B.
The evidence against him was circumstantial and
consisted of ( 1)
a motive to kill B which he had in common
with his father, (II) the recovery at his instance of an
, axe, shirt and dhoti stained with human blood and (III)
his statements made to a Sub-Inspector of Police before
the recovery that the axe was one with which he had
killed B and that the shirt and Dhoti belonged to him.
No independent evidence was led to prove that the axe
shirt and dhoti belonged to the appellant.
'
•
J!el.d, that the statem~n.ts mad~ by the appellent were
madm1ss1ble and the remaining evidence was not sufficient to bring home the guilt to the appellant. The state.
ments were ~ncriminating ones· made to a police officer
and were !111 by ss.
25 and 26 of the Evidence Act,
19fl
Jia Lal
••
D1lh; Aim;nistro1ian
MayB.
1'6t
Pr.bh
..
814JIOf U. P:
882
SUPREME OOURT REPORTS (1963]
The Statements were not 'admiasible under s . .2.7 as they
did not lead to any discovery within the meaning of that
section •
Puluhri Kotayya v. King Emperar,
( 1947) L. R. 74
I. A. 65, relied on. '
Stale of U. P. v. Dttnna11 Upadhya, [1961] I S. C.R.
14, distinguished.
CBJ:mNALAPPELLATE JURISDICTION: Criminal
Appeal No. 50 of 1962.
Appeal by special leave from the judgment
and order dated September 12,
1961,. of the
Allahabad High Court (Lucknow Bench) at Lncknow
in Criminal Appeal No. 494 of 1961.
Nuruddin Ahmed, for the appellant.
G. C. Mathur and C. P. Lal,, for
the respondent.
1962. May 3. The Judgment of the Court
was delivered by
DoaJ.
S. K. DAB, J.--The learned Seeeione Judge of
Rae Bareli tried the appellant Prabhu on a charg11
of murdering hie own uncle and found him guilty
of the offence and sentenced him to death. There
were an appeal to the High Court and ~~" usual
reference for confirmation
of the sentence of
death. The High Court dealt with the appeal and
reference by one judgment.
It accepted the
reference, diemieeed the appeal and confirmed the
conviction
and sentence. The appellant
then
asked for and obtained special leave of this Court
to appeal from the judgment and order of the
High Court. The present appeal has come to us
in pursuance of the leave granted by this Court.
Shortly stated the case against the appellant
was this.
Bhagwan Ahir, step-brother of the
appt>llant'a father Budhai, was a
resident of
•
.·
2 S.C.R.
.SUPREME COURT REPORTS
883
village Bandi jn the district of Rae Bareli. The
1961
1
appellant and his father Budhai lived in another
-
Ptabhu
village called Gulariya at a distance of about two
v.
'
or three miles from Bandi. Bhagwan had about
SIDt,.fU.P.
four bighaa of pasture land and sev:en bighaa of
cultivated land. He had no male issue, He had
DasJ.
several daughters who were all married and reeided at the places of their respective husbands.
Bhagwan was old, near about SO years of age
according to the evidence of Marka, and had· no
·-
male member in the family to help him with his
cultivation. Budhai, it appears, did not reside
{" ·-
in village Gulariya all the year round, but was
engaged in some job at Burdwan in Bengal, Some
four years before the date on which Bhagwan was
said to have been murdered the appellant and his
mother came to reside with Bhagwan. The. idea
was that the appellant would be able to help
Bhagwan with bis cultivation, The appellant did
not, however, render much assistance to Bbagwan
and the prosecution case was that after about a
-;-
year of tht>ir stay, Bhagwan turned .them out of
the house. The appellant and his mother then
went . back to village Gulariya. The prosecution
case further was that about a month and a half
before the murder of Bhagwan the appellant and
his father came to Bhagwan an

## Text

cl '
2 S.C.R.
SUPREME COUR'!'. REPORTS
881
contention which is accordingly rejected. In Crimi.
nal Appeal 62 of 1960 an argument was advanced
that the State had launehed prosecutions under the
Act, some wit.h, and others withput sanction; and
that was disorimin:ttion hit by Art. 14.
'fhere is
no substance in t;his contention, which also is
rejected.
In the result both these appeals are dismissed.
Appeal dismissed.
PRABHU
ii.
STATE OF U. P.
(S. K. DAs, A. K. SARKAR, and
M. HIDAYATULLAH, JJ;)
Evidence-.M,,rder-llecovery of blood 1tained axe and
clothes ai instance of acrn.11ed-Sta'emenls by
accu.~ed t}1at
axe was one u~th u'hich he committed murder
and that
blood stained
clof,hes were
his-Admis8ibiUty of-Indian
Evidence Act, 1872 (I of 1872), s. 27.
,
The appellant was tried and convicted for the murder
of one B.
The evidence against him was circumstantial and
consisted of ( 1)
a motive to kill B which he had in common
with his father, (II) the recovery at his instance of an
, axe, shirt and dhoti stained with human blood and (III)
his statements made to a Sub-Inspector of Police before
the recovery that the axe was one with which he had
killed B and that the shirt and Dhoti belonged to him.
No independent evidence was led to prove that the axe
shirt and dhoti belonged to the appellant.
'
•
J!el.d, that the statem~n.ts mad~ by the appellent were
madm1ss1ble and the remaining evidence was not sufficient to bring home the guilt to the appellant. The state.
ments were ~ncriminating ones· made to a police officer
and were !111 by ss.
25 and 26 of the Evidence Act,
19fl
Jia Lal
••
D1lh; Aim;nistro1ian
MayB.
1'6t
Pr.bh
..
814JIOf U. P:
882
SUPREME OOURT REPORTS (1963]
The Statements were not 'admiasible under s . .2.7 as they
did not lead to any discovery within the meaning of that
section •
Puluhri Kotayya v. King Emperar,
( 1947) L. R. 74
I. A. 65, relied on. '
Stale of U. P. v. Dttnna11 Upadhya, [1961] I S. C.R.
14, distinguished.
CBJ:mNALAPPELLATE JURISDICTION: Criminal
Appeal No. 50 of 1962.
Appeal by special leave from the judgment
and order dated September 12,
1961,. of the
Allahabad High Court (Lucknow Bench) at Lncknow
in Criminal Appeal No. 494 of 1961.
Nuruddin Ahmed, for the appellant.
G. C. Mathur and C. P. Lal,, for
the respondent.
1962. May 3. The Judgment of the Court
was delivered by
DoaJ.
S. K. DAB, J.--The learned Seeeione Judge of
Rae Bareli tried the appellant Prabhu on a charg11
of murdering hie own uncle and found him guilty
of the offence and sentenced him to death. There
were an appeal to the High Court and ~~" usual
reference for confirmation
of the sentence of
death. The High Court dealt with the appeal and
reference by one judgment.
It accepted the
reference, diemieeed the appeal and confirmed the
conviction
and sentence. The appellant
then
asked for and obtained special leave of this Court
to appeal from the judgment and order of the
High Court. The present appeal has come to us
in pursuance of the leave granted by this Court.
Shortly stated the case against the appellant
was this.
Bhagwan Ahir, step-brother of the
appt>llant'a father Budhai, was a
resident of
•
.·
2 S.C.R.
.SUPREME COURT REPORTS
883
village Bandi jn the district of Rae Bareli. The
1961
1
appellant and his father Budhai lived in another
-
Ptabhu
village called Gulariya at a distance of about two
v.
'
or three miles from Bandi. Bhagwan had about
SIDt,.fU.P.
four bighaa of pasture land and sev:en bighaa of
cultivated land. He had no male issue, He had
DasJ.
several daughters who were all married and reeided at the places of their respective husbands.
Bhagwan was old, near about SO years of age
according to the evidence of Marka, and had· no
·-
male member in the family to help him with his
cultivation. Budhai, it appears, did not reside
{" ·-
in village Gulariya all the year round, but was
engaged in some job at Burdwan in Bengal, Some
four years before the date on which Bhagwan was
said to have been murdered the appellant and his
mother came to reside with Bhagwan. The. idea
was that the appellant would be able to help
Bhagwan with bis cultivation, The appellant did
not, however, render much assistance to Bbagwan
and the prosecution case was that after about a
-;-
year of tht>ir stay, Bhagwan turned .them out of
the house. The appellant and his mother then
went . back to village Gulariya. The prosecution
case further was that about a month and a half
before the murder of Bhagwan the appellant and
his father came to Bhagwan and the appellant's
father asked Bhagwan to transfer some of his land
to the appellant.
Bhagwan said that he had
already kept the appellant with him for a year
and had found that he was of no assistance. He,
therefore, refused to give any land . to the appellant. Bhagwan it appears, had
some grand·
daughters and one of them called Kumari Sarju
aged about five years was
staying with him.
Bhagwan said that he would give hie lands to his
grand-daughter Sarju.
' ...
On the night between March 19 and 20, 1961,
Bhagwan was sleeping in front of hie house on q.
IHI
p,ablni
••
Sl•I• of U .P.
D<uJ.
884
SUPREME OOURT REPORTS (1963]
cot with his grand-dau~hter. One Naiku (P. W. I)
was sleeping at a short distance from Bhagwon's
house. Naiku was a neighhour of Bhagwan. At
about midnight Naiku heard some noise and
called out to Bhagwan. There was no re3ponse.
Naiku then heard the sound of shoes as though
somebody was running away from the place. Naiku
called out certain other persons and went near
the place where Bhagwan was lyiog on his cot.
It was found that Bhagwan had a large number of
injuries on the head and neck,
most of the
injuries· being of an incised
oature.
Bhagwan
was
already
dead.
The
little girl
Sarju
though
stained
with blood
which
flowed
from the body of Bhagwan was not herself injured.
She was soundly sleeping on the cot and was not
awake when Bhagwan was killed. Naiku gave an
information to the police station of what he had
heard and seen, the distance of the police station
being about eight miles from village Band!. The
information which Naiku gave did not rlisclose
the name of any accused person because Naiku
had not seen who had killerl Bhagwan.
On the information given by Naiku the local
police started investigation and when the dead
body of Bhagwan was brought back to the village
after the post-mortem examination for cremation,
the appellant, it is stated, came to one Brij Jal
(P. W. 2) of village Bandi. This was on the third
day after the murder. 'l'he appellant made certain enquiries from Brij Jal which roused the
latter's suspicion. The Sub.Inspector of Police was
then in the village and he was informed of the
presence of the appellant.
The appellant was
then interrogated and the case of the prosecution
was that the appellant made certain statements
and produced from his house a kulhari, a shirt
and a dhoti These were found to be blood stained
apd subsequent. examination by the Chemical
•
-
2 S.C.R.
SUPREME OOURT REPORTS
885
Analyst and the Serologist disclosed that they
were stained with human blood. This recovery
of the blood stained kulha.ri (axe) and the blood
stained shirt and dhoti was made, according to
the prosecution case, on March 22, 196i, in the
presence of two witnesses, Lal Babadur Singh and
Wali Mohammad.
It would appear from what we have stated
above that the case against the appellant rested
on the evidence relating to motive furnished by
what happened about a month and half before
the occurrence when the appellant and his father
asked for some land from the deceased, and the
recovery of the blood .stained . axe and blood
stained shirt and dhoti from the house
of the
appellant.
The appellant denied that he and his
father had asked for any lands from the deceased
a month and a half prior to the occurrence. The
appellant also denied that he had
produced
any blood stained axe or
blood stained shirt
and dhoti
from
his house, or . bad handed
them over to
the
Sub.Inspector of Police,
He denied that the clothes or the axe belonged to
him. His defence was that he was . living with
his father in Burdwan and came back to the
village on March 21,1961; He said that the case
against him was brought out of enmity.
Learned counsel for the appellant has taken
us through
the
evidence in the case and has
submitted that apart from raising some suspicion
against the appellant and his father, the evidence
given hy the prosecution does not establish
beyon~ any reasonable doubt t~at the appellant
was tlie murderer. He has further submitted that
certain statements alleged to have been made by
appellant. to the Sub-Inspector of Police in connection with the recovery of the blood stained axe
and blood stained shirt and dhoti were inadmissible
~d the courts below were wrong bl relfiDJ 0'1
1962
Prabhu
••
Slate ofU. P.
Da1J.
1911
••
Star. oJU. P,
Dal J,
888
SUPREME OOURT REPOR'm [1963]
them. He he.s contended the.t if those statements
a.re excluded from consideration, than the evidence
which remains is insufficient to suport the conviction of the e.ppelle.nt.
We think the.t these contentions are correct and must be upheld.
There ca.n be no doubt · the.t.. Bhe.gwe.n we.s
murdered on the night in question. The postmortem exe.mine.tion disclosed that he had sustained
e.s me.ny as thirteen injuries, eleven of whioh were
incised on different pe.rts or the body. The injuries
inflicted on the head e.nd fe.oe had cut through skull
bones and 'the doctor who held the post-mortem
examination was of the opinion the.t Bhagwe.n he.d
died as e. result of fractures of the skull bones and
he.emorrhage and shock. !l'here can, therefore, be
no doubt that Bhe.gan we.s murdered. It is equally
olee.r the.t nobody se.w who killed Bhe.gwan. The
evidence of Ne.iku (P.W.l) shows clee.rly enough
the.t neither he nor other persons whom he co.lied
eaw the appellant. The gre.nd-child who we.s
sleeping with Bhe.gwe.n was e.lso fast a.sleep e.nd did
not even e.we.ke when the injuries were int licted on
Bhagwe.n. Bhagwan might or might not he.ve
re.ised shouts when the injuries were caused to him.
The evidence of Ne.iku does not disclose the.t he
heard any other sound excepting the sound of
movement of steps of a person wee.ring shoes.
We are satisfiild that the evidence e.s to
motive is satisfe.otory. Both Naiku (P.W.l) e.nd
Brij Le.I (P.W.2) be.ve stated about the motive.
The appellant
e.nd
his mother stayed with
Bhagwe.n about four years ago in order to
render
e.ssistance to Bhagwan in his cultivation.
The
appelle.nt
did
not, however,
do e.ny work e.nd we.s turned out. This is proved
by the evidence of Naiku and Brij I.al. The evi·
dence of the aforesaid two witnessea also establishes the.t the appellant and his· fe.ther came to
Bhagwan about ·e. month e.nd a he.If before the
occurrenpe and Baked for some le.nd. Bhagw!Wl
refused to give any le.nd to the appellant. We
,
~ S.C.R.
SUPREME COURT .REPORTS
887
think that this motive has begn established even
1111
1
though it would influence both the appellant and
Prob/tu
his father.
v.
The main difficulty i~ the oa~e is that the
Sl4tlo/U P.
--
evidence reg11.rding the recovery of blood stained
Da1J
axe and blood stained shirt and dhoti is not very
satisfactory and ihe courts below were wrong in admitting certain statements alleged to have been made
-~
by the appellant in oonnection with that reco'\"ery.
According to the recovery memo the two witnesses
who were present when the aforesaid articles were
,
produced by the appellant were Lal Bahadur Singh
and Wali Mohamad. Lal Bahadur Singh was exe.-
mined as prosecution witness No. 4. He did give
evidence about the production of blood stained
articles from.his house by the appellant. The witness said that the appellant produced the articles
from a tub on the eastern side of the house. The
witness did not, however, say that the appellant
\
made any statements relating to the recovery.
"
Wali Mohammad was not examined at all. O!t-a
other witness Dodi Baksh Singh was examined as
prosecution witness No. 3. This witness said that
a little before the recovery the Sub-Inspector of
Police took the appellant into custod,r and inter·
rogated him ; then the appellant gave out that the
.
axe with which the murder had been committed
and · bis blood stained shirt and dhoti were in the
•
house and the appellant was prepared to produoe
them. These statements to which Dobi Baksh
(P.W.3) deposed were not admissible in evidence.
They were incriminating statements made . to a
police officer and were hit by ss.25 and 26 of the
Indian Evidenoe Act. The statement that the axe
was one with whioh the·murder had been commit·
•
ted was not a statement which led to any discovery
..
within the meaning of s.27 of the Evidence Act. Nor
was the ·alleged statement of the appellant that the
blood stained shirt and dhoti belonged to him was
1962
Prabhu
v.
Slal1 of U. P.
Da1J.
888
SUPREME OOURT REPORTS ~1963]
a statement which led to any discovery within the
meaning of s.27. Section 27 provides that when any
fact is deposed to and discovered in consequence
of information received from a person accused of
any off~nce, in the custody· of a police officer, so
mq.oh of such infqrmation1 whether it amounts to
a confession or hot, as -relates. distinctly 1to the fact
thereby discovery m,ay 'be prov.j'd. In Pulukuri
.Kotayya v. Jr.ing Emperar (1) the Privy C<;>uncil considered the ~rtie -interpretation of s.27 and said :
"It is fallacious to treat the •fact discovered~ Within the 'sectjon as equfvalent to the
object produQ.ed ; the fact discovered embraces
the place from which the object is produced
and the knowledgo of tbe accused as to this,
and the information given must relate distinctly to this fact.
Info~m'ation as to.past U_!l~r,.
or the past history, of the object proauced is
not related .to its discovery in the setting in
which it is 'discovered. Information supplied
by a person in ~us~ody that 'I will produce a
knife conceal()d in t!ie roof of my house' does
not lead to th'e discoyery of a knife ; knives
were discovered many years ago. It leads to
the discovery ·of the fact that a knife is concealed in the' house of the informant to his
kuowledge. a.nd if the knife is proved to have
been used in the' oommiBBion of the 'offence; the
fact discovered is very relevant. But if to the
statement the words be.added 1with which I
stabbed A.', these words are inadmissible srnce
they do not relate to the discovery of the knife
in the house of ihe informant!' (p. 77)
•
{
We.a:re, therefore, of the opinion that the courts below
were wrorlg· in admitting in evidence the alleged statement· of the appellant that the axe had been tiaed
)...
tl>''Comniit murder ·or the statement tha._t tlie blood
(I)
(1~7) L.R. 74 I.A 65.
Ir:
\.-
2 $.C.R.
SUPREME COURT REPoR'rS ,
889
stained shirt a.nd dhoti were his. If these state•
ments a.re excluded a.nd we think that they must be
excluded, then the only evidence which remains i9
that the appellant produced from the house a blood
stained a.xe and some blood stained clothes. The
prosecution gave no evidence to est blish whether
the axe belonged to the appellant or · the blood
stained clothes were his.
Therefore, the ·question before us is this. Is
the production of the blood 11ta.ined axe and clothes
read in the light of the evidence regarding motive
sufficient to . lead to the conclusion that the appellant must be the murderer ? It is well-settled that
circumstantial evidence must be much as to lead to
a conclusion which on any reasonable hypothesis ia
consistant only with the guilt of the accused person
and not with his innocence. The motive alleged in
this case would operate not only on the appellant
but on his father as well. From the mere production
of the blood stained articles by the appellant one
canpot come to the. conclusion that the appellant
committed the murder. Even if somebody else had
committed the murder and the blood stained articles had been kept in the house, the appellant
might produce the blood stained articles when
interrogated by the Sub-Inspector of Police. It
cannot be said that the fact of production is consistant only with the guilt of the appellant and
inconstent with his innocence. We are of the opinion that the chain of circumstantial evidence is not
complet.e in this case and the prosecution has unforttinately
left missing links, probably because
the proaecution adopted the shortout of ascribing
certain statements to the appellant which were
clearly· inadmissible.
Learned counsel for the respondent has submitted to us tha.t in 8Wte of U.P. v. Deoman Upadhyaya (') this Court accepted as sufficient evidence
(I) (1961) I S.C.R. I ..
1561
Prablm
y.
Sia" o/ U. P.
Dru J.
IHI
Pr•blb.
..
~tat• of U. P.
DasJ.
IHI
890
SUPREME COURT REPOR'l'S [1963]
·the production of a blood stained weapon. We are
unable to agree. The ciroumsta.ntla.I cha.in in that
case did not depend merely on the production of the
gandasa, but on other circumstance a.e well. The
Court held in that case that the oiroumsta.ntial oha.in
was complete a.nd the decision did not prooeed
merely on the production of a blood stained
weapon.
For the reasons given above we would allow
the appeal and set a.side the conviction and eentenoe
pa11eed against the appellant. The appellant must
now be released forthwith.
A.ppeal allowed.
NAND KlJMAR & OTHERS
ti.
STATE OF RAJASTHAN
(K. C. DAS GUPTA. and J. R. MUDHOLKA.B, JJ.)
Criminal Trial- Retraclld can/~ Oorroboralionnlfkiencr.
The appellants were convicted under 1. 302 Indian Penl
Code and also s. 377 and s. 395 of the Indian Penal Code.
The Trial Court and the High Court had based the Convict
ions on the retracted confessions of each of the 6nt three appellants supported by other circumstances in evidence and o
circumstantial and other evidence in the case of the four!•
appellant. On special leave it was contended that the con
fessions of the first three appellants were not voluntary and
even if voluntarily they were not suff'iclently corroborated by
other circnmstances and that the conviction of the fourth appellant was not based on sufficient evidence.
' Held, 1hat what is sufl'icient corroboration for this purpose
has to be decided in each case on Its own facts and CIJ'Cumstances. It may, however, be generally stated that where the
prosecution by the production of reliable evidence which is
indepcadent of the confaaion and which i1 alto not lainted
..