Judgment

VENKATARAMA AYYAR, J.: This is an appeal by special leave against the judgment of the High Court of Allahabad confirming the conviction of the appellant under Section 302, I.P.C. and the sentence of death passed on him by the Sessions Judge, Unnao. The charge against the appellant was that on the night of 26th May 1952 he murdered his father, Manna and his stepmother, Kailasha. There was no direct evidence connecting him with the offence. The only question is whether the circumstantial evidence in the case is sufficient to sustain the conviction.

2. The appellant had become divided from his father some four years prior to the occurrence, and was living, apart in another house separated from that of his father by a gonad. On the morning of the 27th May 1952 both Manna and Kailasha were found dead lying amidst blood with multiple injuries on their bodies. The matter was reported to the chaukidar, P.W. 1, who made the first information report, Exhibit P-1. Therein he stated:

"Bitter feeling existed between Manna and his son Ram Bharosey since long. I think that Ram Bharosey certainly has his hands in this murder."

The station officer, P.W. 18, went to the scene at about 7-30 a.m. and prepared the inquest reports. The appellant who was missing from his house was arrested by the constable P.W. 13, while going to a village called Gonda and brought back to the place. He was then wearing a dhoti which was blood stained. That was seized, and is Exhibit VII in the case. On being interrogated by P.W. 18, the appellant took him to his house, went into the bhusa kothri , brought out from it three silver ornaments, a taria a pacchela and kare, and a gandasa, and delivered them to him. They were all blood-stained.

These articles were sent to the Serologist for examination, and he reported that while the blood on the pacchela had disintegrated and could not be identified, that on the taria, kare and gandasa was human blood. (Vide Exhibits P-28, items 100, 101, 102 and 107). After further investigation, the police charge sheeted the appellant under Section 302, I.P.C. and the Court below have held that the evidence, though circumstantial, was sufficient to convict him.

3. The correctness of this conclusion was assailed by the appellant firstly on the ground that inadmissible evidence had been admitted, and that that had vitiated the finding; and secondly on the ground that there had been misdirections in the appreciation of certain pieces of evidence, and if they were excluded, there was not sufficient legal evidence to convict the appellant. The first contention has reference to certain statement which the appellant is alleged to have made to his wife. She was examined on behalf of the prosecution as P.W. 2, as she deposed as follows.

" I awoke in the morning and saw that my husband was coming down the roof. Thereafter he went inside the Bhusa Kothri. He came out of the Bhusa Kothri and had a bath on the nabdan after becoming necked. After this he wore on the same dhoti, which he was wearing before taking his bath. He sat at home after his bath and said to me that he would give me Chail Choori, Laccha Kara and Zangir.......... I had asked him where he had gone at about moonhandherey , and he replied that he had gone to the middle house in order to get cheez."

The middle house referred to in this deposition is the house in which Manna was living. The argument of the appellant is that his statements to P.W. 2 that he would give her jewels, and that he had gone to the middle house to get them were inadmissible under Section 122 of the Evidence Act, being communications made to his wife. This is plainly so, and the Courts below ought not to have taken this evidence into consideration

4. It was next argued that the learned Judges had misdirected themselves in holding that the fact that the dhoti which the appellant was wearing at the time of his arrest was blood-stained was proof that he had participated in the crime. It was contended that bef