Judgment :- Thomas, J. The story of a bride who died in her husband's house within four months of her wedding is unfurled in this case. It was first thought to be suicide, but later found to be murder. Her husband's brother (1st accused) was indicted for the murder while her husband (2nd accused) and mother-in-law were charged for giving false information regarding the murder. Trial court convicted first accused under Ss.302 and 201 of the Indian Penal Code and sentenced him to imprisonment for life and rigorous imprisonment for three years respectively while 2nd accused was convicted of S.201 and was sentenced to rigorous imprisonment for three years. Their mother was acquitted. Hence, this appeal by the convicted accused. 2. A conspectus of the prosecution story is the following: Marriage between Jayalakshmi (deceased) and Santhakumaran (A2 ) was solemnised on 19-11-1987, and the couple lived thereafter in the husband's house at Palakkad. There are two buildings situated in the same compound, one a new building and the other an old one. All the inmates were residing in the new building. The family consisted of father, mother, and three sons, among whom the youngest is the 1st accused who is a bachelor. Eldest was do'ng business at Ernakulam and his wife Sudha (PW6) was staying along with her husband's parents in the new building. 2nd accused and his wife used to sleep in the old building. 3. Some time after marriage of the deceased, A1 started looking at her with leering eyes and made libidinous overtures Howards her, but she had spurned them then and there. However, she told it to her sister Kunhilakshmi (PW.3), who in turn, divulged it to her mother Sulhadra (PW.2). Eventually her husband was informed of this. He assured that he would see that 'it would not be repeated. 4. The fateful day was 14-3-1988. At some time between 10.30 and 11.30 on the morning where all the other male members were away, A1 sneaked into the old building and made amrous advances towards Jayalakshmi who happened to be there then. When she resisted such pranks, he became wild and then he strangulated her with a compressed sari cloth and caused her death. 4. Jayalaksbmi's husband (2nd accused) and his mother (3rd accused) who came to know of it decided to hush it up. When she resisted such pranks, he became wild and then he strangulated her with a compressed sari cloth and caused her death. 4. Jayalaksbmi's husband (2nd accused) and his mother (3rd accused) who came to know of it decided to hush it up. Thereupon, all of them made it out to others that Jayalakshmi committed suicide by hanging. A tinker (PW.4) who passed by that side was called and for a make-believe, he was asked to climb on the roof of the building and ;o remove the tiles to get inside the old building. 5. When Jayalakshmi's father (PW.1) was told that she was in serious condition, he rushed to the place along with his wife and saw her dead body lying on a sofa in "portico room" of the old house. As he was made to believe that Jayalakshmi committed suicide by hanging, he went to the police station and gave Ext.P1 First Information Statement at 5.30 P.M. An FIR was registered by the police on its basis for "unnatural death". Inquest was held by the Executive Magistrate (the Local Tahsildar) during which accused 1 and 2 reiterated that Jayalakshmi committed suicide by hanging. It was taken by all concerned that Jayalakshmi's death was a case of suicide. 6. The turn in the tide took place with the arrival of the Assistant Director of Forensic Science Laboratory, Thiruvananthapuram (PW.12) at the scene on 20-3-1988. He made a meticulous inspection of the building wherein Jayalakshmi died. He collected a few clothes from a bundle kept in one of the room. These clothes were subjected to scientific tests in the Forensic Science Laboratory, Trivandrum. Deputy Superintendent of Police (PW.29) who took over investigation arrested all the three accused on 20-3-1988. 7. Learned Sessions Judge has enumerated in the judgment all the circumstances relied on by the prosecution. After referring to the points stressed by the defence counsel he concluded "without any vacillation of mind" that those circumstances established beyond reasonable doubt that death of Jayalakshmi was not suicidal, but homicidal and that it was the first accused who caused the death by strangulation. He also found that A1 and A2 together concocted the false story that Jayalakshmi committed suicide. 8. He also found that A1 and A2 together concocted the false story that Jayalakshmi committed suicide. 8. We may point out, at this stage itself, that learned Sessions Judge has relied on certain materials which are totally inadmissible in evidence, eg: He relied on the statements made by two witnesses before Judicial Magistrate of the Second Class who recorded them under S.164 of the Code of Criminal Procedure (for short 'the Code'). It is well settled that the statement of a witness recorded by a Magistrate under S.164 of the Code is not substantive evidence and the most that can be used of it is only for corroboration of the testimony of that witness as provided in S.157 of the Evidence Act or for contradicting the witness in the manner provided in S. 143 of the Evidence Act (State of Delhi v. Shri.Ram Lohia (AIR 1960 SC 490), Ram Kishan v. HarmitKaur (AIR 1972 SC 468) and Sawal Das v. State of Bihar (AIR 1974 SC 778). We shall endeavour to eschew materials which are inadmissible in evidence though a lot of them have crept in evidence. This being a case of circumstantial evidence, the circumstances should be cogently established and such circumstances should cumulatively form a complete chain leading to the irresistible conclusion that within all human probabilities the murder was committed by the first accused and none else. First point to be decided is whether Jayalakshmi's death could have been due to strangulation or it should necessarily have been a case of hanging. PW.26, Assistant Professor in Forensic Medicine at Medical Collge, Thrissur, had conducted the autopsy on the dead body c f Jayalakshmi. He narrated in the Post Mortem Certificate the following features noted on the body. "A grooved pressure abrasion, 12.8 x 1.4 c.m. on front and right side of neck, oblique, noncontinuous with left upper end 2 cm. below and in front of left angle of lower jaw bone, at 8 O'clock position and right end 6.5 cm. Vertically below right mastoid piocess and running over thyroid cartilage. Abrasion 1 x 0.2 cm. parallel to and 0.5 cm. below the aforesaid abrasion on middle of front of neck, Rap dissection of neck under bloodless field showed pale and firm subcutaneous tissue underneath the ligature mark. Vertically below right mastoid piocess and running over thyroid cartilage. Abrasion 1 x 0.2 cm. parallel to and 0.5 cm. below the aforesaid abrasion on middle of front of neck, Rap dissection of neck under bloodless field showed pale and firm subcutaneous tissue underneath the ligature mark. Hyoid bone, cartilages, soft tissues and vertebrae were in tact." Doctor also noted a reddish kukum bindi at the middle of the forehead; the finger nails were grown for 0.02 cm. from tip with corners chipped and brownish red nail polish was applied on all nails, her hairs was braided in three layers using rubber bands and slides. Oblique salivery dribble mark was noticed flowing downwards on the left side of chest from root of neck 2 cm. out of midline. 9. A. PW.26 opined that death of Jayalakshmi could be due to partial hanging. He said that, on account of advanced stage of decomposition, he cannot totally rule out the possibility of ligature strangulation. But a greater expert in Forensic Medicine was examined by the prosecution as PW.27 (Dr.Kandaswamy, who was Director and Professor of Forensic Medicine in Kerala State and who was Medico Legal Adviser to Government of Kerala, he was also a Visiting Professor in Forensic Medicine at Los angales ). He said that with the data available from the post mortem certificate, he is of the definite opinion that deceased in this case haddied as a result of constrictive force applied around neckby a ligature. Dr. Kandaswamy ruled out the possibility of complete suspension as well as partial hanging. He gave sturdy reasons to support his opinion. According to him in the usual style of suicidal hanging (whether it is complete or partial) ligature mark would be running towards the knot and in the case of partial hanging, he would expect the ligature mark to be found on the sides running in upward direction due to the pulling down of the body .He ruled out the possibility of even partial hanging by using a noose around neck as described in this case because of the presence of "second abrasion" in the manner described in Ext.P17. Such a second abrasion, according to him, would have been caused by the deceased while trying to free her from the compulsion applied on the neck as the finger naiIs with chipped corners would have come into contact with that part of the neck. Such a second abrasion, according to him, would have been caused by the deceased while trying to free her from the compulsion applied on the neck as the finger naiIs with chipped corners would have come into contact with that part of the neck. He refused to believe that noose of a sari would cause such a second abrasion. Even if a sari can cause such an abrasion, he opines that slipping would invariably occur upwards in such cases whereas the second abrasion was noted below the ligature mark in this case. 10. In our view, the reasons given by Dr.Kandaswamy are very cogent and sturdy in coming to his conclusion. We have, therefore, no hesitation in finding that death of the deceased would be due to ligature strangulation. Of course, we must bear in mind that this finding is based on the opinion of an expert, and it is not correct to reach a conclusive finding entirely based on such opinion. 11. Hence the question is whether death was really due to ligature strangulation. From the evidence, we did not get even a hint that deceased had any cause of frustration in her life or that she ever contemplated the idea of committing suicide. Their married life was described by all concerned including the deceased as quite happy. The way she dressed up her hair, polished her nails, applied kumkum bindi on the forehead (as noted in the post mortem certificate) are not suggestive of any desire to end the life. Of course, her father (PW.1) told the police Fust that she would have committed suicide. That was solely because he was brain washed to believe that she committed suicide. If must be borne in mind that it was the same father who put forward the present version when he got the slightest hint that death might not have been due to suicide. 14. Be that as it may, prosecution or the defence could not mirror the wobbling of a frail mind which may reach a stage of tailspin on a spur of moment. Hence, mere absence of any ostensible reason may not be sufficient to conclusively say that she had not committed suicide on any account. 15. We have, therefore, to consider other circumstances to decide whether death was certainly due to ligature strangulation. 16. Hence, mere absence of any ostensible reason may not be sufficient to conclusively say that she had not committed suicide on any account. 15. We have, therefore, to consider other circumstances to decide whether death was certainly due to ligature strangulation. 16. In the inquest held by the Executive Magistrate, accused 1 and 2 told him that deceased committed suicide by hanging. They showed the Magistrate a cow-dung coloured polyster sari (in two pieces - marked as M.O.3 series) saying that it was with the said sari that they found Jayalakshmi hanging on a hook inside the room pointed out by them. They also told the Magistrate that they carried down the dead body after cutting the said sari. The saree, blouse and skirt which the magistrate found on the dead body are M.O.1, M.O.2 and M.O.6 respectively. Cellophane tapes were used to extract epithelium from ligature mark, as well as fingers of the death body. 17. A question which incidentally arises is regarding the use of the statement recorded by the Executive Magistrate in Ext.P5 inquest report. Both appellants (A1 and A2 ) have given separate statement before the Magistrate who reduced it in writing in Ext.PS. If such a statement was recorded by a police officer, whether in the inquest 'report or not, it cannot be used in the trial for any purpose in view of the ban contained in S.162 of the Code, except for the limited purpose of contradicting the witness. But the prohibition contained in S.162 of the Code has no application to the statement recorded by a Magistrate under S.176 of the Code. Sub-section (1) of S.176 empowers the Magistrate to hold enquiry into the cause of death in certain circumstances. Subsection (2) enjoins on him a duty to record the evidence taken by him during such enquiry. When the person who made such statement subsequently becomes an accused, there is no legal hurdle in using the same if it is otherwise relevant. S.5 of the Evidence Act makes the conduct of an accused a relevant fact, if such conduct was influenced by any fact in issue or relevant fact whether it was previous or subsequent thereto. When the person who made such statement subsequently becomes an accused, there is no legal hurdle in using the same if it is otherwise relevant. S.5 of the Evidence Act makes the conduct of an accused a relevant fact, if such conduct was influenced by any fact in issue or relevant fact whether it was previous or subsequent thereto. However, Explanation I excludes a statement from the purview of conduct: It reads: "The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statement under any other Section of this Act". A reading of the explanation shows that it is subject to one exception. Statements which accompany and explain acts other than statements are made relevant notwithstanding exclusion of statements generally. The position is made further clear through illustration (e) to the Section. It reads thus: "(e) A is accused of crime. The facts that, either before or at the time of or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have witnessed, or suborned persons to give false evidence respecting it. are relevant". K,R.-CHELLAPPAH ADVOCATE When the indicted person provided evidence to save himself from the crime, such evidence is admissible and relevant under S.8. In an early decision, a Division Bench of Patna High Court in Lalji Dusadh v. Emperor (AIR 1928 Pat. 162) held that a statement made by an accused before a Magistrate though he was sent up under S.164 of the Code, was admissible as evidence of conduct. Supreme Court has held in Golam Majibuddin v. State of W.B. (1972 Cr1.Q.1342) that evidence of false explanation given by an accused is relevant under S.8 of the Evidence Act, as the same was designed to give an appearance favourable to him. Here the statement of the accused contained in Ext.PS inquest report is not one of explaining any statement as such, but it was accompanying and explaining their act of producing two pieces of sari before the Magistrate. Further, the statement was designed to give an appearance favourable to them. Here the statement of the accused contained in Ext.PS inquest report is not one of explaining any statement as such, but it was accompanying and explaining their act of producing two pieces of sari before the Magistrate. Further, the statement was designed to give an appearance favourable to them. We are of the view that such statement is admissible for showing the conduct of the accused. 18. The theory that Jayalakshmi was found hanging on the hook with M.O.3 sari stands shattered lock stock and barrel with the following circumstances: (1) The Assistant Director, Forensic Science Laboratory (PW.12) could not find, in spite of scientific tests any trace of urine or faecal matter anywhere on the floor or on other materials kept in the room. (2) The sari (M.O.7), the underskirt (M.O.6) the white Dhoti (M.O.18) and the bed sheet (M.O.19) which were collected by P.W.12 from the bundle (a: they were slinking with smell of urine) were found drenched with urine when c chemical tests were conducted on them at the Forensic Science Laboratory. (3) We have no doubt that deceased must have been wearing M.O.7 sari when she died because the cellophane tapes impressed on the finger? showed cotton fibres which are exactly similar to the cotton fibres of M.O.7. However, we agree with the defence counsel that wearing M.0.7 sari then is not an incriminating circumstance against the accused. Its use is to find that deceased would have passed substantial quantity of urine when she was suffering from death paras. (4) The Assistant Director, Forensic Science Laboratory was not able to truce out even an atom of the fibres of M.0.3 sari either on the neck or on the palrhs of the dead body or of the hook on which Jayalakshmi was alleged to have hanged. This is definitely indicative that the version of the accused before the Executive Magistrate that Jayalakshmi was found hanging on M.O.3 sari is a falsestory, (5) There is a positive circumstance to prove that the cloth with which the ligature mark on her neck was caused was actually M.O.8 sari (that sari was picked up by P.W.12 from the same bundle). Fibres of M.O.Ssari were found sticking on the ligature mark. M.O.I 2 cellophane tapes impressed on the ligature mark contained such fibres when scientific tests were made. Fibres of M.O.Ssari were found sticking on the ligature mark. M.O.I 2 cellophane tapes impressed on the ligature mark contained such fibres when scientific tests were made. Ext.PIO report of the Assistant Director shows that "while cotton fibres, few rose coloured, few white coloured and few brown coloured cotton fibres were found sticking on those tapes. (M.O.8 sari is white in colour with rose and brown coloured designs). 19. The most formidable circumstance which conclusively establishes that M.O.8 sari was used as a ligature, is the finding of the Assistant Director of Forensic Science Laboratory during scientific tests that numerous epithelial cells and human piles were adhering to the creases of the folds of M.O.8 saree which are similar to the fibres contained on the cellophane tapes impressed from the ligature mark. 20. Learned counsel for the appellant launched a massive onslaught on the aforesaid circumstance criticising the manner in which the material objects weve preserved and forwarded to the Sub Divisional Magistrate. Counsel pointed out that they were not kept in a sealed cover but were left with the Sub Inspector of Police (P.W.28) who kftpt them in the police station. Evidence shows that the materials collected by the Executive Magistrate as well as Assistant Director of Forensic Science Laboratory were entrusted to the Sub Inspector (P.W.28) who packed them in an envelope which was fastened up with gum. They were produced before Sub Divisional Magistrate as per Ext.P21 list. 21. Learned counsel contended that there is no guarantee that articles analysed in the laboratory were those collected by the said two witnesses. Learned counsel in support of the contention cited the following decisions before us (Mahmood v. State of U.P., 1976 SCC (Crl.) 72; The State v. Motia, AIR 1955 Raj, 82; State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314; Madan Singh v. State of Rajasthan, 1979 SCC (Crl.) 56 and Baldev Singh v. State of Punjab (1990) 4 SCC 692). We do not think it necessary to reproduce extracts from those judgments because in all those decisions the manner of packing or forwarding the articles created doubt in the mind of the court on me facts and circumstances of those cases. None of those decisions lays down a principle of law that failure to affix seal on the packet containing material objects would necessarily lead to the consequence of vitiating the report of the analyst. None of those decisions lays down a principle of law that failure to affix seal on the packet containing material objects would necessarily lead to the consequence of vitiating the report of the analyst. 22. When the investigating officer packs and forwards material objects he is doing official acts. We are inclined to presume that-they were regularly performed by the officer. There is no statutory provision which prescribes any particular mode for such packing etc. The legal aid for drawing a presumption, as illustrated under S.114 of the Evidence Act, can be used even in respect of official acts adopted during investigation of crimes. Nor are we inclined to presume that investigating officers, being interested in the prosecution, would tamper with materials which remained in their custody and concoct such materials to bring the case to conviction. It would not be a proper judicial attitude to start with distrust or suspicion against investigative exercises made by public officers. Nor it be a healthy approach to presume that whenever there is any opportunity, the investigating officers would manipulate or tamper with material objects dishonestly. Any such attitude, if adopted by judicial functionaries, would run down the guts and gumption of the police administration and erode the morale of the investigating agencies. (vide Raja Khima v. State of Saurashtra, AIR 1956 SC217 and State of Kerala v. MM. Mathew (1978 (4) SCC 65). 23. From the aforesaid circumstances, we can definitely come to the conclusion, without any hesitation, that Jayalakshmi was murdered by strangulation using M.O.8 sari as ligature. 24. Sri. Sukumaran Nayar contended that the theory of homicide is totally inconsistent with the testimony of PW.4 (a tinker whose services were availed of by the accused to remove some tiles from the roof of the building). True learned Sessions Judge remarked that "the natural and in aritificial testimony of PW.4, the tinker, makes a mistery more enigmatic". The gist of the testimony of PW.4 is this: Around 12 noon accused called this man (who was passing through the road) and requested him to forcibly open one of the doors since all the doors were bolted from inside. PW.4 climbed on the roof and removed a few tiles and stepped down into the southernmost room and opened the door from inside. Later lie restored the tiles and was allowed to go away. 25. PW.4 climbed on the roof and removed a few tiles and stepped down into the southernmost room and opened the door from inside. Later lie restored the tiles and was allowed to go away. 25. No doubt testimony of PW.4 is prima facie a circumstance favouring the theory of suicide. If A2 availed himself of the services of PW.4 genuinely then this item of evidence has the potency to make a dent on the edifice of the prosecution version. His evidence was sought to be diluted by Shri.M.K. Damodaran, Advocate (who also argued with permission since he was appointed as Special Public Prosecutor to conduct the trial) by contending that it was only a drama which the accused enacted to impress upon the neighbours that the doors were bolted by the deceased from inside. 26. We notice two indications suggesting that PW.4 was called only to create a make-believe. First is that when PW.4 pointed out to the accused that the door of the portico remained opened no satisfactory answer was given to him, but he was asked to climb on the roof. Second is that the defence has completely disowned PW.4 and term.' his testimony as false during cross-examination. Why did the accused fear that PW.4 would damage their version? Considering all aspects of PW.4's testimony we arc persuaded to think that accused called him and asked him to remove the tiles to impress upon the close neighbours that deceased had bolted the doors from insicie. 27. Having found that deceased was murdered, our next task is to find whether it was 1st accused who did the crime. Prosecution definitely alleges that it was 1st accused who did it. The following circumstances cumulatively point to 1st accused as the culprit. 28. No outsider would have murdered Jayalakshmi. There is absolutely no indication in evidence that anybody had done it for gain. Deceased had valuable ornaments, but none of them was lost and even the accused have no case that any valuables were missing from the house. No one else had any hostility towards Jayalakshmi. 29. Next circumstance is that 1st accused was the only male member present in the house during the time when deceased would have been murdered. (This is admitted by him even during the inquest held by the Executive Magistrate). No one else had any hostility towards Jayalakshmi. 29. Next circumstance is that 1st accused was the only male member present in the house during the time when deceased would have been murdered. (This is admitted by him even during the inquest held by the Executive Magistrate). another circumstance is that among all the inmates of the house, the only one who could possibly have any animus towards the deceased was 1st accused. This can be clearly discerned from the testimony of PWs.1 to 3 (father, mother and sister of Jayalakshmi). Their evidence shows thai the deceased told hersister that 1st accused was oglingher often and that news reached Jayalskshmi 's husband on 13-3-1988 evening. Learned Sessions Judge drew an inference that Jayalakshmi's husband would certainly have asked A1 about it either on 13th night or on the 14th morning. A1 would, have felt much humiliated and insulted at this disclosure. That would have made him to stretch his talons at her in retaliation. 30. A1 had a lacerated wound 11/2 cm. x 1/4 cm. skin deep on palmar aspect of his right wrist with an abrasion of 3 cm. length. A1 told the doctor (PW.25) that he sustained the injury from "glass pieces six days back". At the time of inquest, A1 told the Executive Magistrate that "when he could not contain the grief of his sister-in-law committing suicide, he hit his hand on the glass framed photos of Gods kept in the prayer room". There is no doubt that he sustained the said injury on the date of occurrence. But his explanation that he hit his hand on the glass as he could not contain the grief of his siter-in-law committing suicide, is clearly false. PW.25 said in his opinion that the " aforesaid injury could have been caused when that part of the hand came into contact with the leaf of a fan (A table fan was found in a toppled condition in the room where the incident is alleged to have happened). Whatever it be, the explanation given by A1 regarding the injury was absolutely false. 31. The most clinching circumstance against A1 is that he told the Executive Magistrate that he saw Jayalakshmi hanging on the hook with M.O.3 saree which is proved to be false. He gave such u false version to absolve him from his complicity. 32. Whatever it be, the explanation given by A1 regarding the injury was absolutely false. 31. The most clinching circumstance against A1 is that he told the Executive Magistrate that he saw Jayalakshmi hanging on the hook with M.O.3 saree which is proved to be false. He gave such u false version to absolve him from his complicity. 32. The above circumstances concatenate into a chain so complete that an irresistible conclusion can be drawn that it was A1 who had strangulated Jayalakshmi to death. 33. Next question is whether A2 had committed the offence under S.201 of the Indian Penal Code. It is sine qua non for the said offence that the person must have known or had reasons to believe that an offence has been committed. But, prosecution has not proved that 2nd accused knew that his wife was murdered. It is possible that A2 would have believed the version of A1 that Jayalakshmi committed suicide. If A1 had told his brother that he murdered the latter's wife, it is difficult to believe that A2 would have immediately taken all precaution to save his wife's murderer. Perhaps, a change in A2's attitude could be brought about through persuation, but it would take at least some days. We entertain a reasonable doubt whether A2 would have really known that his wife was murdered either by his brother or anyone else. We are inclined to give the benefit of that doubt to 2nd accused. In the result, we confirm the conviction and sentence passed by the trial court on A1 in respect of both offences. But, we set aside the conviction and sentence passed by the trial court on A2 and acquit him.