A.D. Tated, J.
1. This criminal appeal is directed against the judgment and order dated 28th August, 1980 passed by the learned Additional Sessions Judge, Pune, convicting the accused of the offence of murder punishable under section 302 I.P.C. and also of the offence of causing disappearance of the evidence of murder punishable under section 201 I.P.C., and sentencing him on the first count to suffer imprisonment for life and on the second count to suffer R.I. for one year, in Sessions Case No. 197 of 1979. The substantive sentences were ordered to run concurrently.
2. The prosecution case was that the accused married Sindhubai about five years before the date of the incident and during the wedlock a daughter, Sunita, was born and she was aged about three years at the time of the incident. The accused and his wife Sindhubai and daughter Sunita resided in a hut at a solitary place surrounded by hillocks at a distance of about one furlong from Thapevasti in Shirur Tehsil of Pune District. It is alleged that the accused ill-treated his wife since the marriage till the date of the incident, that is, 30th July, 1979. On 30th July, 1979 Mrs. Vatsalabai Abhimanyu Gavane (P.W. 7) -wife of Abimanyu Bajirao Gavane (P.W. 2) and her mother-in-law Yashodabai Bajirao Gavane (P.W. 8) from their Village Danewadi had gone to a dispensary at Shirur for medical treatment to the ailing daughter of Abhimanyu. These two ladies after their work was over at Shirur, in the afternoon left for their Village Danewadi. On the way they went to the house of deceased Sindhubai over a casual visit. Deceased Sindhubai was a cousin sister of Abhimanyu. When they went to the house of the accused, they found the accused sitting in front of the door of his house with his daughter Sunita on his lap and his clothes were seen stained with blood and the blood had fallen on the ground around him. Sunita was dead. The ladies enquired with the accused about the whereabouts of Sindhubai and the accused replied that he had killed Sindhubai by hitting her with a stone on the head and he had also killed his daughter. The accused, frowning at the ladies, threatened them, and thereby the ladies got scared and they ran away. They reached their house at Danewadi at about 8 p.m. and narrated to Abhimanyu what they had seen at the house of the accused and what they had learnt from him. Abhimanyu immediately sent for Karbhari Yeshwant Gavane (P.W. 9), father of deceased Sindhubai, who resided at the Village Pimpalgaon. On the arrival of Karbhari, Abhimanyu, his wife Vatsalabai and mother Yashodabai narrated him the incident. Thereafter Karbhari and Abhimanyu went to the house of the accused. They reached there at about 10.30 p.m. They found the accused sleeping and by his side the dead body of Sunita was lying. They awoke the accused, and when interrogated by them, the accused told them that he had killed Sindhubai by hitting her with stone and also killed his daughter. Karbhari and Abhimanyu caught hold of the accused and tied him with a rope to a nearby babhul tree, lest he might run away. One Namdeo Gore was sent for and he was asked to give company to Karbhari for keeping watch on the accused. Abhimanyu went to Rangangaon and from there he brought Laxman, brother of the accused, to the house of the accused. The situation on the spot was shown to Laxman. Thereafter Karbhari and Abhimanyu went to Tadobachi Wadi to report the matter to the Police Patil, but the Police Patil was not found at his house. Hence both of them went to the police-station at Shirur. They reached the police-station at about 9 or 9.15 a.m. on 31st July, 1979. Abhimanyu lodged the report Ex. 9 and on the basis of the said report the Police Jamadar Gopinath Janardan Deshpande (P.W. 12) registered offence under section 302 I.P.C. against the accused.
3. Police Jamadar Deshpande (P.W. 12) after registering the offence sent some staff members to the scene of offence to bring the accused who was kept there tied to a babhul tree. They brought the accused to the police-station. After preparing the panchanama Ex. 16, the clothes (Articles 11,12 and 13) from the person of the accused and the rope (Article 14) were seized. On the clothes of the accused there were blood stains. The Police Jamadar went to the spot and in the presence of the panchas prepared the spot panchanama Ex. 11 and attached the bloodstained stone (Article 1) and other articles found lying at the spot. He also prepared the inquest panchanama Ex. 12 of the dead body of Sunita and handed over the dead body to a police constable for carrying it to the hospital for postmortem. The Police Jamadar returned to the police-station and in the presence of the panchas interrogated the accused, who agreed to show the place where he had concealed the dead body of his wife. The memorandum of the information given by the accused was prepared. The accused led the police and the panchas to a place at a distance of about one furlong to the east of his house and showed the dead body of his wife Sindhubai which was lying in the streamlet vksgksG covered with a sari. The inquest panchanama Ex. 14 was made. From the place where the dead body was found some stones stained with blood and earth mixed with blood was seized. The dead body of Sindhubai was sent for autopsy. As some injuries were noticed on the person of the accused, he was also sent to the Medical Officer for examination. Dr. Vasudeo Kashinath Umbarker (P.W. 6) held autopsy on the dead bodies of Sunita and Sindhubai and he opined that both of them instantaneously succumbed to the injuries found on their person. The bloodstained stones, clothes and blood-mixed earth were sent to the Chemical Analyser and the report Ex. 33 was received from him. After completing the investigation, charge-sheet was submitted against the accused in the Court of the Judicial Magistrate, First class, Shirur, for the offence under section 302 I.P.C. The learned Magistrate committed the case to the Court of Sessions.
4. The learned Additional Sessions Judge framed charge for the offences under sections 302 and 201 I.P.C. against the accused. The accused pleaded not guilty to the charge and claimed to be tried. His defence was one of denial. He led no evidence in defence.
5. On considering the evidence adduced by the prosecution, the learned Additional Sessions Judge found that the prosecution satisfactorily proved that Sindhubai and her daughter Sunita met with homicidal death, and relying on the extra judicial confession of the accused he held that the accused was responsible for causing the death of them. He also found that the accused caused disappearance of the evidence of murder by concealing the dead body of Sindhubai in the streamlet. On those findings he found that the accused committed offences punishable under sections 302 and 201 I.P.C. and as such he convicted him of these offences and imposed the sentences mentioned above. Feeling aggrieved, the accused has come up in appeal.
6. It is not challenged before us, as there is sufficient evidence on the point, that both Sindhubai and her daughter Sunita on 30th July, 1979 met with homicidal death. The only point canvassed before us by the learned Counsel for the appellant-accused is whether the prosecution satisfactorily brought home the guilt to the accused beyond reasonable doubt. The learned Counsel contends that the conviction of the accused is solely based on the extra judicial confession said to have been made by the accused to Vatasalabai (P.W. 7), Yashodabai (P.W. 8), Abhimanyu (P.W. 2) and Karbhari (P.W. 9). He submits that all those witnesses, being her close relations, had a bias against the accused, as according to them the accused ill-treated his wife Sindhubai. He also submits that the reading of the evidence of Vatasalabai and Yashodabai that the accused confessed to them that he killed his wife and daughter does not inspire confidence, as both of them have improved upon the statements they had made before the police immediately after the incident. Regarding Karbhari and Abhimanyu also, the learned Counsel submits that having learnt from Vatasalabai and Yashodabai that the accused had killed his wife and daughter, it was improbable that these two witnesses would again make inquiries with the accused about the death of Sindhubai and Sunita. According to him, their evidence on the point of extra judicial confession was wholly unreliable. He also pointed out that it was improbable that the accused, in order to cause disappearance of the evidence of murder, would take the dead body of his wife for a distance of one furlong from the place where the incident took place and would throw it in the dry streamlet and at the same time would sit in front of the door of his house with the dead body of his daughter on his lap. According to him, had he really killed his wife and daughter and wanted to cause disappearance of the evidence of murder, he would not have sat in front of the door of his house, keeping the dead body of his daughter on his lap. According to him, it is also improbable that the accused would tell Vatsalabai and Yashodabai that he had killed his wife and daughter. He pointed out that the accused in his examination under section 313 Cri. P.C. candidly admitted all the facts regarding the ill-treatment his wife was having at his hands and also the visit of Vatasalabai and Yashodabai in the afternoon of 30th July, 1979 and the fact that the ladies had inquired with him about his wife and daughter. At the same time he has categorically denied to have stated before those ladies that he killed his wife and daughter with stones. Thus, according to the learned Counsel, the testimony of those witnesses regarding the extra judicial confession could not be safely relied upon.
7. The evidence of extra judicial confession, if found trustworthy, reliable and beyond reproach, can be made basis of conviction. In this connection, a reference may be made to the following passage from the Supreme Court decision in State of U.P. v. M.K. Anthony, : 1985CriLJ493
'However in Pyara Singh v. State of Punjab, : 1977CriLJ1941 , this Court observed that the law does not require that evidence of an extra-judicial confession should in all cases be corroborated. It thus appears that extra-judicial confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test, on the touchstone of credibility, if it passes the test, the extra judicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon.'
On applying the rigorous test indicated by the Supreme Court in the above passage to the evidence of the witnesses who deposed to the extra-judicial confession having been made by the accused, we find that their evidence does not satisfy the test required to be applied for examining the credibility of their evidence. Abhimanyu (P.W. 2), his wife Vatsalabai (P.W. 7). Abhimanyu's mother Yashodabai (P.W. 8) and deceased Sindhubai's father Karbhari (P.W. 9) are all closaly related to the deceased Sindhubai. They also bore a grudge against the accused, as according to them he ill-treated his wife. It is pertinent to note that Vatasalabai and Yashodabai have gone to the extent of saying in their examination-in-chief that the accused threatened them with a knife in his hand and rushed towards them and hence they ran away. During the cross-examination they were contradicted by their police statements recorded soon after the incident wherein they had not stated this fact. Had the accused threatened them with a knife in his hand, they would have certainly stated this fact in their statements recorded by the police immediately after the incident. It clearly indicates that the witnesses have improved on this point and their testimony is far from truth on this point. It may also be mentioned that their evidence during the examination-in-chief regarding the stay of the accused and his wife at their house for about one and a half months before the date of the incident also does not appear to be true. Similarly, their evidence that they had learnt from Sindhubai that she was ill-treated by the accused does not appear to be correct. During their cross-examination they have admitted that the accused and his wife had not resided with them 15 days before the date of the incident and what they learnt about the ill-treatment was from the parents of Sindhubai. When those two witnesses, namely, Vatsalabai and Yashodabai, who had seen the accused first in point of time after the incident, have improved upon their versions and have stated the things which do not appear to have taken place, it is not safe to place reliance on their testimony that the accused told them that he killed his wife and daughter. Regarding the evidence of Abhimanyu and Karbhari, less said the better. According to them, they had learnt from Vatsalabai and Yashodabai that the accused had killed his wife and daughter. Therefore, there was no reason for those witnesses to again question the accused on this point. It is also pertinent to note that had the accused really killed his wife and daughter and told about it to Vatsalabai and Yashodabai in the afternoon, he would not have slept on that night keeping the dead body of his daughter by his side. It is improbable that a person who commits crime and in order to screen himself from punishment also tries to cause disappearance of the evidence would sleep keeping the dead body of his daughter by his side, and when Abhimanyu and Karbhari arrived and awoke him from sleep would tell them that he himself killed his wife and daughter. Thus, on close scrutiny of their evidence, we do not feel safe to place reliance on their evidence that the accused confessed before them that he killed his wife and daughter. Consequently, we must exclude the evidence of extra-judicial confession from consideration in this case.
8. Having excluded the evidence of extra-judicial confession, we do not find any other clinching and reliable evidence to connect the accused with the crimes. Besides the extra-judicial confession, the prosecution relied on three circumstances to connect the accused with the crime. The first circumstance is that the accused on 31st July, 1979 when interrogated by Police Jamadar Deshpande (P.W. 12) gave out that he had kept concealed the dead body of his wife and that he would show the place where he had concealed her dead body and that he took the police and the panchas to a streamlet at a distance of one furlong from his hut and there in the streamlet the dead body of Sindhubai was found lying covered with a sari. Exhibit 13 is the memorandum of the information given by the accused and Exhibit 13-A is the panchnama whereunder the dead body was found at the instance of the accused and taken possession of by the Police Jamadar Deshpande. Jijaba Deoram Pacharane (P.W. 3) is the panch in whose presence the accused is said to have given the information recorded in the memorandum Ex. 13, and he led the police and the panchas to the place where the dead body of Sindhubai was kept concealed. The evidence of Jijaba shows that the dead body was not visible without peeping into the streamlet. As the place where the dead body was lying, the earth was found stained with blood. The dead body, though was found in the streamlet, was not concealed by covering it with some material. Any person going near the streamlet could see the dead body lying there. According to the prosecution, the assault on deceased Sindhubai took place opposite the hut of the accused, and after she succumbed to the injuries inflicted on her, her dead body was removed to the streamlet and placed there. There is no trail of blood indicating that the dead body was removed from the hut of the accused to the streamlet. On the evidence on record, it is not possible to know as to how the dead body was removed from the scene of offence to the streamlet. It is improbable that the accused would be able to carry the dead body to the streamlet without leaving signs of dragging or trail of blood on the track. It is improbable that Karbhari (P.W. 9) father of deceased Sindhubai, and Abhimanyu (P.W. 2) on knowing about the death of Sindhubai at night did not make any search for her dead body. Before going to the police-station the dead body could have been found on searching the area round about the hut of the accused. It is difficult to believe that the accused gave the information recorded in the memorandum Ex. 13 and on the basis of the said information the police could recover the dead body of Sindhubai. Consequently, we are unable to place any reliance on the evidence of recovery of the dead body on the information given by the accused. Even otherwise, that circumstance is not incompatible with the innocence of the accused. It may be that the accused might have known where the dead body of his wife was lying and, therefore, he gave out the place where the dead body of his wife was lying, it is not possible to believe that he carried the dead body and concealed it at the streamlet, and as such this circumstance does not in any way help in proving the prosecution case.
9. The next circumstance relied upon by the prosecution is that the clothes of the accused were found stained with human blood and some bloodstained stones and earth were found opposite his hut. Admittedly the accused was seen sitting with the dead body of his daughter Sunita on his lap outside his hut when Vatsalabai (P.W. 7) and Yashodabai (P.W. 8) approached him on 30th July, 1979 in the afternoon. The daughter Sunita had bleeding injuries and she had died on account of those injuries. The accused also had injuries noted in the certificate Ex. 23 and two of them were incised. Therefore, the clothes of the accused are bound to be stained with human blood. The sari and the ribbon seized from the deceased and also the clothes of the accused were found stained with blood of `A' Group vide Chemical Analyser's report Ex. 33. From the mere fact that blood of the same group as that of his deceased wife was found on the clothes of the accused, it cannot be inferred that he had caused the death of his wife. As stated earlier, there was no attempt on the part of the accused to run away from his house even after Vatsalabai and Yashodabai had seen him sitting with the dead body of his daughter on the lap in the afternoon of 30th July, 1979. He was also found sleeping on that night with the dead body of his daughter Sunita by his side when Abhimanyu (P.W. 2) and Karbhari (P.W. 9) had been to his hut during the night. This conduct of the accused is not incompatible with his innocence, and from the mere fact that blood of the same group as that of the deceased was found on the clothes of the accused it cannot be legitimately inferred that he must have committed the crime.
10. It is true that the family of the accused consisted of himself, his wife Sindhubai and their three-year old daughter Sunita. Their house was in a solitary place surrounded by hillocks and at a distance of about one furlong from Thapevasti. The accused was found with the dead child Sunita. His clothes were found stained with blood. His wife was also found murdered and thrown into the streamlet and the accused, instead of reporting the matter to the Police Patil or the police, was found sitting with the dead child at his house and also on the night he was found sleeping, keeping the dead body of his child by his side. Thus the conduct of the accused appear to be very strange and raises a grave suspicion about his complicity in the crime; but suspicion, however grave it may be, cannot be made basis of conviction. On the evidence on record, it is not possible to conclude beyond reasonable doubt that the accused and no one else committed the crime. Consequently, we find that the guilt is not brought home to the accused beyond reasonable doubt and the accused is entitled to the benefit of the doubt.
11. In the result, the appeal is allowed. The conviction of the appellant-accused under sections 302 and 201 I.P.C. and the sentences awarded to him by the learned Additional Sessions Judge are set aside and he is acquitted of both the charges. He shall be set at liberty if not-required in any other case.