M.R. Waikar, J.
1. This appeal is preferred by the original accused No. 3-Raghunath having been convicted of the offence punishable under section 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life, by the Additional Sessions Judge, Beed (Shri S.S. Waholikar).
2. The facts are very few and simple. Those which are undisputed and well-high established, as these; Deceased Pandurang was a lame person. Sushila was the widow of a rich agriculturist owning about 75 acres of land, resident of village Dhanora. Padmini was her-co-widow and their relations were strained as is usual between co-widows, possessing property. Deceased Pandurang was the Mukhtiyar of Sushila who used to look after the litigations and her property. This appellant-Raghunath was the servant of Sushila. Pandurang, during the relevant period, used to visit Rajewadi to attend the recitals of Ramayan every day between 8.00 and 10.00 p.m. Rajewadi is about 2 to 3 furlongs from Dhanora. Sushila also used to go with him for Ramayan recitals but on 24-6-1975, she abstained, being in menses. Pandurang alone went accompanied by his servant, i.e. the present appellant, riding a mare as he was lame. Thereafter Pandurang was never seen alive or dead by any one. At mid-night the appellant returned alone with the mare to Dhanora and on being asked by Sushila, he told her that Pandurang left with two persons in a tanga to Manjlegaon asking him to carry the mare and to come to village Nitrud the next day. The next day, he did go to Nitrud with the mare as directed, but Pandurang was not there and he returned. Sampat (P.W. 1) is the brother of deceased-Pandurang and Sushila and resides at village Veeda. About a fortnight after 24-6-1975, Sushila visited Sampat and told him that Pandurang was missing since last Tuesday. Sampat moved about in search of his brother but in vain. He then visited the Police Station in on 18-7-1975 and lodge a complaint at Exhibit 34. In this report, he expressed his suspicion on this appellant and four other persons, not on accused (sic) Nos. 1 and 2.
3. It may be mentioned here that Sampat never stated that he had contacted his appellant after he was approached by his sister and before he lodged this complaint. Curiously enough, the complaint recites that as deceased Pandurang and this appellant were proceeding towards Rajewadi, two persons wearing white clothes and caps going in a tanga met them. Those persons asked Pandurang to accompany them but Pandurang asked them to come to his house for tea but those persons declined and at their request, Pandurang accompanied them in the tonga. It was also stated that Pandurang, while going, had asked the appellant to come to Nitrud the next day with the horse. The next day, the appellant had gone to Nitrud as directed but Pandurang was not there. Now, at whose instance such an account was incorporated in the complaint by him, is not explained by Sampat in his evidence. However, this account to be found in the complaint of Sampat substantially tallies with the account as stated by Sushila in her evidence.
4. Deceased Pandurang could never be traced out, nor his mortal remains, nor his corpse or the clothing or any articles last worn by him. At last, this appellant with two more persons Sahebrao and Jyotiba came to be arrested on 14-6-1976 and sent up for trial.
5. During trial also, this appellant adhered to the very same version in his examination under section 313 of the Code of Criminal Procedure, that Pandurang parted his company on the way and voluntarily went away with two persons in a tonga, directing him to come to Nitrud the next day with the horse.
6. Besides the above evidence, the prosecution relied upon the confessional statement of the appellant made by him before the J.M.F.C., Shri Hotkar (P.W. 8), which has been now retracted by the appellant during trial. In this confessional statement at Exhibit-23, what the appellant had stated was that accused No. 2-Joytiba met them on the way. He pulled Pandurang from the horse-back by holding his neck. Pandurang asked him to run. An he was near Pandurang, accused No. 1 Sahebrao threatened him that he would be dealt with in the same fashion. Jyotiba put Pandurang in the tonga and took him away forcibly,. He ran away being frightened. The appellant stated that he made such a statement under duress and coercion of the police.
7. The learned Additional Sessions Judge very heavily relied upon the retracted confessional statement and the subsequent conduct of the appellant is basing the order of conviction by writing a very lengthy judgment. The gist of his reasoning is this :
(1) There was, no doubt, clear motive established by the prosecution which should have prompted the appellant to commit this crime.
(2) His subsequent conduct destroys the presumption of innocence.
(3) He allowed the handicapped person to be so taken away in that fashion by those persons.
(4) After Pandurang was so abducted, he went to Rajewadi and informed Atmaram (P.W. 7) that his master would not come for Ramayana as he had gone to Manjlegaon in a tonga.
(5) He went there so that the culprits, who had taken away Pandurang, should get sufficient time to dispose him of and the persons from Rajewadi should not come to Dhanora to enquire about Pandurang.
(6) His behaviour was of a treacherous undutiful servant.
(7) In so acting, his positive motive was to deprive Sushila, who was a widow, of the Counsel and assistance of Pandurang in whom she trusted and was an asset to her, so as to render her all the more helpless.
(8) Deceased was last seen with the accused.
(9) The confession given by him which is proved to be voluntary, is itself inculpatory and it requires no more incriminating circumstances.
(10) The fact of death can be proved by circumstantial evidence and failure on the part of the prosecution to recover the dead-body will not indicate that there was no murder.
(11) It does not require any man of great prudence to know that must have happened to Pandurang.
(12) Appellant readily contributed his part of the design, whereby he allowed Pandurang to be taken away by force and further tried to keep this fact screened for a pretty long time to screen the real offenders from the process of law.
8. Now, addressing ourselves first to the basic issue, whether Pandurang met with a homicidal death, the main circumstance relied upon is that the deceased was last seen with the appellant. It is true the corpus delicti can be proved also by circumstantial evidence, but the circumstances must be such as should render the fact of human killing beyond reasonable doubt. Granting of the nonce, the version that Pandurang was so abducted by two persons in a tonga to be true, in the absence of anything else, does this bare circumstance render the inference of his being murdered irrefutable? In other words does it strictly dovetail the only inference that he has met with a homicidal death? Can the possibility of his being alive or being detained or transported or dying natural death completely be ruled out. The absence of corpus delicti is a circumstance which make it all the more necessary for courts to proceed with greatest care and caution before pronouncing a finding of homicidal death. There are cases, no doubt, where a finding of homicidal death can safely be given, even though no trace of dead-body is found. The learned Judge, as pointed out above, could do no more then hark the prudent man what he should infer. Thus, in the first place, the learned Judge could not pronounce, and rightly a finding with any reasonable certainty that Pandurang had met with a homicidal death.
9. Secondly, the consistent narration of this appellant made on the night of 24-6-1975 and the one to be found in the complaint lodged by Sampat (Exhibit 34) was that Pandurang had voluntarily joined the company of the two persons and went with them in a tonga directing the appellant to bring his horse to Nitrud the next day. In his confessional statement, however, which is now retracted, he stated about forcible removal of Pandurang by the first two accused in a tonga and the threats held out to him.
10. The proper venue of approach in such a case is first to find out whether it is a confession, secondly, is it voluntary and thirdly, whether the truth of it is borne out by some the independent evidence. Courts have time and again emphasised the grave danger of making such a piece of evidence alone as the sole basis of conviction. Here, Exhibit-23, if carefully and closely scrutinised, contains no confession of guilt. It only shows that the appellant was a helpless witness to enact of abduction of his master. The learned Judge tried to improve upon it and colour it as a confessional one, only because his (appellant's) subsequent behaviour was queer, unnatural or treacherous. Thus, in our opinion, Exhibit-23 is not a confessional statement at all. The subsequent conduct of the appellant could be taken into account only as a piece of evidence in the chain or circumstantial evidence.
11. The present case rested only on circumstantial evidence. The law in this respect stands unchanged from ancient time to modern days. In order to commend the circumstantial evidence as the basis for conviction, the prosecution must prove that the circumstances are well-established and they are compatible with the only hypothesis of the accused committing the crime and they must be of such conclusive nature as to exclude any other possibility but the one sought to be proved. There must exist such combination of facts as to create a net-work through which there is no escape for the accused. Some of the circumstances we often come across in criminal trials are (1) acts of guilty conscience, (2) preparation for the commission of crime (3) possession of fruits of the crime (4) unsatisfactory evidence to clear the appearance of suspicion (5) suppression, destruction or fabrication or simulation of evidence, (6) scientific testimony, etc. The cumulative effect of all the circumstances present in a case taken together must point out the guilt of the accused. Here, the only two bare circumstances present are that the deceased was last seen with the appellant and the inconsistent and explanation given by him one to Sushila immediately after the occurrence and the other before the J.M.F.C., long after his arrest. The learned Judge tried to strain these circumstances too far and endeavoured to form a story that the two so-called unknown abductors were his co-conspirators and Pandurang was allowed to be removed by him to be murdered so as to render Sushila helpless, which was to serve their ulterior motive of grabbing her property. To say the least this is an instance how a judicial mind sometimes in a case of circumstantial evidence, is apt to take please in adapting circumstances to one another, strain them beyond proportion and thus, mislead itself to supply links that are wanting. The learned Judge here simply indulged in a wayward, nebulous thinking, forgetting the elementary rule that justice must be done according to law and no conviction can ever be based just on suspicions, howsoever strong. We are unable to maintain such a conviction and it has to be set aside.
12. In the result, the appeal is allowed. The conviction and sentence of this appellant-accused are hereby set aside. He shall be set at liberty forthwith, unless otherwise required in connection with any other offence.