Manohar Pershad, J.
1. Bhagoji and Rabhaji are charged of the offences of murdering one Gangadhar and also for causing disappearance of the evidence of the murder under Sections 302 and 201, Indian Penal Code respectively. Prosecution story is that Malan Bai the full sister of A-1 and the niece of A-2 had lost her first husband during childhood, but on attaining puberty, she inclined towards remarriage on coming in contact with the deceased. The deceased belonged to the Jadhav family while the accused were from Bhonsla family. There had been few marriages of Bhonsla girls with Jadhav boys. The accused always felt that Jadhavas were not equal in status and when Malan Bai told the accused that she was going to marry the deceased, the accused objected strongly and did all in their power to stop her from taking this step. They even threatened that if she would marry, she would not be allowed to enjoy married life peacefully.
2. But in spite of this, Malan Bai succeeded in having 'gandharv (remarriage) with the deceased. The accused felt that their prestige and dignity was greatly affected and severed all connections with the deceased and Malan Bai, but after some time, A-1 started visiting his sister's house occasionally to allay suspicion. On 4-4-1951, the deceased had gone to Paithan to purchase some utensils and proceeded to Pategaon and A-1 had accompanied him. The deceased did not return back. His family members felt anxious and futile searches were made in all possible quarters till 7-4-1951 when the headless corpse of the deceased was seen floating in the river near a field known as Chambharpatni in Dadegaon. Appa, the uncle of the deceased, identified the corpse and reported the incident to the Police Station House, Paithan, expressing his suspicion about A-1, that is, complicity in it.
3. With these allegations challan was filed against the accused; the case was committed to the Sessions and the trial was conducted with the aid of the assessors. On behalf of the prosecution 14 witnesses were examined and the statement of one Qasim was recorded as a Court-witness. The accused denied the charges and produced three defence witnesses. The assessors were unanimously of the opinion that both the accused are guilty. The learned District and Sessions Judge found the accused Bhagoji guilty of both the offences and sentenced him to transportation for life and seven years' rigorous imprisonment (the sentences to run concurrently), and acquitted Rabhaji, against Which the accused has filed this appeal. We have heard the arguments of the learned Advocates for the accused and the prosecution.
4. The learned Advocate of the accused urged that there are no eye-witnesses and the case rests solely on the circumstantial evidence; that the circumstantial evidence is not at all sufficient to establish the guilt of the accused and the trial Court has erred in convicting the accused. Reliance was placed on the cases of Hanmant Govind v. Madhya Pradesh : 1953CriLJ129 ; Public Prosecutor v. Oor Goundan AIR 1948 Mad 242 (B) and Rajagopalan In re : AIR1951Mad714 .
5. On behalf of the prosecution it is urged that the circumstantial evidence is not only clear but sufficient enough to establish the guilt of the accused
6. In order to appreciate the view points, a reference to the evidence is necessary, but before discussing the evidence, I would like to point out that in dealing with the circumstantial evidence, the rules specially applicable to such evidence must be borne in mind. The principles laid down by their Lordships of the Supreme Court in : 1953CriLJ129 are a lucid expression of these rules. It has been held that in evidence of this nature, there is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence is of a circumstantial nature,' the circumstances from which the conclusion of guilt, is to be drawn, should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
7. In the light of this pronouncement, by the Supreme Court, I shall consider the chain of the circumstantial evidence in the case one by one and see whether it is sufficient and establishes the guilt of the accused conclusively and in a manner which leaves no alternative except that of the guilt of the accused.
8. The circumstantial evidence alleged can be classed into four groups:
(i) the accused was seen in the company of the deceased at Paithan and Pategaon and thence proceeded to Dadegaon;
(ii) recovery of the articles at the instance of the accused:
(a) recovery of the head from the well,
(b) recovery of the blood-stained mud and weed,
(c) recovery of the ash and
(d) recovery of the blood-stained knife;
(iii) accused was seen bathing on the night of Wednesday and
(iv) accused's offer of Rs. 200/- to Qasim to bring the deceased on the other side of the river.
9. To prove the first fact, the prosecution has produced P. Ws. 3, 8, 12 and 13. To establish the fact of the recovery of the head and the other articles Exs. 3, 10, 11 and 12 have been filed and P. Ws. 4, 5, 10, 13 and 14 have been examined. P. W. 6 has been produced to establish the third chain and P. Ws. 2, 6, 9 and 14 have been produced to prove the last chain of the circumstantial evidence, I would deal with the first chain which relates to the presence of the accused at Paithan and Pategaon along with the deceased.
10. To begin with, I would consider the fact of the presence of the accused at Paithan in the company of the deceased. In this connection, the Statements of P. Ws. 8. 12 and 13 deserve consideration. (After elaborately considering the evidence his Lordship concluded) : Thus, after a careful consideration of the circumstantial evidence on record, I am of the opinion that this circumstantial evidence does not fulfil the test laid down by the Supreme Court in : 1953CriLJ129 '.
11. On behalf of the prosecution it is urged that if all the circumstances are taken into consideration together, there would be no other inference but that of the guilt of the accused.
12. I do not dispute this point. But the question for consideration is whether the circumstantial evidence falls within the ambit of the principles laid down by their Lordships of the Supreme Court, and I am of the opinion that this evidence does not come within the ambit of the principles laid down. And to my mind, the case does not seem to be free from doubt, and it is always safe in cases of doubt to give the benefit of doubt to the accused and giving the benefit of the doubt, I acquit the accused,
13. Appeal is, therefore, allowed, judgment of the Court below is set aside and the accused is acquitted. This judgment shall govern the connected confirmation. Material objects be disposed of as directed by the District and Sessions Judge.
Siadat Ali Khan, J.
14. This is an appeal of accused Bhagoji convicted and sentenced to transportation for life by the District and Sessions Court, Aurangabad, by judgment dated 29-2-1952. We have heard the arguments of the learned advocate, Shri Gopal Rao Ekbote for the appellant and the learned Senior Government Advocate, Ehri Mohd. Mirza for the State. I record ray opinion below. (After recapitulating the facts his Lordship while considering the evidence raised the following question):
15. There remains the question whether the information given by the appellant about the well from which the head of the deceased was discovered is admissible. As already stated, the information was that the appellant stated to the panches that 'he would show the well in the limits of Mungi village where he had thrown the head of the deceased'. In my opinion, the whole of this statement though made to the Police is admissible as in fact the head was found in the well and Information, therefore, to the Police cannot be deemed to be inadmissible because of the guarantee of truth contained in the discovery of the head. The learned advocate has cited : AIR 1948 Mad 242 (B)'; Periyaswami Tevan, In re' AIR, 1950 Mad 714 (D); Abdul Kader v. Emperor AIR 1946 Cal 452 (E); Pulukari Kottaya v. Emperor AIR 1947 PC 67 (P). Supdt. and Remembrancer of Legal Affairs v. Bhajoo Majhi AIR 1930 Cal 291 (G) and; Krishna Ayyar v. Emperor AIR 1919 Mad 353 (H) and has argued that neither the discovery is admissible, nor if admissible is sufficient to connect the deceased with the offence and, therefore, make him guilty. I have carefully studied these cases.
In AIR 1948 Mad 242 (B)', a headless trunk and the neck were found in a river. The statement of the accused to the Police was that the knife with which he had cut the neck 'had been buried by him in his sugarcane field and that he would discover it'. The Madras High Court held that only the portion underlined (here in single quotation) was admissible and that that was not enough to connect the accused with the offence inasmuch as no blood-stains were found on the knife and there was no other evidence to connect the knife with the accused or with the offence.
It may be noted that in the Madras case just considered, in addition to there being no blood-stains on the knife, there was no statement of the accused about the discovery of the trunk or the neck. In the case under consideration what was discovered in the well was not a knife but the head of the deceased himself and the knife discovered contained blood-stains.
In : AIR1950Mad714 ', there was enmity between the deceased and the accused. The accused had threatened the deceased that he will cut the deceased as he had cut his goats; that the deceased and the accused were seen herding their sheep in the same direction on the day of occurrence and that the accused was seen going away from the place of murder in the opposite direction with a blood-stained chopper in his hand. A blood-stained chopper was also discovered at the Instance of the accused two furlongs away from the scene of occurrence.
The Madras High Court has held that this evidence is not sufficient as nothing relating to the deceased was found, for the knife that was found related only to the accused; that it was usual in such cases that the discovery should be of something which relates to the deceased and that had the blood on the knife been proved to be of the same group as that of the deceased, the matter would have been clinched, that thus the record was not sufficient to raise anything beyond a suspicion and benefit of doubt should be given to the accused. It is not necessary to state that in this case what was discovered was not merely the knife but the head of the deceased himself at the instance of the accused.
In AIR 1930 Cal 291 (G)', the facts were that the accused was alleged to have killed the deceased as he was on illicit intimacy with his wife and stated to the Police that he had thrown the corpse in a river. What was recovered at his instance were some blood-stains on the scene of murder and blood-stained clothes. The Calcutta High Court held that what was admissible in the statement of the deceased that he had killed the deceased and thrown him into the river was only the fact of the discovery of blood-stains on the spot and also the blood-stained clothes and the statement that he had killed the deceased was not admissible. Clearly this case is totally different from the case under consideration.
In AIR 1947 PC 67 (F)', their Lordships of the Privy Council have laid down that Section 27 of the Indian Evidence Act should be interpreted in a way as not to make the preceding Sections 25 and 28 infructuous. In Sections 25 and 26 it has been enacted that any statement of the accused to the Police when not in the immediate presence of the Magistrate is inadmissible; that Section 27 enacts a proviso to these sections Co the effect that even where the statement of the accused to the Police is not made in the presence of the Magistrate, it is admissible provided that it relates distinctly to some facts which are discovered; that the fact discovered cannot be the object produced and any Information about the object produced will not be admissible; that if an accused states to the Police that 'I have hidden a knife which I have concealed in the roof of my house', the fact discovered here will not be a knife, as knives have been discovered long ago but the fact discovered will be the knowledge of the accused that lie knew that a knife was concealed in the roof of his house and if the knife had been used in the commission of the offence it will be a very relevant fact.
In this Privy Council case their Lordships of the Privy Council' held admissible the statement that 'I have concealed the spear and will show where I have concealed it' and held inadmissible the statement that 'I have committed the murder with the spear'. It is clear from all this discussion that in the statement under 'Consideration quoted above the whole statement is admissible because it consists only of the statement that the appellant would show the well in which he had thrown the head.
'Sonaram Mahton v. Emperor AIR 1931 Pat 145 (I) is a similar case in which the dead body was concealed in a place which was out of access and their Lordships of the Patna High Court after discussing several authorities held that the whole of the statement that 'I have concealed the corpse in the mine' was admissible.
16. Thus the discovery of the head from the well imputes knowledge of the head to the appellant. The question is whether this knowledge alone is sufficient to fix the offence to the accused. Lord Elden in -'Harvey's case (1802) 2 East 608 (J) has held that
he would exclude the confession and direct an acquittal unless the fact proved would itself have been sufficient to warrant the conviction Without any confession leading to it.
In my opinion, the fact proved here is the discovery of the head at the instance of the accused and in itself it warrants a conviction. Again the Privy Council in the case referred to above has held that except in cases in which the possession or concealment of an object constitutes the gist of the offence charged it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is clear to my mind that the discovery of the head from the well here constitutes the gist of the offence charged.
In addition, there is the discovery of bloodstains on the 'sondad' twig, the dry wood and also the knife which connect the accused with the offence. The learned District and Sessions Judge has distinctly held that though the place where the dry wood was taken was on the cart-track but the cart-track was not frequently used; that it was used only in harvest times and that the place was such that nobody could have discovered it unless led to it. Similarly, the learned District and Sessions Judge has found that the place from where the trunk was thrown into the Godavari river and from where the twig of the 'sondad' tree was discovered were a very much unfrequented places and could not have been discovered unless shown by the accused. The learned District and Sessions Judge has formed this opinion not only on the deposition of the Investigating Officer and many a prosecution witness but also on his inspection. The Chemical Analyst has found blood on the knife. In this way there appears to be no valid reason to ignore this discovery.
17. There remains the argument from AIR 1948 Mad 242 (B) that the blood found on these articles was not shown to be of the same group as that of the deceased. It should be noted that their Lordships of the Madras High Court made that statement only for clinching the matter. Their Lordships' observation cannot be interpreted to mean that where the same group has not been proved, the discovery of blood-stains may be wholly ignored. This interpretation would make almost all the cases where blood-stains were discovered wholly useless. Blood-stains in suspicions circumstances are indicative of the guilt and taken with the other record of the case can be given due weight.
In this case as already stated above the deceased had been proved to go to Paithan and was seen On the night of occurrence in Pategaon only a few furlongs away from Dadegaon. He was not since then-heard of. The appellant knew where the trunkless head was. He also knew the spot where blood-stains were found on dry wood and also the spot where blood-stains were found on a 'Sondad' twig. The knife containing blood-stains was found from his house in a 'Palchal'. Considering all these facts the only conclusion to my mind is that the accused committed the murder. (After further weighing the evidence his Lordship concluded) : Thus, the conclusion of guilt is not rebutted by anything on record and there remains no reasonable doubt whatsoever that the accused was the offender. I dismiss his appeal. Material objects in the case may be disposed of as directed by the trial Court.
As their Lordships differed, the case was referred to a third Judge, whose judgment Is as follows:
Qamar Hasan, J.
18. The appellant Bhagoji along with his uncle Rabhaji was tried by the learned Sessions Judge, Aurangabad, for offences falling under Sections 302 and 201, Indian Penal Code for the murder of one Gangadhar and causing the disappearance of evidence of the offence. On conclusion of the trial, the assessors who aided the court, found both the accused guilty of the offences charged but the learned Sessions Judge differed from them so far as Raghaji was concerned and acquitted him giving him the benefit of doubt. He, however, agreed with the assessors that the prosecution had established the guilt of Bhagoji beyond any reasonable doubt. Consequently, he convicted him of the offences charged and sentenced him to transportation for life for murder and to a term of seven years' rigorous imprisonment under Section 201, with sentences to run concurrently.
19. Bhagoji felt aggrieved by the order of the learned Sessions Judge and he appealed to the High Court. The appeal was heard by my learned brothers Manohar Pershad and Siadat Ali JJ. Manohar Pershad J. held that the circumstantial evidence on which the whole case rested fell Short of the test laid down by the Supreme Court in 'AIR 1952 SC 343 (A)', and was not of such a Character as to produce that moral certainty which excludes all reasonable doubt as to the guilt. Therefore, he set aside the conviction and sentence and acquitted the accused. Siadat Ali J. On the other hand, took a contrary view of the evidence and felt satisfied that the evidence adduced by the prosecution though circumstantial to character was of a high probative force to bring the charges home to the accused. On this finding which he arrived at after an elaborate examination of the evidence and case-law, he found no force in the appeal and dismissed it.
20. This difference of opinion has caused the appeal to be laid before me under the provisions Of Section 429, Criminal Procedure Code, by the order of the Hon'ble Chief Justice, dated 21-1-1953. Shri Gopal Rao Ekbote argued the case on behalf of the appellant and Shri Muhammad Mirza appeared on behalf of the State in support of the prosecution. The elaborate argument addressed to me clinch the questions Involved in this appeal into two categories : (1) whether the appellant committed murder, and if so, can he as well be convicted for the offence under Section 201(2) if it be held that the offence of murder cannot be held as established against the appellant, whether the evidence on the record was sufficient to sustain his conviction for the lessor offence.
21. I feel justified in this method of dealing with the appeal because of the pronouncement of their Lordships of the Privy Council in the case of Mangal Singh v. Emperor AIR 1937 PC 179 (K), wherein it has been held that where an accused is charged with murder but he is also found guilty of an offence under Section 201, Penal Code, the proper avenue of approach is, first and foremost, to consider whether the case under Section 302, Penal Code has been made out. If so, that is an end of the matter. If on the other hand, it is thought that the case under that section was not proved, then, and only then, would it be proper to consider whether an offence under Section 201 had been established.
22. This brings me to the necessity of briefly narrating the facts which have culminated in the conviction of the appellant. It was said on behalf of the prosecution that Rabhaji and the appellant Bhagoji were respectively the uncle and full brother of Malan Bai, P. W. 2. In her eighteenth or nineteenth year, she developed a strong passion for remarriage and her choice fell on the deceased Gangadhar whom she had met at some theatrical performances and visited him once or twice before remarriage at his village of residence. Gangadhar belonged to Jadav family and Malan Bai was a member of Bhonsle family. Rabhaji, when requested by Malan Bai to bless the marriage with his consent, strongly objected to it. He protested that daughters of Jadav family can be brought into Bhonsle family but no Bhonsle girl could ever be married to a Jadav. His protest went unheeded and a marriage ceremony in Gandharva form was gone through. At the time of the solemnization of marriage, no one from the Bhonsle family attended the function. Rabhaji being older in age and more conservative in thought, never forgave Malan Bai for her unorthodox marriage and is said to have threatened the couple with dire consequences. Bhagoji, however, after five or six months reconciled himself to a 'fait accompli' and began to pay visits to his sister and brother-in-law. Nearly eleven months after the remarriage on 4-4-1951, the deceased went to Paithan to purchase some utensils for household purposes but did not return. Inquiries started by his relatives failed to produce any definite result.
23. On 7-4-1951, information was received that a headless human body -was floating on the waters of Godavari. The uncle of the deceased, Appa P. W. 1 after inspecting and identifying the body went to Paithan and laid first information with the officer-in-charge of the police station who recorded his statement and forwarded it to the Magistrate at Paithan. The investigating officer, P. W. 14, then repaired himself to Dadegaon and held an inquest on the headless body and prepared the report Ex. 2 at 4 p.m. on 7-4-1951. Both the accused were arrested at 11 a.m. on 8-4-1951. On the same day followed the events which find their place in Exs. 3, 9, 10, 11, 12, 13 and 14. Exhibit 3 records the fact of the discovery of the head of the deceased from a well in Moongi on the information supplied by Bhagoji. Exhibits 9 and 10 show that both the accused separately pointed out Chambar Patni the scene of murder from where some blood-drenched earth and blood-stained twigs of certain shrub were seized. Through Ex. 11, ashes of burnt clothes alleged to be of the deceased and the accused, were seized by the police, Ex. 13 makes a memorandum of the recovery of an axe through Rabhaji. By Ex. 12, a knife with a blade of 3 inches covered with blood-stains and a dhoti were recovered from Bhagoji on 10-4-1951, and by Ex. 14 of the same date, a tattered dhoti was seized.
24. To substantiate the charge fourteen witnesses were examined on behalf of the prosecution and the statement of one Muhammad Qasim was recorded as a court witness. The statement of the medical officer on the file of the committing Magistrate was used by the Sessions Judge as evidence under Section 509, Criminal Procedure Code. The appellant and the co-accused produced three witnesses to prove their whereabouts during the time the murder was alleged to have been committed.
25. It appears that Muhammad Qasim was examined in the committing court as one who had seen the occurrence. His statement did not support the prosecution. He was, therefore, not produced in the Sessions Court. The assessors and the learned Sessions Judge felt that in the circumstances of the case, he should be examined as a court witness. The substance of the evidence of this witness did not prove helpful to the prosecution. An eye-witness account of the occurrence being thus out of question, the learned Sessions Judge felt constrained to rely upon circumstantial evidence. In order to assess the weight to be given to the circumstances appearing against the accused, he took as his guide the following propositions extracted from Ratan Lal v. Hex AIR 1949 All 222 (L) that (1) the circumstances from which the conclusion is drawn are fully established, (2) all the facts should be consistent with the hypothesis, (3) that circumstances should be of a conclusive nature and tendency and (4) the circumstances should, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved.
26. The evidence against Rabhaji consisted of the facts that he pointed out the field where murder is alleged to have been committed and also the place from where the dead body of the deceased was thrown in water. In addition to these facts, the further incriminating facts attempted to be established was that at his pointing out, a buried and allegedly blood-stained axe was recovered from a nearby field. The chemical examiner reported that no blood was found on the axe. The other circumstance relied upon by the prosecution was that of motive.
27. The learned Sessions Judge held that these circumstances either singly or cumulatively were insufficient to fix guilt upon Rabhaji and he was entitled to the benefit of doubt and deserved acquittal.
28. But in so far as the appellant was concerned, he found that his case stood on a different footing. In his case, he held that the prosecution has satisfactorily established that:
(1) the appellant had a motive to revenge himself for the ignominy of an unequal marriage between his sister and the deceased,
(2) the deceased was last seen in the company of the appellant,
(3) he produced a knife with a blood-stain from his house,
(4) he supplied information to the investigating officer as a result of which the head of the deceased was recovered from an unused Well,
(5) he pointed out the place where murder committed and from where a blood-stained twig of sondad and blood-sodden earth was found and the spot on the rocky place by the side of the river bed where a bloodstained dry weed was seized, and
(6) he pointed out the place where the bloodstained clothes of the deceased and those of the accused were burnt with the help of a dry karad stick, the ashes where of were recovered.
In the opinion of the learned Sessions Judge, the cumulative effect of these proved circumstances led to no other conclusion but to the guilt of the appellant on both the counts of the charge.
29. This view of the case with a slight variation was concurred with by Siadat Ali J. On the other hand, Manohar Pershad J., after reviewing the evidence arrived at a contrary conclusion and he held that the circumstantial evidence which; was relied upon by the prosecution was not worthy of credit, in view of the discrepancies and unnatural conduct of some of the important witnesses. He, therefore, allowed the appeal and acquitted the appellant.
30. I have heard the learned Advocates appearing on behalf of the parties at great length, The case, without any doubt, rests upon circumstantial evidence inasmuch as Muhammad Qasim has not supported the prosecution in spite of the fact that he was alleged to be an eye-witness. It is a fundamental rule of universal application that in cases dependent on circumstantial evidence, in order to justify an inference of guilt, the incriminating circumstances must be incompatible with the innocence of the accused and must be incapable of explanation upon any other reasonable hypothesis than that of guilt; the circumstantial evidence must be of such a character that it should establish the guilt of the accused beyond any reasonable doubt and all possibilities of innocence should be excluded.
31. Their Lordships of the Supreme Court have laid down in : 1953CriLJ129 . that:
In dealing with circumstantial evidence, the rule applicable to such cases must be borne in mind. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof, and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in - Rex v. Hodge (1838) 2 Lewin CC 227 (M), where he said:
'The mind was apt to take a pleasure in adapting circumstances to one another, and even la straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters to over-reach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its perverse theories and necessary to render them complete.'
'It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive) nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, them intist tee a chain of evidence so far complete as not to leave any reasonable ground for a conclusion cohsistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused.
32. In the light of these weighty and binding observations, I have first to see what circumstances have been established by the prosecution for hold the appellant guilty of murder and whether they are sufficient to fix the guilt on him. The wounds and injuries found on the body of the deceased according to the medical evidence were:
(1) Incised circular wound all round the neck separating the head from the body,
(2) incised wound from the lower end of sternum to the upper margin of bladder 10' x 6' and abdominal organs such as stomach, intestines, and liver were protruding out of the wound.
(3) incised circular wound over the lower end of the right arm, separating the right elbow joint which was absent,
(4) incised wound on the right side of the head 3' x 1/2' bone depth which was oblique,
(5) incised wound on the left cheek extending from the left pinna of the ear downwards, to the left jaw 6' x 1' bone depth.
The learned Sessions Judge has mentioned in his judgment that the head alleged to be recovered from the well exactly corresponded to the incised circular wound of the neck.
33. I am told that these wounds were caused and truncation effected with the aid of an axe and three inches long knife. In Mohinder Singh V. The State : 1SCR821 , it has been held that in a case where the death is due to the injuries or wounds caused by a lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which they are Alleged to have been caused. It is no doubt true that the medical evidence is that such wounds could be caused by axe and knife. But it is unfortunate that no question has been put to the expert as to whether the weapon exhibited in the ease as material object could cause the wounds as found on the body of the deceased. With the elimination of Rabhaji by reason of his acquittal, one is left with a weapon which has been described by the prosecution as 'Ek lokhandi chaku jyache pate teen inch lamba and tayavar raktache dage ahet', which has been rendered into English as one iron knife whose blade is three inches long on which there are stains of blood. I am not prepared to believe that a clean and flawless truncation could be effected as shown at (1) and the chopping off as shown at (3) could be effected with the knife alleged to have been recovered from the appellant. Even assuming that the axe was wielded by the appellant, it is difficult to say with certainty or high probability that such wounds would be caused by an axe. I need not elaborate this point as with Rabhaji the axe also disappears from the picture. No doubt, the chemical examiner has reported that human blood was found on the knife, but a knife which can be used for household purposes can also be-come blood-stained in its use for innocent purposes. If it were used for the commission of the offence, there was no reason why a small spot of blood should have been left uncleaned as it was done in the case of the axe and where the evidence is that Rabhaji and the appellant were seen at a dead of night washing themselves in the Godavari to clean themselves of all tell-tale blood spots.
34. The other circumstance which in the main weighed with the learned Sessions Judge and my brother Siadat Ali J. was the recovery of the head of the deceased in consequence of the information alleged to have been supplied by the appellant. With regard to this aspect of the case, the evidence was that the appellant was arrested at 11 a.m. and soon after the arrest the panches were collected and it was in their presence that the appellant confessed the guilt and gave out that the head of the deceased and the utensils purchased by him at Paithan were thrown in a well situate in a field near Mungi, At 12 noon on the same day efforts to recover the head and the utensils commenced which had to be continued for nearly six hours to be crowned with success with the recovery of the head and the utensils remaining undiscovered.
35. In the natural course of things, one would expect the Investigating Officer P. W. 14 to depose that in answer to his interrogatories the appellant gave the information which led to the discoveries of facts relied on by the prosecution. It does not stand to reason that P. W. 14 without Having elicited the information would have thought it worthwhile to collect the panchas. It is that information which can be said to be relevant piece of evidence under Section 27, Evidence Act-Deliberately or through inadvertence there is no evidence on that score. Be that as it may Ex. 3 the panchanama prepared after the recovery of the head discloses that the appellant confessed rather voluntarily that he and Rabhaji murdered Gangadhar and after that the severed head of the deceased was thrown into a well. Having imparted this information it is stated that he led the panchas to survey No. 354 situate in Vadoli.
The Patwari of Mungi, Sripat Govind Takalfcar was sent for and in his presence Narayan Sobhaji P. W. 10 got down into the well and removing the thorny stuff took out the head from the well which was identified by one Trimbak Kartahaji to be that of the deceased. Apart from the fact that the identifier and Mali Patel have not been produced, it appears that the whole of the statement as testified to by P. W. 4 Raghunath, has found no place in Ex. 3. According to this witness, the appellant had said that not only the head but also the utensils were thrown In the well. There is no explanation why the whole statement was not recorded. Had the utensils been recovered from the well it would have been a strong indication of the complicity of the appellant in the commission of one or the other counts of the charges. Apart from the unrecorded statement of the appellant as to the disposal of the utensils, there is no evidence on the record to show their ultimate fate.
36. Moreover it is to be noted that the expression 'thrown' said to have been used by the appellant is in passive form. This form of expression makes it ambiguous as to the identity of the person throwing the head. May be that Rabhaji might have done the act and confided it to the appellant.
37. AS to how the head was recovered Ex. 3 has the brief statement that in the presence of the panchas and Shripat Govind Takalkar, Narayan Sobhaji (P. W. 10) after removing the thorny stuff and searching the well with a stick took the head out of the water. P. Ws. 4, 10, 13 and 14 stated that there was thorny stuff to abundance in the well which made search operations very difficult. Iron hooks and sickles were brought to remove the stuff. After the well was cleared of the stuff, persons were let down into the well. As to the persons who got down into the well, the witnesses are not unanimous. P. W. 14 deposes that two or four mangs from Mungi were asked to get into the well. P. W. 4 on the other hand states that no person from Mungi got into the well. Narayan, a distant relative of the deceased, testifies that at the order of the Foujdar he and Sathyaba P. W. 13 and one mang from Mungi got down into the well. P. W. 13 is at one with P. W. 10 in this respect. Again be that as it may, P. W. 4 states that Narayan stirred the water and found out the head which was taken out in a bucket. Narayan deposes that after stirring the water the head was found and taken out in a bucket. P. W. 14 has to say that when it was known that the head was found - he does not say by whom but probably by two or four mangs - it was taken out with the help of a bucket. Ex. 3 does not, bear out these statements. What it says is that Narayan searching with a stick removed the head of the deceased out of the well.
38. The other circumstance relied on by the prosecution was that the appellant pointed out the place where the deceased is alleged to have been brutally murdered. This fact is evidenced by Ex, 10 and by the statements of P. Ws. 4 and 14. It appears very strange that at the place where the head of the deceased was severed, no big patches or spots of blood even of 4 or 6 inches in length were found. What was alleged to have been found there were the blood-stains on twig of sondad shrub and that, twig was cut off and seized. Though P. Ws. 4 and 14 state that bloodstained earth was also collected at the scene of murder but that fact is not borne out by Ex. 10. which says that dried blood was found on a dry stick and on the earth by the bank of the river which was pointed out by the appellant stating that it was at that place that the arm of the deceased was chopped off and the body was thrown into the river. These two witnesses do not testify that any earth was seized at the latter place.
39. Now I shall take up the question of motive. In criminal cases evidence of motive becomes immaterial when direct and credible evidence of an eye-witness is available. It assumes importance in the absence of such evidence and where the case rests upon circumstantial evidence. The Gandharva marriage is said to have furnished the motive for murder but the evidence on that point loses its importance in view of the fact that there is evidence of Malan Bai and others that the appellant had to all appearance reconciled himself to the remarriage and used to visit his sister and brother-in-law. There is no evidence on the record to show that the appellant's apparent reconciliation to a 'fait accompli' was no more than a ruse to lull the deceased into a sense of security. On the other hand, the evidence is that it was Ratahaji who was adamant in his opposition to remarriage and completely boycotted and refused to enter into social intercourse with the couple after remarriage
40. My learned brother Siadat Ali J. has discussed the evidence of P. Ws. 8, 14 & 13 & come to the conclusion that the fact of the deceased going to Paithan to purchase utensils has been established but it has not been established that he started from Vadoli in the company of the deceased and that the appellant was seen with the deceased at Paithan. I agree with him in these conclusions which are the same as arrived at by my learned brother Manbhar Pershad J. There remains the evidence of Bhago Bai, P. W. 3, who deposed that on the fateful day the deceased along with the appellant came to her house at Pategon. She says that she knew that both of them had come to her from Paithan. It is unfortunate that the prosecution did not attempt to bring out her source of information. Her deposition is that they remained with her for a short while and went away in the evening when lamps were lighted. This piece of evidence is not inconsistent with the alternative that they might have parted as friends.
41. The fact is that, the whole case against the appellant rested upon the cogency of proof as to the recovery of the head. The other evidence is only of a corroborative nature. I have discussed and shown above that the evidence in. that respect is not free from material discrepancies and is not helpful in creating that reasonable certainty which is necessary for basing a finding of guilt. It is with utmost reluctance that I feel forced to give the appellant the benefit of doubt.
42. The result is that the appeal succeeds and is hereby allowed and the appellant acquitted.