A.S. Qureshi, J.
1. This is an appeal filed by the original accused in Sessions Case No. 24 of 1979 against the Judgment and Order passed on 26th October, 1979 by the learned Sessions Judge, Junagadh sentencing the accused for an offence punishable under Section 304 Part I of the Indian Penal Code and awarding simple imprisonment for a period of three years.
2. The prosecution story was that the accused had committed murder of his wife on 20th August, 1978 between 12-00 mid-night and 5-00 a.m. in his house. The landlord of the house in which the accused was residing is said to have informed Bhikhubhai Rambhai P.W. 2 (Exhibit 7) about the incident. This witness Bhikhubhai is said to be the Village Pasayata (errend boy). According to him there was no Police Patel appointed for the village and that on receiving the information regarding the alleged offence he went to Visavadar and reported the incident in the Police station. This witness has stated that when be asked the accused who was sitting in a corner of his room as to whether he had killed his wife, the accused gave no answer. When the witness asked the second question as to what was the cause of committing murder, the accused is alleged to have replied that she was quarrelling. This statement of the accused is of confessional nature in the context and, therefore, it would amount to extra-judicial confession which will require corroboration for the purpose of basing conviction on such a confession. Mr. M.A. Trivedi, the learned Additional Public Prosecutor has not been able to point out any evidence which could be regarded as corroboration to this extra-judicial confession. Mr. Trivedi has eventually suggested that the alleged discovery of axe by the accused having blood stains, which the blood has been certified by the Serologist as human blood should be regarded as a circumstance which could serve as corroboration. This argument of the learned Additional Public Prosecutor is not sustainable because even the alleged discovery of the axe is also not free from doubt in view of the fact that there is nothing on record to show that the accused had shown his willingness to discover the said axe. In this state of evidence on the record of this case, it is not possible to rely on the extra-judicial confession for the purpose of basing conviction thereon. The learned Sessions Judge has not adverted his mind to this aspect of the matter at all. In fact, the learned Judge has taken it as substantive evidence of its own which he considers sufficient to rely upon for the purpose of basing conviction thereon. In view of what is stated above, the learned Sessions Judge was not justified in taking this extra-judicial confession as an independent substantive evidence.
2.1 The prosecution has also examined Babubhai Bhurabhai P.W. 3 (Exhibit 9) who is the landlord of the premises in which the accused had come to reside only 3 or 4 days before the date of the incident. He has not supported the prosecution story and has been declared hostile. Therefore, his evidence also does not help the prosecution. The next important witness examined by the prosecution is Ravji Nanjibhai P.W. 7 (Exhibit 15). He was called as a Panch. In his deposition he has stated that the accused was sitting there and when he was asked where are the weapons the accused is reported to have said that they are lying at home. Thereafter, according to this witness, the accused led the Police and the Panchas to his residence and discovered the axe which is the Muddamal Article No. 6 certified by the Serologist as containing blood. This witness does not say that the accused stated that he had concealed the muddamal axe and that he was willing to discover the same. In the absence of such a statement by the accused, it is not sufficient for the prosecution to show that the accused discovered the axe. The accused may have knowledge of the weapons concealed by some one else at a particular place and he may discover it but unless there is reliable evidence that the accused had concealed the same weapon it would not be linked with the alleged offence. Hence the evidence of this witness also does not help the prosecution. Therefore, it has to be discarded for the purpose of connecting the accused with the alleged offence.
3. Mr. H.L. Patel, the learned Counsel for the appellant has relied upon the judgment of the Supreme Court in the case of Dudh Nath Pandey v. State of U.P. A.I.R. 1982 S.C. 911 for the above proposition. The Supreme Court has very clearly stated that mere discovery of the weapon may at the best prove the accused's knowledge as to where it is kept and hence it cannot be regarded as sufficient for the purpose of conviction. Mr. Patel has also referred to another decision of the Supreme Court in the case of Pohalya Motya Valvi v. State of Maharashtra : 1979CriLJ1310 wherein also the Supreme Court has clearly stated that the recovery of the weapon is not sufficient to link the accused with the commission of the offence. The authorship of the concealment would be the cogent evidence. The Supreme Court has further stated that it would be more so, when it is a confessional statement which becomes inadmissible under Section 27 of the Evidence Act. It goes on to say that the recovery of the weapon becomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of consultant and not mere knowledge of where it is lying.
4. The prosecution has examined quite a number of other witnesses, none of whom has implicated the accused with the commission of the offence either directly or indirectly. The incident is said to have occurred in the room where the accused and the deceased as husband and wife were living. Hence, in the nature of things there would be no other direct evidence regarding the commission of the offence alleged. In this state of evidence of the prosecution it is difficult to sustain the finding of conviction arrived at by the learned Sessions Judge. Hence the appeal of the original accused must be allowed. The order of conviction and sentence imposed on the accused is set aside. The accused is on bail. His bail-bond will stand cancelled.