JUDGMENT - M.S. APTE, J.:---The appellant original accused No. 1 has been convicted by the learned Sessions Judge, Osmanabad for an offence under section 302 of the Indian Penal Code and has been sentenced to death subject to confirmation by this Court. He has been also convicted for an offence under section 201 of the Indian Penal Code but no separate sentence has been awarded. 2. The appellant and 5 others were prosecution in connection with the murder of one Nilavati, the 18-19 years old sister of the appellant. The appellant was charged for the offence of murder punishable under section 302 of the Indian Penal Code and the appellant and 5 others were together charged for the offence under section 201 read with section 34 if the Indian Penal Code. 3. The allegations on which the prosecution was founded are briefly these: Nilavati, the victim of this incident was a girl aged 18 or 19 years. Gangubai (P.W. 7) is her mother. This Gangubai has four sons viz., the appellant Bhiva, accused No. 3 Sandipan, Arjun and Shiva. Nilavati the victim of this incident, and Kalavati are the daughters of Gangubai. They were all residents of Apshinge village, taluka Tuljapur, District Osmanabad and were residing in the Mangwada, Nilavati was first given in marriage to one Rama of Dhanegaon. She resided with him for about a month and returned to her mother after leaving her husbands house. Thereafter Nilavatis second marriage was performed with some person from Sholapur. Nilavati resided with that second husband for a month and returned. Thereafter Nilavati went to Poona with her cousin brother one Gorakh. She stayed in Poona for about 2-3 months and returned Apshinge. Gangubai and her sons did not like the behaviour of Nilavati. I appears that on Wednesday about two weeks after the Tulsi Vivah of 1974 which corresponds to December 11, 1974, Nilavati and the appellant left the house at breakfast time for going to the fields called Piparpatti to pluck Tur nuts. In the evening the appellant alone returned to the house and when Gangubai and others asked the appellant, about Nilavati the appellant is alleged to have remarked that she filed away to lead a stray life. 4. In the evening the appellant alone returned to the house and when Gangubai and others asked the appellant, about Nilavati the appellant is alleged to have remarked that she filed away to lead a stray life. 4. Meanwhile it is alleged that when Madhav Kulkarni (P.W. 5) a 14 years old boy and Saheba Sarde (P.W. 6), a 16 years old boy had together been towards the Piparpatti land for grazing their cattle. They saw the appellant and his sister Nilavati going towards the Piparpatti filed from Apshinge village. The appellant was having an axe (Articles 4) in his hand. Saheba asked the appellant to handover the axe to him as Saheb intended to cut a branch of Babul tree. Saheba actually caught hold of the axe but the appellant having snatched that axe an injury was caused to the middle finger of the left hand of Saheba. Nilavati went towards the Tur crop. The appellant told Saheba and Madhav that they should go away with cattle as his employer viz., the owner of the Piparpatti field was expected to come to the field on a motor cycle. The appellant then went upto Jambul tree. Then he removed his Payjama, shirt and white can and kept them on the branch of the Babul tree and was left with only a banian and a nicker on his person. The appellant then cut a small branch of Jambul tree with his hand. The appellant then went towards the Tur crop towards the spot where Nilavati had gone. Thereafter Madhav and Saheba both climbed and Babul tree. They both saw the appellant raising his hands with the axe and moving upwards and coawards twice or thrice. Afterwards both these boys saw the appellant going towards the place where he has tethered his bullocks, and from there he came towards the Jambul tree where he had kept his clothes. He put on those clothes and came near these two boys. He asked them as to how they were still standing there inspite of his having asked them to go away. He threateningly asked them to immediately leave the place or else he would kill them. Thereafter Saheba and Madhav went towards the Mal with their cattle, grazed their cattle till evening and returned to their houses. 5. That very evening Saheba went to Dr. Rahinkar (P.W. 8) for treatment of his injury. Dr. He threateningly asked them to immediately leave the place or else he would kill them. Thereafter Saheba and Madhav went towards the Mal with their cattle, grazed their cattle till evening and returned to their houses. 5. That very evening Saheba went to Dr. Rahinkar (P.W. 8) for treatment of his injury. Dr. Rahinkar gave him treatment. It is the version of Dr. Rohinkar that he having asked Saheba the cause of the injury. Saheba told him that he had asked the appellant to give his axe and had caught hold of the same and that while it was being snatched, Saheba had sustained the injury. It appears that notwithstanding the fact that the girl Nilavati did not return to the house and the appellant alone returned to the house as alleged by Gangubai none of the members of the family of the deceased Nilavati bothered to make inquires about her. 6. It is the version of one Pandit Bachute (P.W. 10) that on December 13, 1974 when he had been to his field at about 5 p.m. he saw a dog carrying the head of a woman and going from the Piparpatti land by the side of his land. On December 14, 1974 he conveyed this information to Narayan Patil (P.W. 11) the Police Patil of Apshinge village. On learning about this unusual phenomena, Narayan patil sent accused No. 3, the Kotwal to go to Piparpatti filed and to see what the matter was. It is alleged that accused No. 3 returned after two hours and told this Police Patil that nothing of that sort viz., the head of a women could be seen. It may be however mentioned that Narayan Patil of Apshinge; did not bother to make any investigation or to make any report about this unusual incident of his having heard from Pandit Bachute about a dog moving with the head of a woman in its month. 7. It is alleged that on the night of December 14, 1974 , one Mahadev Gholkar (P.W. 14) and Babu Mali (P.W. 15) who own lands in the neighbourhood of Piparpatti, noticed some persons proceeding at about 11 p.m. towards Piparpatti. Mahadev noticed that they were accused Nos. 1 to 4 and 6. He also questioned their names and get it confirmed and he also noticed that accused No. 3 was carrying a gunny bag. Mahadev noticed that they were accused Nos. 1 to 4 and 6. He also questioned their names and get it confirmed and he also noticed that accused No. 3 was carrying a gunny bag. After seen those accused going towards the Piparpatti Mahadev went to the field of Babu and told him about it. Babu also in his turn noticed accused Nos. 1 and 3 to 6 going towards the Pipartpatti. Both these witnesses out of curiosity waited to see what those accused were doing. They saw the accused going to heap of fodder, and after creating some noise as a result of the removal of the sheeves of fodder, they took out a bundle from the heap. They found that the bundle was emanating foul smell and, therefore, they asked the accused as to what the matter was. It is alleged that accused No. 3 told them that a young she buffalo had expired and that they were removing the same for removing its skin. It is the version of these two witnesses that thereafter the said accused removed that bundle towards Dhekari tank. 8. On December 18, 1974, Sudhakar Rajmane (P.W. 2) while working with others on the Dhekari Bazar tank i.e. a tank found that some foul smell was coming from the direction of the northern side of the tank where the bunding of the tank was in progress. They came across the portion of a gunny bag giving foul smell. That is why Ashok one of the workers was sent to inform the Police Patil (P.W. 1) viz., Sampat Late, who is the officiating Police Patil of Dhekari. On learning about the same, this Sampat went towards the tank along with the Kotwal and Sarpanch and some other villagers. They found that foul smell was coming. After digging a portion of the bound they came across the bundle of a gunny cloth. They cut the gunny bag with the help of knife. To their surprise they found inside the gunny bag, the dead body of an unknown woman without the head. The green sari (Article 9), blouse (Articles 11) and the petticoat (Articles 10) were on the person of the dead body. It was also noticed that on the right forearm there were tattooed the name of accused Nos. 1, 3, Arjun and Shivaji, the brothers of Nilavati and Gorakh, her cousin brother. 9. The green sari (Article 9), blouse (Articles 11) and the petticoat (Articles 10) were on the person of the dead body. It was also noticed that on the right forearm there were tattooed the name of accused Nos. 1, 3, Arjun and Shivaji, the brothers of Nilavati and Gorakh, her cousin brother. 9. The Police Patil Sampat immediately prepared his report (Ex. 12) and went to the Police Station, Tuljapur. He handed his report (Ex. 12), to P.S.I. Velapur (P.W. 20) at about 5 p.m. The P.S.I. registered and offence. He went to Dhekari. As it was night time he kept a watch over the deadbody and recorded the statements of 6 witnesses. On December 19, 1974 he held the inquest (Ex. 15) over the dead body. The deadbody was then handed over to Police Constable Angad (P.W. 16) for being taken for autopsy. Dr. Ingale (P.W. 19) performed the post mortem and prepared the post mortem notes (Ex. 47). According to him the probable cause of the death could have been the haemorrhagic shok caused by complete cutting of care-tid arteries, complete cutting of jugular veins and complete cutting of trachea, oesophagus spinal cord and cervical spine. After the autopsy he handed over the clothes viz., the sari (Article 9), blouse (Article 11) and petticoat (Articles 10) to Police Constable Angad and the same were taken charge of under a panchnama (Ex. 17). 10. Resuming the narrative of the investigation, after sending the deadbody for autopsy, the P.S.I. recorded the statements of 67 witnesses. He went to Apshinge and arrested the appellant. While taking the search of the person of the appellant, banian (Articles 1) which was on his person being found to be stained with blood it was attached under the panchnama (Ex. 18). The Appellate thereafter offered to produce the axe from his house. A memorandum (Ex. 29) about the same being prepared appellant took the police and panchas to his house and took the axe (Articles 4) which was kept in between the wall and the roof of corrugated sheets on his room. The axe (Articles 4) was attached under the panchnama (Ex. 30). The appellant thereafter led the P.S.I and the panchas to the scene of offence. As appears from the panchnama (Ex. 32) it was noticed that blood was lying on certain portion in the Tur crop in Piparpatti. The axe (Articles 4) was attached under the panchnama (Ex. 30). The appellant thereafter led the P.S.I and the panchas to the scene of offence. As appears from the panchnama (Ex. 32) it was noticed that blood was lying on certain portion in the Tur crop in Piparpatti. Articles 5 to 8 including the blood stained Tur leaves and stumps, hair and ribbon were attached under the Panchnama (Ex. 32). The appellant is thereafter alleged to have made a statement (Ex. 33) about his having thrown the head in Bhima Wadgaonkars well and offered to produce the same. Accordingly the appellant led the P.S.I and the Panchas to the well of Bhima Wadgaonkar. As the well was deep and it was old, the pumping engine of one Babu Nimbalkar was fatched and water was tried to be drained off from that well. The process went on till mid-night and a panchnama (Ex. 34) about the same was prepared. The process of removing the water being after midnight continued. By morning the water being drained when it was about 14 feet deep, Babu Nimbalkar went to the bottom of the well and he took out the heard (Articles 15). It was attached under the Panchnama (Ex. 35) dated December 21, 1974. It is alleged that thereafter on December 21, 1974 accused No. 2 offered to show a place in the fodder and after recording his statement (Ex. 36), the P.S.I. and the panchas went to the heap of fodder to which accused No. 2 is alleged to have led them. After removing some portion of the fodder it is alleged that foul smell and blood stained portions of the fodder (Article 3) were found and they were attached under the panchnama (Ex. 37). Accused Nos. 4 and 5 were arrested thereafter. Accused No. 6 could not be traced. The head which was recovered from the well was sent to the Medical officer and on December 22, 1974 as desired by the Medical Officer, the Executive Magistrate was requested to exhume the dead body which was buried after the post-mortem. On December 23, 1974, the Executive Magistrate exhumed the deadbody with the help of the selfsame Manohar Kadam (P.W. 9) and Police Constable Angad (P.W. 16) who had buried the deadbody after the post mortem on December 19, 1974. The Medical Officer Dr. On December 23, 1974, the Executive Magistrate exhumed the deadbody with the help of the selfsame Manohar Kadam (P.W. 9) and Police Constable Angad (P.W. 16) who had buried the deadbody after the post mortem on December 19, 1974. The Medical Officer Dr. Ingale was not in a position to state whether the deadbody and the head were parts of the same body. At the request of the police the deadbody and the head were sent to Dr. Kolte (P.W. 21) who is a Reader in anatomy since 1964. On examining the deadbody and the skull, Dr. Kolte concluded that the bones belong to a human being that the sex of the person is female, the age of the person is between 18 and 19 years and the lower there vertebra of neck, first and second vertibra of thorax showed injuries which could have been produced by blow of a sharp edged weapon. He also expressed an opinion that from the sex and the age of the skull bone and other bones examined by him., he could say that the skull and the other bones examined by him might from part and parcel of the same human being although he added that he cannot be cent per cent sure about it. He also stated that atleast 4 blows with a sharp edged weapon must have been inflicted to produce the injuries as noticed by him on the vertibra; although he further added that opinion cannot be given whether the injuries were ante mortem or post-mortem. It may be mentioned that the banian (Articles 1) which was found on the person of the appellant at the time of his arrest was according to the report of the chemical analyser was stained with identical B group of human blood with which the ribbon (Articles 8) and the grass leaves (Articles 5 to 8) found on the scene of offence in the Piparpatti were found to have been stained. No blood was detected on the axe. 11. It is on these facts that the accused were prosecuted. All the accused pleaded not guilty to the charge and claimed to be tried. 12. The learned Sessions Judge disbelieved the version of Mahadev (P.W. 14) and Babu Mali (P.W. 15) about the movements of the accused on the night of December 14, 1974 and he, therefore acquitted accused Nos. It is on these facts that the accused were prosecuted. All the accused pleaded not guilty to the charge and claimed to be tried. 12. The learned Sessions Judge disbelieved the version of Mahadev (P.W. 14) and Babu Mali (P.W. 15) about the movements of the accused on the night of December 14, 1974 and he, therefore acquitted accused Nos. 2 to 6 with regard to the appellant, the appellant conceded that the banian (Article 1) was found on his person at the time of his arrest. When questioned however about the same being stained with blood, he stated that part of the prosecution case is false. He denied about his either having accompanied his sister Nilavati on the date of the incident to the Piparpatti field or about his having contacted Madhav (P.W. 5) and Saheba (P.W. 6) on that date. He also denied about his having made any statement leading to the discovery of either the axe or the head of the deadbody. He stated that the axe was found in the search of the house. He denied that he had any reason to be displaced with his sister Nilavati. The learned Sessions judge, however , believed the evidence of Madhav (P.W. 5) and Saheba (P.W. 6). He also relied on the evidence of Gangubai. He held that the evidence of Madhav and Saheba was corroborated by the evidence of Dr. Rohinkar (P.W. 18) and Dr. Ingale (P.W. 19) on the point of the injuries sustained by Saheba on the date of the incident. He also believed the prosecution case that the axe was discovered at the instance of the accused appellant and what was a circumstances about the truth of the version of the prosecution witnesses Saheba and Madhav. He also held that the head of the deadbody was recovered at the instance of the appellant and that circumstance also lend corroboration to the evidence of Madhav and Saheba. Although he had rejected the application (Ex. 52) on behalf of the State for sending the appellant to the civil hospital, Osmanabad for ascertaining his blood group, the learned Sessions Judge accepted the submission on behalf of the State that as the appellant had declined to get his blood group tested, an adverse inference should be drawn against the appellant. Although he had rejected the application (Ex. 52) on behalf of the State for sending the appellant to the civil hospital, Osmanabad for ascertaining his blood group, the learned Sessions Judge accepted the submission on behalf of the State that as the appellant had declined to get his blood group tested, an adverse inference should be drawn against the appellant. He also concluded that the motive for the crime was established by the fact that as stated by Gangubai, the mother of the appellant, the appellant did not like the behaviour of Nilavati and that when questioned by his mother on the evening of the day while he returned alone, he told his mother that Nilavati had gone to lead a stray life. He, therefore, concluded that the witnesses Madhav and Saheba are witnesses of truth since their evidence was corroborated by the circumstances just referred to above. He held that it was the appellant who was responsible for the murder of his sister and also in disposing of the head in the well with intent to screen himself from legal punishment. He, therefore, convicted the appellant both for the offence of murder under section 302 and for the offence under section 201 of the Indian Penal Code. 13. Dealing with the question of sentence, the learned Judge took the view that although the appellant was a young boy of 21 or 22, and was disgusted with the behaviour and conduct of his sister, the offence was cool calculated and cold blooded. Therefore, he awarded the extreme sentence of death and has made a reference to this Court for confirmation of the same. The accused appellant also has preferred an appeal. The preference and the appeal are being heard together and shall be disposed of by this single judgement. 13-A. It was argued on behalf of the appellant that the evidence of Madhav and Saheba is not natural and they appear to be get up witnesses. It is also submitted that there are no sufficient circumstances established to bring home the guilt to the appellant. As against that it was argued on behalf of the Sate that witnesses Madhav and Saheba are witnesses of truth as they are corroborated by the evidence of Dr. Rohinkar on the point of injury sustained by Saheba and by the circumstances and relied upon by the prosecution. 14. As against that it was argued on behalf of the Sate that witnesses Madhav and Saheba are witnesses of truth as they are corroborated by the evidence of Dr. Rohinkar on the point of injury sustained by Saheba and by the circumstances and relied upon by the prosecution. 14. It may be mentioned that there is no dispute before us that Nilavati has died a homicidal death. The unchallenged evidences for the prosecution including that Gangubai and even the admission of the appellant would show that Nilavati had names of her brothers and Gorakh tattooed on her right forearm. The deadbody without the head which was discovered by the Police Patil Sampat of Dhekari read with the inquest panchnama (Ex. 15) and the evidence of Dr. Ingale (P.W. 19) who has held the postmortem and prepared the postmortem notes (Ex. 47) would show that the deadbody did have the names of all the brothers of Nilvati tattooed in the forearm. The clothes (Articles 9, 10 and 11 ) which were found on the deadbody are proved by the unchallenged evidence of Gangubai and even by the admission of the appellant to be the clothes which were on the person of Nilavati. The identity of the dead body as the dead body of Nilavati is no longer indispute. We have also the evidence of Dr. Kolte, the anatomist to show that the head and the deadbody belonged to the same person. There is, therefore, no dispute that Nilavati died a homicidal death. 15. The question which we have to consider is as to whether it is the appellant who is responsible for the death of Nilavati. For proof of its case against the appellant the prosecution wants to rely on (1) motive; (2) on the evidence of Gangubai about the appellant and his sister Nilavati having together left the house for Piparpatti field on the date of the incident and the appellant alone having returned to the house in the evening; (3) on the eye-witness account of Madhav (P.W. 5) and Saheba (P.W. 6); (4) on the discovery of the blood stained banian (Article 1) on the person of the appellant which according to the report of the Chemical Analyser (Ex. 50) was stained with identical B group of human blood with which the ribbon (Article 8) and Tur leaves and stumps (Articles 5 to 8) found on the scene of offence in the Piparpatti field were also stained; (5) on the recovery of the axe (Article 4) at the instance of the appellant; and (6) on the discovery of the head of Nilavati at the instance of the appellant. Now if this evidence is believed in toto no doubt it could beheld that the appellant might have had some concern with the incident. 16. We have, therefore, to consider the above circumstances or evidence on which the prosecution wants to rely. The first question of motive need not detain us. All that Gangubai, the mother of the appellant, has stated is that the girl Nilavati was first married to one Rama of Dhanegaon and after residing with him for a month she left his house. Thereafter Gangubai brought about the second marriage of Nilavati with one person from Sholapur whom name Gangubai does not recollect. Thereafter Nilavati accompanied by her cousin brother Gorakh went to Poona for about 2-3 months and then returned to Apshinge. Gangubai has concluded by saying that she and her sons did not like the behaviour of Nilavati. The accused-appellant had denied that he did not like the behaviour of his sister. It may be mentioned that as appears from Gangubais evidence her second daughter Kalavati who is married was at Poona at the relevant period where she had gone to earn her livelihood as it was a year of famine in Osmanabad District from where the parties bail. Therefore, all that the prosecution has been able to bring on record is the statement of the mother Gangubai to the effect that she and her sons did not like the behaviour of Nilavati. Even if this were true it would appear that attitude of mind of the appellant was shared by the entire family including his three other brothers. It is no where the prosecution case that at any time prior to the incident there were any incidents wherein the appellant had shown any greater concern than his other brothers over the behaviour of his sister Nilavati. Therefore, this circumstance of alleged motive is too week for words. 17. It is no where the prosecution case that at any time prior to the incident there were any incidents wherein the appellant had shown any greater concern than his other brothers over the behaviour of his sister Nilavati. Therefore, this circumstance of alleged motive is too week for words. 17. As regards the circumstance of the appellant having left the house along with the deceased on the date of the incident and alone returning in the evening we have again the evidence of Appellants mother Gangubai. Gangubai has stated that on Wednesday about 8 days after the marriage of Arjun, Nilavati went out of her house. At that time the witness was not keeping good health. The appellant and Nilavati went to the field to pluck Tur nuts, at about breakfast time. In the evening on that day appellant alone returned to the house Gangubai and others asked the appellant as to where Nilavati was. The appellant told her that she had fled away to lead a stray life. It may be mentioned that although this witness was sent for her statement being recorded under section 164, Criminal Procedure Code, she was not prepared to make any statement which is only understandable as the case involved both her sons viz., the present appellant and original accused No. 3. But is further appears from her cross-examination that in her statement before the police she has not stated that when questioned the appellant stated to her that Nilavati had fled away to lead a stray life. The witness is, therefore, making an improvement over her earlier statement before the police when she would have us believe that when questioned, the appellant remarked to her that Nilavati had fled away to lead a stray life. But at the same time when it was suggested to her in the cross-examination that Nilavati and the appellant had not at all gone out of the house in her presence, the witness maintained that they had in fact gone out of the house in her presence. She denied that she was giving any false evidence in that connection. But at the same time when it was suggested to her in the cross-examination that Nilavati and the appellant had not at all gone out of the house in her presence, the witness maintained that they had in fact gone out of the house in her presence. She denied that she was giving any false evidence in that connection. Having regard to the fact that she is after all the mother of the appellant and there is nothing unnatural in the brother and sister leaving the house together, we do not see any reason to suspect the version of mother Gangubai when she says that on the date of the incident the appellant and Nilavati left the house at about breakfast time, and the appellant alone returned in the evening. We will, therefore, hold this circumstance as being established. 18. The next question to be considered is as to whether the two witnesses Madhav and Saheba could be relied upon with safety. It may be mentioned that the evidence of both these witnesses is identical. We have already set out the substance of the evidence of these two witnesses in great detail while stating the case for the prosecution. We cannot, however, persuade ourselves to rely on their testimony as has been done by the learned Sessions Judge. The very first infirmity in the evidence of both these witnesses is that both of them have stated that till their statements were recorded by the police they had not out and told anybody about the incident they have deposed to in Court. The question would, therefore, arise as to how then the P.S.I. could at all come to know that these two boys would, throw any light about the incident. Evidence of the P.S.I. is silent on the point as to whether he examined these witnesses either before or after the arrest of the appellant. All that he has stated is that he examined 67 witnesses before the arrest and 67 witnesses after the arrest without specifying their names. The learned Public Prosecutor even after looking to the police record told us that since no time is mentioned in the police statement it is not possible for him to say from the material as to when these witnesses were examined whether before or after the arrest of the appellant. The learned Public Prosecutor even after looking to the police record told us that since no time is mentioned in the police statement it is not possible for him to say from the material as to when these witnesses were examined whether before or after the arrest of the appellant. We are, therefore, left in the dark as to how, if these witnesses had not told anybody whatsoever about what they have stated in Court, the P.S.I. could lay his hands upon them. 19. The next infirmity in their evidence is that their evidence and conduct are highly unnatural and improbable. According to both them while both of them were together grazing their cattle, near the Piparpatti, the appellant and his sister together came. First the sister went ahead and the appellant also went further after asking the witnesses to go away on the ground that he was expecting his employer to come. They would have us believe that after the appellant went towards his sister where there was a Tur crop, both of them climbed the Babul tree and saw the appellant raising the axe in his hand with both the hands, twice or thrice. While Saheba does not state that there was any conceivable reasons as to why on earth they thought of climbing the branch of a Babul tree, Madhav states that because they wanted to have a better view of what the appellant was doing in the Tur crop, they both climbed the Babul tree and saw the movements of the axe by the appellant. Both of them have agreed that they did not hear any shouts coming from the direction of the place of incident. Their evidence and conduct therefore, would appear to be highly unnatural and improbable. The learned Sessions Judge did see the force of the argument that since no cries were heard by these witnesses which they should have surely heard if they were at a distance of hardly 135 paces as stated by them, it would not be safe to rely on the evidence of these witnesses. But the learned Sessions Judge proceeded to get over that infirmity by surmising that it may be that with one stroke the victim might have become unconscious. We think the reasoning is hazardous. But the learned Sessions Judge proceeded to get over that infirmity by surmising that it may be that with one stroke the victim might have become unconscious. We think the reasoning is hazardous. When the witnesses are witnesses of the type with whom we are dealing and when the evidence and the conduct of the witnesses is highly unnatural and improbable and when as we shall presently show the investigation is open to adverse criticism it is not possible to explain away serious infirmities like the want of cry from the scene of offence, on the surmise that the first stroke might have made the victim unconscious. On the other hand we are inclined to think that this solitary circumstance would show that these witnesses are not witnesses of truth. For whatever it is worth, it may be also noted that Madhav had no business to go to that spot. In the first place he is a school going boy who was reading in the 9th standard. He stated that because his brother who does that job had gone to another village, he took leave from the school and had gone to graze the cattle. But then on his own showing his land is in the opposite direction and not in the direction of the scene of offence. That would make his presence near the scene of offence. That would make his presence near the scene of offence unnatural and improbable. Again, for whatever it is worth, it may be noted that in his statement before the police, he has not at all stated that the appellant removed the pyjama, shirt and cap from his person and he was having only the banian and nicker on his person. It is worthwhile to note that this omission it the police statement and improvement at the trial could not be said to be innocent or innocuous. It is apparently made with the oblique motive of trying to explain away the fact that while blood stained banian was traced to the appellant, no other clothes with blood have been traced to the appellant. Again, for whatever it is worth, it may be noted that he has been confusing the date of incident inasmuch as he stated that the incident took place on December 20, 1974. 20. Again, for whatever it is worth, it may be noted that he has been confusing the date of incident inasmuch as he stated that the incident took place on December 20, 1974. 20. As regards Saheba also it is significant to note that though he denied, it is got proved from the Investigating Officer, that he has not stated before him that the appellant was having a banian on his person after he removed his clothes. In other words in the case of both these witnesses there is an identical omission in their police statement and improvement at the trial about the accused having removed his pyjama and shirt from his person and proceeded towards the Tur crop only with the banian and nicker. For the reasons already advanced by us while dealing with the evidence of Madhav, it would appear that this improvement is by no means innocent but has been done with the deliberate oblique motive of explaining the fact that no blood stained pyjama, shirt or cap was traced to the appellant. The fact that these witnesses could make such material improvement would show that for reasons best known to themselves they want to strengthen the case for the prosecution. It is worthwhile to note that as stated by the P.S.I. these witnesses were sent for their statement being recorded under section 164 of the Criminal Procedure Code which would go to show that the investigation itself had considered that these witnesses may not stick to their statements purporting to have been made in the investigation. 21. It is, however, argued on behalf of the State that if these witnesses were to tell a falsehood they would not have stopped short by giving the evidence which they have done and would hare proceeded to state that they actually noticed the appellant giving the strokes on the person of Nilavati. In fact it is on this very specious reasoning that the learned Sessions Judge has proceeded to believe these witnesses. In fact it is on this very specious reasoning that the learned Sessions Judge has proceeded to believe these witnesses. But then it is significant to note that since on their own showing they had not at all disclosed to anybody about their having any knowledge about the incident, till their statements came to be recorded by the police, they or persons interested in the investigation must have realised that it would have been foolish to make them state that they had actually witnessed the assault on the deceased by the appellant. In other words such a statement could not have been made by them in view of the conduct of these witnesses in not disclosing to anybody anything about the incident till their statements were recorded by the P.S.I. 22. It is then submitted that since the evidence of these witnesses is corroborated by the evidence of Dr. Rohinkar (P.W. 18), there is no reason to suspect them. Dr. Rohinkar no doubt has stated that on December 11, 1974 at about 7.30 p.m., Saheba had been to his dispensary for a cut injury on the middle finger and when questioned by the witness Saheba told the witness that he had asked the appellant to give his axe and caught hold of it and that while it was being snatched the injury was caused to his finger. From this its argued both for the State and by the learned Sessions Judge that the evidence of the two witnesses Madhav and Saheba has been corroborated. We are unable to agree with the submission. All that Saheba has stated is that on the date of the incident he went to the dispensary of Dr. Rohinkar where he got the injury treated. It is now here stated by him that he made any statement concerning the appellant which is attributed to him by Dr. Rohinkar. Therefore, in the absence of any such statement by the witness, the evidence of Dr. Rohinkar on the point would be hearsay and not legal evidence. The evidence of Dr. Rohinkar would have been corroborative evidence if Saheba were to give evidence on that point. Since that is not the evidence of Saheba, the evidence of Mr. Rohinkar on that point about the injury being at attributed by Saheba to the appellant has got to be excluded as hearsay and inadmissible to evidence. The evidence of Dr. Rohinkar would have been corroborative evidence if Saheba were to give evidence on that point. Since that is not the evidence of Saheba, the evidence of Mr. Rohinkar on that point about the injury being at attributed by Saheba to the appellant has got to be excluded as hearsay and inadmissible to evidence. If that is so all that we are left with is that the witness stands corroborated by Dr. Rohinkar only to the limited extent that on that date in the evening he had been to the dispensary of Dr. Rohinkar and was treated for a cut injury. But that by itself could hardly corroborate the version of the witnesses Saheba and Madhav. Although he learned Sessions Judge has observed that he had watched the demeanour of the witnesses, having regard to the infirmities in their evidence inasmuch as it is not known how their names came to be transpired in the course of the investigation and when they were examined and since their evidence and conduct is highly unnatural and improbable and they have tried to make material improvements in a bid to help the prosecution and the investigation itself suspected their evidence inasmuch as they were sent up for their statements being recorded under section 164 of the Criminal Procedure Code, we do not think it safe to rely on the testimony of any of these two witnesses, who have given parrot like evidence and have made parrot-like material improvements and given unbelievable details even about the ribbon which was worn by the deceased, the whole of which given an impression of their being tutored to make identical statements. 23. As regards the blood stained banian (Article 1) being found on the person of the appellant at the time of his arrest, P.S.I. Velapure and Panch witness Ganesh (P.W. 12) have not been challenged on that point. On the other hand it was suggested to both of them that the blood stains thereon were due to the fact that there were bleeding scabies on the person of the appellant. The appellant has also admitted when examined under section 313 of the Criminal Procedure Code, without mincing matters that he banian (Article 1) was on his person at the time of his arrest. The appellant has also admitted when examined under section 313 of the Criminal Procedure Code, without mincing matters that he banian (Article 1) was on his person at the time of his arrest. However it was only when questioned with regard to the evidence about the same being stained with blood, the appellant stated that, is false. Having regard to the stand taken by the defence at the time of the examination of the panch and the Police Officer and the immediate preceding answer of the appellant to question No. 27 about his being found with the banian (Article 1) on his person at the time of his arrest, simply because the appellant when questioned about the blood stains on his person did not attribute the blood stains to the bleeding scabies and on the other hand stated that, that evidence is false, we would not be justified in holding that he has come forward with any false explanation. Having regard to the definite stand taken at the trial and the examination of the witness and the earlier answer of the appellant to question No. 27, we have no difficulty in holding that the appellant was in fact wearing the banian (Articles 1) on his person at the time of his arrest and that it was stained with blood. We have also no doubt in holding that having regard to the Chemical Analysers report (Ex. 50) that this banian had B group of human blood and the blood stains were of moderate number ranging from 0-1 to 1 cm. in diameter distributed mostly on front side. We have also no doubt in our mind that his banian was stained with identical B group of human blood with which (Articles 5 to 8) including the ribbon of the deceased and the Tur leaves and earth found in the Tur crop in the Piparpatti field were stained. We would, therefore, hold that this fact that the Appellants banian was stained with identical B group of human blood with which the ribbon (Article 8) of the deceased which was found in the Tur crop was also stained. We, however, do not agree with the reasoning of the learned Sessions Judge that because the accused did not submit to his blood being tested by the Civil Surgeon as requested by (Ex. 52) by the State, an adverse inference should be drawn against the appellant. We, however, do not agree with the reasoning of the learned Sessions Judge that because the accused did not submit to his blood being tested by the Civil Surgeon as requested by (Ex. 52) by the State, an adverse inference should be drawn against the appellant. In fact the learned Sessions Judge rightly rejected that application inasmuch as the appellant cannot be compelled to submit to such a test. That would be surely in conflict with the protection given by Article 20(3) of the Constitution of India. But then the learned Judge was certainly in error in having drawn an adverse inference against the appellant for not having submitted himself to a blood test. The position, therefore, is that while we do not know the blood group of the appellant his banian is found to have been stained with identical B group of human blood with which the ribbon (Article 8) and the leaves and earth (Articles 5 to 7) which were found in the Tur crop in the Piparpatti land were stained. 24. The circumstance about the axe (Article 4) being discovered at the instance of the appellant even if discovery were accepted is of no consequence inasmuch as according to the report of the Chemical Analyser (Ex. 50) the axe (Article 4) was not at all stained with human blood. Even here were are amzed to fined that the learned Sessions Judge has accepted this evidence of alleged discovery and has gone on to argue that it may be that after committing the assault the accused went and washed off the axe in the nearby Odha and that explains why there were no blood stains on the axe. Needless to say that such a reasoning is not permissible when there is no reliable clinching eye-witness account about the incident. We may also mention here that the material on record shows that it is not possible to accept the version of the prosecution that the axe was recovered at the instance of the appellant and that on the other hand there is considerable force in the submission of the appellant that it must have been found in the search of the house. It is true that both P.S.I. Velapure and panch Ganesh would have us believe that the accused made a statement and that statement was reduced to writing in the form of memorandum (Ex. 29). It is true that both P.S.I. Velapure and panch Ganesh would have us believe that the accused made a statement and that statement was reduced to writing in the form of memorandum (Ex. 29). Now when we read that memorandum in which the statements alleged to have been made by the appellant have been mentioned into inverted commas, we find that the appellant has been alleged to have mentioned the date as 11-12-1974. Had the learned Sessions Judge looked into this statement and similar statement in the other discovery statement to follow, he would have immediately realised how the entire story of alleged discovery is suspect. The appellant is afterall an illiterate Mang labourer staying in a remote place in Osmanabad District. In fact most of the witnesses have deposed by reference to the festival like Tulsi Vivah. For instance they have talked about the marriage of Arjun the brother of the appellant, 8 days after Tulsi Vivah and they have also referred to the date of the incident as 8 days after that date of Tulsi Vivah. The record further shows that the appellant is illiterate and has put his thumb impression on this alleged statement. Inspite of that when the date as 11-12-1974 is mentioned as part of the statement alleged to have been actually made by the appellant, it would appear that the alleged statement could not have been his and it has been only attributed to him. We, therefore, hold differing from the learned Sessions Judge that the finding of the axe with no blood stains in the house possibly in the search as alleged by the appellant is of no consequence and that the theory that it was discovered as a result of statement made by the appellant cannot stand the test of scrutiny. 25. That leads us to the alleged discover of the head of the deceased in the well of one Bhima Vadgaonkar. The defence is not interested in disputing the fact that in the well of one Bhima Vadgaonkar by having removed a large portion of the water with the engine supplied by one Baburso Nimbalkar (P.W. 13) the said Babu ultimately dipped when the water was about 4 ft. deep and discovered the head. But the real question to be considered is as to whether the discovery of that head was at the instance of the appellant. deep and discovered the head. But the real question to be considered is as to whether the discovery of that head was at the instance of the appellant. For proving its case that it was so, prosecution has relied upon the evidence of P.S.I. Velapure (P.W. 20) and panch Ganesh (P.W. 12) and the Memorandum of the alleged statement of the appellant at (Ex. 33) Now in this alleged memorandum where the statement alleged to have been made by the appellant in his own words has been mentioned into inverted commas we find mention of the date of the offence as Wednesday, 11-12-1974 and the date of the throwing of the head in the well of Bhima Vadgaonkar as 14-12-1974. For the reasons already advanced by us while dealing with a similar date mentioned in the earlier statement (Ex. 29) covering the axe we have no doubt in our mind that the appellant, an illiterate boy could never mention such dates. In other words what is mentioned in the inverted commas definitely contains something which the appellant could not have stated. That would immediately show that what has been mentioned in the inverted commas including the statement of throwing of the head, is extremely suspect and cannot be relied upon for a moment. In fact this very statement would make the entire investigation suspect, and that as we had mentioned is also one of the reasons why we could not persuade ourselves to rely on the evidence of Madhav and Saheba. 26. For whatever it is worth, again the prosecution tried to examine one Pandit (P.W. 10) who came forward with the story that on 13-12-1974 he having noticed a dog carrying a head of a woman in its mouth and proceeding from Piparpatti field, conveyed the information to the police Patil Narayan (P.W. 11) on the next day. This Narayan in turn came forward with the story that thereafter he sent accused No. 3, Kotwal to go towards the Piparpatti and to find out what the matter with regard to the head was and after some time accused No. 3 came and reported to him that there was nothing of that sort. This gentleman though a Police Patil did not bother to make any further inquiries in the matter. This gentleman though a Police Patil did not bother to make any further inquiries in the matter. Though he denied when questioned, it is got proved from the Investigating Officer, that he has in fact stated before the Investigating Officer that on 14-12-1974 there was a talk in the village that a head of a woman was to be seen near the land of Piparpatti. It is not known why the prosecution examined the witnesses like Pandit and the Police Patil Narayan Shanker. Evidently the idea seems to be an attempt to show that accused No. 3 who had gone at the suggestion of the Police Patil might have removed the head of the woman. No explanation is forthcoming as to why if in the village on 14-12-1974 there was a talk in the village about the head of a woman being seen near the land Piparpatti, no steps were taken by this Police Patil Narayan who has served for about 26-27 years as the police patil of the village. If that was a rumour in the village on 14-12-1974 one also fails to see why the other witnesses for the prosecution including Saheba and Madhav should not have disclosed to others the story which they came to state for the first time before the P.S.I. As we have already pointed out there is no specific or exclusive motive for the appellant to get rid of his sister and the displeasure if any for her behaviour which the appellant had was actually shared by his three other brothers and mother. The land Piparpatti in question actually belonged to one Bhagwan of Osmanabad and the appellant and accused No. 2 were both working as labourers in that field. Under the circumstances nobody could have disposed of the head in the well which must have been known to some persons in the village. 27. We may also mention here that the prosecution also examined two other get up witnesses viz. Mahadev (P.W. 14) and Babu Mali (P.W. 15) to connect the appellant and other accused with the disposal of the deadbody from Piparpatti, towards Dhekari tank. The learned Sessions Judge has rightly rejected that evidence and we need not say anything more about that concocted evidence. This is a case which pristles with concocted evidence. Mahadev (P.W. 14) and Babu Mali (P.W. 15) to connect the appellant and other accused with the disposal of the deadbody from Piparpatti, towards Dhekari tank. The learned Sessions Judge has rightly rejected that evidence and we need not say anything more about that concocted evidence. This is a case which pristles with concocted evidence. The statements alleged to have been attributed to the appellant are extremely suspicious and in any event they can never be acted upon having regard to the dates which are mentioned therein. We have, therefore, no doubt that these statements which are attributed to the appellant including the statement concerning the throwing of the head in the well of Bhima Vadgaonkar cannot be relied upon for a moment. The learned Sessions Judge ignored these inherent infirmities which are apparent on the face of the record of the prosecution itself. We are, therefore, of the view that this circumstance of the alleged discovery of the head of Neelavati at the instance of the appellant has not been established. 28. All that we are therefore left with is that the appellant and his mother and his brothers all shared the common feeling that Neelavati was not behaving properly. Therefore, the motive which is weak was actually shared by others. 29. The appellant left his house in the morning with his sister and returned alone in the evening. There is no evidence to show that they together went to the field and were in the field once the evidence of Saheba and Madhav is discarded as we have done. Even after the return of the appellant in the evening nobody in the family has bothered to find out where Neelavati had gone and, therefore, there was no reason for the family members to suspect anything sinister so far as the appellant was concerned. The last circumstance which is proved is that the appellant was found wearing a banian which was stained with the identical B group of human blood which was also found on the ribbon of the deceased and leaves and earth (Articles 5 to 8) which were found in the Tur crop in Piparpatti. These circumstances in our opinion, would not be sufficient to bring home the serious charge of murder to the appellant. These circumstances in our opinion, would not be sufficient to bring home the serious charge of murder to the appellant. The submission that even if the charge of murder is not established at least the appellant should be held guilty for the offence under section 201, Indian Penal Code, or having disposed of the deadbody also cannot be accepted having regard to our finding that the prosecution has failed to prove that the discovery of the head was made at the instance of the appellant. 30. In the result, disagreeing with the learned Sessions Judge we hold that no offence is brought home to the appellant and, therefore, we quash his conviction and sentence and allow the appeal. 31. The appeal is allowed. The order of conviction and sentenced passed by the learned Sessions Judge against the appellant is set aside. The appellant be released forthwith unless he is required in connection with some other case. -----