JUDGMENT (ORAL) M.B. Ghodeswar. J. - The Second Additional Sessions Judge. Akola by judgment dated 8-10-1996 has convicted Bharat Kisan Dhande, original accused no. 1 for the offence punishable under section 302 I.P.C. and sentenced him to death subject to the confirmation of this Court. The Second Additional Sessions Judge. Akola by letter dated 11-10-1996 has sent record and proceedings of the Sessions Trial with judgment for confirmation of death sentence. The accused-appellant has filed appeal against the judgment passed by 2nd Additional Sessions Judge, Akola. Therefore, Confirmation Case and appeal are being disposed off by a common Judgment. 2. The facts of the prosecution case in short are as under: - Deceased Parvatabai wife of Mahadeo Doifode and Mahadeo Doifode were residing in a house at Asegao. Mahadeo Doifode was ailing for sometime and he wanted to sell his property at Asegao and settle at Akot Taluka place. He, therefore, wanted to dispose of his immovable and moveable property of Asegao. Another deceased Suryabhan Doifode, aged 90 years was the elder brother of Mahadeo and his house was in the vicinity. The incident of murders and robbery has taken place in the night intervening between 6th and 7th of March, 1995 in the house of Mahadeo Doifode at Asegao. As Mahadeo had gone to Sail and in Buldana district, Suryabhan went to the house of Mahadeo in the night for sleeping. It is the prosecution case that both the deceased Parvatabai and Suryabhan were sleeping on different cots, one in the Chhapri and another inside the room. Both of them were subjected to fiancé, their mouths, noses being pressed by some soft material by the culprits and they-died due to asphyxia. The murders were noticed in the morning. P.W. 1 Ramesh son of deceased Suryabhan lodged report (Exh. 13) in Police Station, Akot a place 13 Kms. away from Asegaon. The police arrived at Asegao conducted inquest on the dead bodies of Paravatabai and Suryabhan; effected spot panchnama, sent dead bodies for post-mortem examination. P.I. Mirge recorded statements of some persons. It was disclosed in the inquest reports that the tongues of both the deceased were inside their mouths and were pressed. The postmortem reports confirmed, that the deceased died due to asphyxia. No articles were found missing from the house. P.I. Mirge recorded statements of some persons. It was disclosed in the inquest reports that the tongues of both the deceased were inside their mouths and were pressed. The postmortem reports confirmed, that the deceased died due to asphyxia. No articles were found missing from the house. The police do not receive any clue of the crime till the seizure of one Inland letter from P.W. 1 (Exh. 15), which was seized from Police Path, Gajanan on 28-3-1995. On 2-4-1995 Bharat Kisan Dhande and another accused Laxman Mangal Raibole were interrogated and arrested at about 12.45 to 12.50 p.m. in Police Station, Akot. Accused Bharat expressed his willingness to show the place where two tin boxes were concealed. In presence of Panchas Memorandum Exh. 53 was recorded. In pursuance to this memorandum, two tin boxes were recovered from the field of one Shiwankar in the vicinity of Assegao and Wadnagangai. It was at the instance of both the accused. 3. It has transpired in the investigation that accused Bharat had removed two necklaces, one golden chain and another having beads of gold described as 'Mala'. In pursuance of his information, one golden chain was recovered from his grand-mother Janabai (P.W. 24) and another from Amol Vinchurkar goldsmith (P.W. 20). These chains were identified by P.W. 18 Mahadeo, P.W. 17 Ramabai and P.W. 19 Geetabai both daughters of deceased Parvatabai. P.W. 1 Ramesh was arrested in this crime on 10-4-1995. His police custody remand was taken for two days. He was released on bail on 26-4-1995 and the Investigating Officer filed application under section 169 Cr. P.C. for his discharge and he was discharged on 3-7-1995. On the very same day charge-sheet was submitted against two accused - Bharat and Laxman after completion of necessary investigation. 4. During trial, prosecution examined in all 26 witnesses. P.W. 1 Ramesh son of deceased Suryabhan has deposed that on 6-3-1995, his father Suryabhan went to the house of Parvatabai for sleeping as his uncle Mahadeo had gone to Sailani. On the next day, his son went to the house of Paravatabai for giving milk. Inspite of his repeated call, nobody opened the door. He came back and informed P.W. 1. P.W. 1 went and pushed the door. It was opened as the same was not chained from inside. He went inside the house and noticed Parvatbai and his father sleeping. Inspite of his repeated call, nobody opened the door. He came back and informed P.W. 1. P.W. 1 went and pushed the door. It was opened as the same was not chained from inside. He went inside the house and noticed Parvatbai and his father sleeping. He gave them call but there was no response. He was frightened and, therefore, he went and informed the police patil. After arrival of police patil, they noticed that both of them were dead. Along with Police Patil he went to the Police Station, Akot and lodged report Exh. 13. He has also stated that he handed over the inland letter, which was received by post to the police and it was seized under Exh. 15. In cross-examination, he has admitted that civil dispute for the land was pending between his father and uncle. His uncle Shaligram was claiming share in the shop and therefore there is dispute between his uncle and his father. He does not know how many persons were arrested by the police in connection with this case. The son and daughters of Parvatabai were staying at Asegao. He denied that Anita Donge was frequently visiting the house of Parvatabai and she was looking after Parvatabai, He was confronted with portion marked 'A' of his statement recorded under Section 161 Cr.P.C. He has state that Anita Dongre was visiting Parvatabai's house every morning. He had no knowledge that Narayan Patil gave poison to Prakash Nare and tried to administer poison to his uncle and aunt. He denied to have stated to the police portion marked 'B' from his statement. He does not know who has written inland letter Exh. 15. A suggestion was made to him that to save himself from the charge of murder, this letter Exh. 15 was written by him which he denied. He also denied that Anita Dongre told police that he is the murderer of his father and aunt. He also denied portion marked 'C' from his previous statement to this effect. 5. P.W. 2 Shridhar Bhaltilak is a panch witness. He stated that one pair of shoe was seized from Denesh Dhande in his presence vide Seizure memo. Exh. 18 on 4.4.1995. On the same day, alongwith both accused he went to Amravati to the shop of a goldsmith Anandrao Thorat. On production by Anand Thorat, ornaments were seized under seizure panchnama Exh. 19. He stated that one pair of shoe was seized from Denesh Dhande in his presence vide Seizure memo. Exh. 18 on 4.4.1995. On the same day, alongwith both accused he went to Amravati to the shop of a goldsmith Anandrao Thorat. On production by Anand Thorat, ornaments were seized under seizure panchnama Exh. 19. On 5-4-1995, alongwith accused, he had gone to the village Dhangarkheda, where grand-mother of accused Bharat was residing. From her house, golden chain (mala) was seized under seizure Panchanama Exh.20. On the same day, he was also present at the house of Sitabai Dhande, when she produced of disco beads, which was seized under seizure panchnama Exh. 21. He also stated that he is related to the police patil Board and he has acted as a panch at his instance. 6. P.W. 3 Shrikrishna Dhande is also a panch. He stated that one tin box was seized from Balkrishna as per seizure memo. Exh. 44. He stated that Mahadeo was selling household articles and a dispute was pending regarding property between Mahadeo and his brother. The relations between P.W. 1 Ramesh and his father were strained. Mahadeo sold many articles like boxes to the persons of the village. 7. P.W. 4 Gajan Pundkar is police patil of village Asegao, P.W. 1 is his neighbour. He stated that P.W. 1 told him that he received a letter regarding theft and murder. He read the letter and alongwith P.W. 1 went to the police station, Akot. The letter was seized by the police. He has admitted that he has not stated that it is mentioned in the letter that Laxman and Bharat might have committed the murders. 8. P.W. 5 Dr Sunita Japsare, is a Medical officer who conducted postmortem over the dead bodies of Parvatabai and Suryabhan on 7-3-1995. She has deposed that she noticed abrasion on the right wrist interiorly size ½" x. ½" on the dead body of Parvatabai. Contusion on nose present, Right lung congested on section, frothy blood stained fluid executes, not emitting any smell. She opined that the probable cause of death was due to asphyxia. She also opined that if pillow or quilt is pressed against the nose and mouth. She further opined that injuries on the dead body are also possible due to resistance. On the same day, she performed post mortem examination on the dead body of Suryabhan. She opined that the probable cause of death was due to asphyxia. She also opined that if pillow or quilt is pressed against the nose and mouth. She further opined that injuries on the dead body are also possible due to resistance. On the same day, she performed post mortem examination on the dead body of Suryabhan. She stated that no external injury was found. Right lung was found congested. On section frothy blood –stained fluid executed. She has given similar opinion that the probable cause of death of Suryabhan is due to asphyxia. She also similarly stated that asphyxial death can be caused if pillow or quilt is pressed against the nose or mouth. She has admitted that Carbon Mono Oxide can spread if the lamp is burning and if there is no ventilation a person could not get fresh air and then there is possibility of mental and physical weakness. A person dies due to spreading of carbon-mono-oxide, then probable cause of death will be asphyxia and same symptoms of lungs appear. In case of strangulation tongue will come out. 9. P.W.6 Narsing Rajurkar has acted as a panch for memorandum and discovery. He has stated that on 2-4-1995, one Shrikrishna Bhatkar was also called at the police station by the Police. Both accused were present there. Nothing took place in his presence at the Police Station. He admitted that Memorandum Panchanama Exh. 53 and Seizure Panchanama Exh. 54 bear his signatures. He has also stated that he does not recollect as to when and where first and second signatures were taken. He has further stated that after getting down from the jeep, accused Bharat had shown the place. Both the accused dug the place and took out two iron boxes, which were burried under the earth. He identified iron boxes Articles 16 and 17. He also identified clothes, which were found in the boxes. During cross-examination, he admitted that he is running his Hair Cutting Saloon in front of Police Station. Many times police obtained his signatures. He used to attend the Court as panch witnesses. He has denied a suggestion that he had seen iron boxes lying at the place of incident from some distance. He admitted that some villagers were standing 500, away from the place where the articles were lying. 10. P.W. 7 Shrikrishna Gatkar is also a panch of Exhs. 53 and 54. He used to attend the Court as panch witnesses. He has denied a suggestion that he had seen iron boxes lying at the place of incident from some distance. He admitted that some villagers were standing 500, away from the place where the articles were lying. 10. P.W. 7 Shrikrishna Gatkar is also a panch of Exhs. 53 and 54. He deposed that on 2-4-1995, he and Narsingh were called at the Police Station. Both the accused were present there and in his presence accused Bharat told that the property was burried in a field and that they will produce it. His statement was reduced in writing. His signature was taken on Exh. B3. He further stated that accused Bharat led the police staff and Panchas in ploughed field. The boxes were, buried under the earth. Earth was removed by the accused Bharat and he took out two iron boxes Articles 17 and 18. He has also admitted that his Tea Stall is situated in front of Police Station and it is situated on Nazul land. However, he has denied that Police always obtained his signatures. He denied that when he reached in the field, corner of iron box was seen. 11. P.W. 8 Mohan Nathe is also a Panch. He stated that on 5-4-1995, in his presence Mahadeo identified articles shown to him. Those articles were two iron boxes, two gold malas and clothes. He stated that Panchanama was recorded in his presence and his signature was taken on Exh. 57. He stated that Articles 17 and 28 iron boxes are the same boxes, which were identified by Mahadeo. 32 Oectagonal Golden beads 30 black disco beads, one pair of ear-rings and one golden beads mala having two dorlas and four red beads are the same articles which were identified by Mahadeo in my presence. He admitted that he was called by S.O.P.O. Chavan and asked him to sign on the papers, which were already written. Mahadeo did not utter a word in his presence. He has admitted his signatures on the Identification Panchanama Exh. 57. 12. P.W. 9 Hemraj Verma is a goldsmith. On 6-4-1997, he stated that he was called at the Police Station. Article 39 mala was shown to him and he weighed and certified by him that mala was of 22 caratte gold, having gross weight 20 Gm. 400 Ml. He has admitted his signatures on the Identification Panchanama Exh. 57. 12. P.W. 9 Hemraj Verma is a goldsmith. On 6-4-1997, he stated that he was called at the Police Station. Article 39 mala was shown to him and he weighed and certified by him that mala was of 22 caratte gold, having gross weight 20 Gm. 400 Ml. Gm and net weight of gold was 13 Gms. 800 Ml. Gms. Certificate exh. 50 was issued by him under his signature. 13. P.W. 10 Oinesh Ohande, younger brother of Bharat stated that show was seized from him. P.W. 11 Krishnikant Shetani is a Hotel owner from Wadner-Gangai. He has stated that he did not remember date and month when accused visited his hotel. P.W. 12 Ratnagir Gosawi is also a hotel owner at Wadner-Gagai. He stated that he knew the accused but he could not tell as to how many days prior accused visited his hotel. P.W. 13 Puransa Mawale is running a liquor shop and he stated that he could not identify the accused. P.W. 14 Gajanan Ohande has stated that he never met accused Bharat prior to the death of Suryabhan and Parbatabai. With the permission he was cross-examined by A.P.P., when he admitted that his statement was not recorded by the Police as he had stated portion marked 'A'. P.W. 15 Ashok Ohande has also not supported the prosecution and he denied to have stated portion marked 'A'. P.W. 16 Prakash Ohande has stated that Laxman had brought two small frocks one small half-pant and one shirt for stitching to him 11/2 months prior to police came to his shop. 14. P.W. 17 Ramabai Rathod is daughter of Mahadeo has identified two tin boxes articles 16 and 17 article 39 Golden chain (mala), article 30 pair of ear tops to be of her mother Parvatabai. She has stated that articles 39 and 40 are the articles, which were in daily use of her mother. She stated that for the last 2/3 years, she is not visiting her mother's house. 2 months prior to the incident, she visited her mother's house to see her ailing father. She admitted that there were no special identification marks in the necklace and there are red coloured beads in the necklace and dorlas were very old fashioned. 15. She stated that for the last 2/3 years, she is not visiting her mother's house. 2 months prior to the incident, she visited her mother's house to see her ailing father. She admitted that there were no special identification marks in the necklace and there are red coloured beads in the necklace and dorlas were very old fashioned. 15. P.W. 18 Mahadeo Ooiphode husband of deceased Parvatabai has stated that a day prior to the incident, he went to Sailani. He sold one iron box, one iron both and one wodden box to Balkrishna for Rs. 250/-. After his return, police called him for identification of the articles. Before going to Sailani, he sold one field and a plot for Rs. 1,25,000/ - sale-deed of which was registered at Akot. He identified household articles and iron boxes, Art. 39 golden beads mala, Art. 40 golden tops, Art. 41 Octogonal gold beads to be belonging to his wife.-He stated that Rs. 25.000/- was received by him as ear nest money. He admitted that he was ailing from T.B. and that he had constructed the house at Paratwada. He his stated that he went to Sailani for demanding money from his son to construct the house and the money was not kept in the house at Asegao. He stated that his neighbour Narayan used to pick up quarrels with him and used to abuse him. Narayan gave poison to administer the same to him and his wife. He stated that money was not kept in the house at Asegao. He stated that his wife used to keep ornaments in the iron box. 16. P.W. 19 Geetabai Rathod, another daughter of Parvatabai was shown ornaments of her mother and she identified Articles 39, 40 and 41 ornaments and art 28 iron box. She admitted that on 9-3-1995, when her statement was recorded by the police, there was no mention of ornaments and other articles. P.W. 20 Amol Vinchurkar goldsmith has stated that one month prior to the visit of police. Rameshand Ananda came to him. They ,brought golden beads and Dorle and he weighed and purchased the same for Rs. 1,050/-. On 4-4-1995, police seized from him 32 octagonal golden beads one dorle, two designed golden beads and one piece of gold weighing 950 Ml. Under Panchanama Seizure Memo, Exh. 72. He weighed golden tops brought by the police and issued certificate Exh. They ,brought golden beads and Dorle and he weighed and purchased the same for Rs. 1,050/-. On 4-4-1995, police seized from him 32 octagonal golden beads one dorle, two designed golden beads and one piece of gold weighing 950 Ml. Under Panchanama Seizure Memo, Exh. 72. He weighed golden tops brought by the police and issued certificate Exh. 73. Art. 41 Golden beads (32) Art. 42 Golden piece are the articles seized by the police from him. He further stated that before purchasing the articles he made enquiries about receipts but they said that they had no receipt. After purchase, dorle and two golden beads were melted by him in the form of golden piece. 17. P.W. 21 Ramesh Gawande has stated that Ananda came to him and said that his wife is sick and, therefore, he wanted to sell golden ornaments. He requested him to take him to some goldsmith of his acquaintance. P.W. 22 Gaukarna Thorat stated that accused Bharatis son of her sister and that Bharat did not come to him. She was cross-examined by the prosecution when she denied the entire statement of portion marked 'A'. P.W. 23 Anandrao Thorat has also not supported the prosecution. He denied his statement portion marked 'A'. P.W. 24 Janabai Ingle mother of Gaukarana P.W. 22 and grand-mother of accused Bharat is also cross-examined by the prosecution, when she denied that on 5-4-1995 police seized golden mala from her under the seizure panchnama Exh. 20. 18. P.W. 25 Laxman Mirge, P.S.I. has carried out the initial investigation. On the basis of report lodged by P.W. 1 Ramesh, he registered offence under Crime No. 43/95. He stated that thereafter he proceeded to Asegao and prepared inquest panchnama Exhs. 22 and 24 and also recorded spot panchanama Exh. 27. On 28.3 1995 one inland letter was seized from police patil Gajanan under seizure memo. Exh. 33. On 8-3-1995 investigation was handed over to S.D.P.O. Chavan. 19. P.W. 26 Namdeo Chavan, the then S.D.P.O. took over investigation from P.I. Mirge on 8-3-1995. He recorded statements of witnesses. He arrested both the accused. On 2-4-1995, accused Bharat gave memorandum that he will produce iron boxes. Accordingly memorandum panchanama was recorded in presence of panchas. Accused Bharat led police party and panchas to the field and iron boxes were seized as per seizure panchanama Exh. 54. He recorded statements of witnesses. He arrested both the accused. On 2-4-1995, accused Bharat gave memorandum that he will produce iron boxes. Accordingly memorandum panchanama was recorded in presence of panchas. Accused Bharat led police party and panchas to the field and iron boxes were seized as per seizure panchanama Exh. 54. He further stated that on 4-4-1995 accused was taken to Wadner Gangai and enquiries were made with the witnesses. Then on the same day accused was taken to Amravati and golden ornaments were seized from Winchurkar goldsmith under seizure panchnama Exh. 72. Two golden tops were seized from maternal aunt of accused Bharat under seizure panchanama Exh. 19. On 5-4-1995 one mala of golden beads was seized from Janabai under seizure parlchanama Exh. 20. He has further stated that identification parade of seized articles was arranged by calling the witnesses, Mahadeo and Manohar identified the articles. Statements of some witnesses were recorded. On 16-5-1995 history sheet of the accused was collected from the police station. On 2-7-1995, he handed over investigation to P.I. Mirge, who after completion of investigation filed charge-sheet. In cross-examination, he admitted that initially offence under section 302 I.P.C. was registered and subsequently offence under section 392 I.P.C. was added. He has stated that Ramesh was arrested in this case and his P.C.R. was obtained. He further stated that the complainant P.W. 1 told that nothing was stolen from the house. He further stated that he did not recollect whether dog had shown the house of the complainant and, therefore, he was arrested. He also admitted that no documentary evidence is produced to show that in which post office inland letter was dropped and from whom inland letter was received by the complainant. He categorically admitted that before the arrest of accused, Mahadeo and his daughters have not stated anything about the theft and iron boxes, ornaments and the documents and the house of Parvatabai. Mahadeo also did not state anything about the theft in his statement recorded on 25-3-1995. He denied that memorandum Exh. 53 is falsely recorded and nothing was recovered at the instance of accused Bharat. He has stated that he has not recorded statement of Dadarao at the time of recovery panchanama. He stated that he has not collected any evidence about purchase of ornaments by Parvatabai. 20. The defence of the accused is of total denial and false implication. 21. 53 is falsely recorded and nothing was recovered at the instance of accused Bharat. He has stated that he has not recorded statement of Dadarao at the time of recovery panchanama. He stated that he has not collected any evidence about purchase of ornaments by Parvatabai. 20. The defence of the accused is of total denial and false implication. 21. The learned trial Judge has believed the evidence of P.W. 7 Shrikrishna Panch on the point of discovery of two iron boxes; also on the point of recovery of stolen articles, golden chain from P.W. 24 Janabai grand - mother of accused and evidence of P.W. 20 Amol Winchurkar - goldsmith for the recovery of Octagonal golden beads at the instance of accused and identification of other articles be longing to Parvatabai by her husband Mahadeo and two daughters P.W. 17 Ramabai and P.W. 19 Geetabai. The learned trial Judge has held, that Parvatabai and Suryabhan died homicidal death and from the evidence of recovery of stolen articles, a presumption is drawn and the learned trial Judge recorded a finding of conviction against accused Bharat and on the same evidence acquitted another accused Laxman. 22. The learned counsel for the appellant-accused challenges the conviction on the contentions that the conviction is not at all sustainable. The judgment of the learned trial Court is grossly erroneous. The prosecution has not proved homicidal deaths of Parvatabai and Suryabhan and has not established its case. Moreover, adverse inference can be drawn against the prosecution for non-examination of material witnesses. The learned counsel has submitted that memprandum Exh. 53 is drawn after a short-while, when accused were brought and arrested at the police station at 12.45 or 12.50 p. m. The panchas were not independent. Recording of memorandum Exh. 53 creates doubt about its credibility. 23. On the other hand learned 'A' penal counsel appearing for State has submitted that the prosecution has proved its case beyond reasonable doubt. The evidence of recovery at the instance of Bharat of the stolen ornaments and articles is reliable and the fact of recovery is proved from the examination of various prosecution witnesses and. therefore. presumption in the absence of any explanation from the accused. which is drawn by the learned trial Judge is sustainable. The evidence of recovery at the instance of Bharat of the stolen ornaments and articles is reliable and the fact of recovery is proved from the examination of various prosecution witnesses and. therefore. presumption in the absence of any explanation from the accused. which is drawn by the learned trial Judge is sustainable. According to him, conviction under section 302 I.P.C. is maintainable and he left the question of awarding the sentence to the discretion of this Court. According to the learned counsel for the appellant-accused in the facts and circumstances this case does not fall in the category of rarest of rare. He further submitted that the accused deserves to be acquitted. 24. On the point of homicidal deaths of Parvatabai and Suryabhan, prosecution has adduced evidence of Dr. Sunita Japsare, who has performed post-mortem examination over the dead bodies of Parvatabai and Suryabhan. It is pertinent to note that on the dead body of Parvatabai, an abrasion was present on the right wrist anteriorly size 1/2" x 1/2" and contusion on nose was present. In coloumn 13 of post-mortem report, it is mentioned that her longue was inside the mouth and no oozing from mouth or nostril was seen. Similarly, in case of Suryabhan his tongue was also inside the mouth and there was no oozing from mouth or nostrill. In Exh. 22 - Inquest Panchnama over the dead-body of Suryabhan, there is a mention of one stain of blood on his shirt and on the nose, there are three redish injuries close to one another; the top of nose was appearing redish and blackish. In Exh. 24 - Inquest Panchnama over the dead body of Parvatabai it is mentioned that blood was seen oozing from both the ears and small injury was seen on the bone of nose, which was blackish and redish. The tongue was turned inward inside the jaws. Two small injuries on right thumb and on index finger, Blood stains on quilt were noticed. From the perusal of Spot Panchanama Exh. 27. it is found that five dark red coloured stains of blood on the mattress below the head of deceased Parvatabai and also on the quilt were seen. Her bangles were also found broken. 25. Two small injuries on right thumb and on index finger, Blood stains on quilt were noticed. From the perusal of Spot Panchanama Exh. 27. it is found that five dark red coloured stains of blood on the mattress below the head of deceased Parvatabai and also on the quilt were seen. Her bangles were also found broken. 25. From this evidence of spot panchnama Inquest Panchnama and medical evidence of P.W. 5 it is established beyond doubt that the mouth and nose of both the deceased had been pressed and they were not allowed to breath natural air. The very fact that the tongues of both deceased were inside the mouth is indicative of the fact that their mouths and noses were pressed and air circulation was blocked. Thus there is no substance in the contention of the learned counsel for the appellant that Parvatabai and Suryabhan did not die homicidal deaths. The prosecution has clearly established that both died homicidal deaths. 26. The next and most important question in this case is about the authorship of the crime. The basis for involving the accused-appellant in this crime is Exh. 15, an inland letter. From the time of incident, till 27-3-1995, there was no clue with the police regarding the involvement of any of the accused. P.W. 1 Ramesh has stated that he received this letter from the post office Asegao on 27-3-1995. The letter is written in vernacular marathi. There is no signature of the scribe or writer of the letter. The letter is annoymous. The contents of the letter are in the nature of disclosure regarding the prosecution allegations against the accused. This letter is not proved on record. The prosecution has not examined any witness to show as to who has written this letter. Similarly, no witness is examined to show in whose presence this letter was written. The Postal Stamp from where it is posted is not clear but after minute observation, it appears that it might have been posted at Akot post office. The mere fact that P.W. 1 Ramesh alongwith P.W. 4 Gajanan police patil had gone to police station, Akot and Ramesh produced this letter before the police seize Exh. 15 does not prove the contents of the letter. Therefore, letter Exh. 15 is inadmissible in evidence. The mere fact that P.W. 1 Ramesh alongwith P.W. 4 Gajanan police patil had gone to police station, Akot and Ramesh produced this letter before the police seize Exh. 15 does not prove the contents of the letter. Therefore, letter Exh. 15 is inadmissible in evidence. Though the learned trial Judge has marked this letter and exhibited it on record as it is inadmissible in evidence, its contents could not have taken into account. 27. It is in the prosecution evidence that P.W. 1 was arrested in this crime. From the record, it is seen that P.W. 1 was arrested on 10-4-1995 and his police custody remand was taken for two days and he was released on bail on 26-4-1995. He was subsequently discharged by the Judicial Magistrate or137-1995 under section 169 Cr.P.C. The learned 'A' Panel Advocate has stated before us that there was no material against accused P.W. 1 Ramesh and therefore, he was discharged by the learned Magistrate. We have perused the application under section 169 Cr.P.C. filed by P.I. Mirge before Judicial Magistrate First Class. It is clearly stated therein that there is no evidence of whatsoever nature. Neither there is any circumstance against accused Ramesh and therefore, prayer for his discharge. The learned Magistrate passed order on the application, which is to this effect: "Read report of P.I. Akot. It is submitted that there is no evidence against accused Ramesh. Report accepted. Accused Ramesh is discharged." Sd/ 3-7-1995 It is pertinent to note that on the very day i.e. on 3-7-1995, P.I. Mirge has submitted the charge sheet against accused Bharat and Laxman in the Court of the same Judicial Magistrate. From the order of the Magistrate, it is not disclosed whether he has perused the case diary regarding his satisfaction. Even there is no mention in the application that the case diary was submitted by the Police before Magistrate for perusal. It was the bounden duty of the Magistrate to ask for the case diary from the Police Inspector Mirge but he has not done so. He simply believed the application of Police Inspector. As the accused was arrested in this crime for offence punishable under sections 302, 392 and 120-B of Indian Penal Code, after about one month from the commission of offence, it was highly desirable for the Magistrate to peruse all the papers of investigation and case diary. He simply believed the application of Police Inspector. As the accused was arrested in this crime for offence punishable under sections 302, 392 and 120-B of Indian Penal Code, after about one month from the commission of offence, it was highly desirable for the Magistrate to peruse all the papers of investigation and case diary. His order even does not disclose that he has perused all the papers and chargesheet also and for the reasons best known to him, P. I. Mirge did not care to file necessary papers alongwith the application. Moreover, the learned Magistrate without insisting for production of such papers, passed discharge order mechanically. As this case is not properly conducted by the prosecution, the prosecution story is not unfolded from the evidence of prosecution witnesses and though P.W. 1 was given suggestion by the defence, still prosecution did hot care to examine the material witnesses, particularly Anita Dongre, who used to attend deceased Parvatabai in her house daily and who was knowing day to day affairs of the house of deceased Parvatabai and deceased Mahadeo and who could have given relevant important information in this case is neither examined or cited as prosecution witnesses by the prosecution. The investigation in this case is not fair from the very beginning, though a superior officer like S.D.P.O. had taken over the investigation from P.I. Mirge on the very day of the incident. It was expected of S.D.P.O. that he should have made impartial, fair and objective investigation in the matter. In the above circumstances, the charge of suppression of material facts and important evidence levelled by the defence is accepted. We may note here that because of faulty and defective investigation, we were required to take the assistance of the case diary. 28. The contention of learned 'A' Penal Counsel for State is that evidence of mere recovery of golden ornaments at the instance of accused Bharat and identification of these ornaments and clothes of Parvatabai by prosecution witnesses is sufficient for conviction for the offence under section 392 and 302 I.P.C. relying on reported decision in Mohanlal v. Ajit Singh1, deserves no consideration on merits for following reasons: (i) Both the accused Bharat and Laxman were taken in custody at 12.50 p.m. on 2-4-1995 on the basis of Inland Letter Exh. 15 by S.D.P.O., Chauhan. Immediately thereafter two panchas are called. 15 by S.D.P.O., Chauhan. Immediately thereafter two panchas are called. They are P.W. 6 and P.W. 7, who are having their Hair Cutting Saloon and Tea Stall respectively in front of Police Station. One is admittedly a regular panch of police and another also a willing panch. Memorandum Exh. 53 is recorded. Interrogation to accused Bharat is in the presence of another accused Laxman. The admissible portion in Exh. 53 is to the effect "We have buried the said two boxes in a ploughed field of Shivarkar, situated near Chausai Nallah within the boundary limits of Wadner Gangai. You come with me. I will take out and produce the, said boxes". (ii) P.W. 6 has not deposed about the interrogation by police to accused Bharat as revealed in Exh. 53, though he admits in clear cut terms that nothing took place before him in the police station, though he admits memo of panchnama, P.W. 6 is not cross-examined. His evidence, therefore, remains intact in this regard. When there is doubt shown from the evidence of P.W. 6, who is not cross-examined by the prosecution, we do not place reliance on the memorandum Exh. 53. Moreover, it is in the evidence of these witnesses that both accused had removed earth and taken out the boxes. (iii) That one corner of the tin box was visible, the learned 'A' Panel counsel has submitted that only a small portion of the corner had come above the earth but it would be visible from a long distance. But the fact remains that one corner of tin box was visible on the spot. (iv) It is not understandable why any culprit would by try or conceal tin boxes containing only clothes. Nothing valuable was kept ill the boxes. Why a culprit will create incriminatory evidence against him? (v) The recovery of articles from the house of Janabai, grandmother of the accused, as deposed by Panch witnesses, police and P.W. 20 Amol Vinchurkar at the instance of accused Bharat is not trustworthy. P.W. 23 Anandrao Throats and P. W. 24 Janabai are close relatives of accused. The price of 32 Octagonal golden beads as recovered from Anandrao Throats is Rs. 1050/-. P.W. 23 Anandrao Throats and P. W. 24 Janabai are close relatives of accused. The price of 32 Octagonal golden beads as recovered from Anandrao Throats is Rs. 1050/-. Though these articles are identified by the daughters P.W. 17 and P.W. 19 of Parvatabai and P.W. 18 husband of Parvatabai to be that of Parvatabai but this fact cannot be accepted as there is no real identification of these articles. Before the Police there was no identification parade held during investigation. Statements of these witnesses before the Court that they identified these articles to be belonging to deceased Parvatabai cannot be said to be reliable because such type of ornaments are in common use and are readily available in the market. Even the testimony of Mahadeo in this respect that these ornaments belonged to his wife Parvatabai is also not reliable. It is not shown as to why the accused could not have ornaments of this type of his own. Though Janabai P.W. 24 in her evidence denies the seizure of golden necklace from her, necklace was recovered from her. But the facts again remain as to why Janabai cannot have necklace of the type seized from her. Except the evidence of this recovery regarding golden ornaments and tin boxes there is no other evidence regarding the complicity of the accused. There is no other circumstantial, evidence also about their presence, previous conduct and. therefore, the above cited ruling relied upon by the learned 'A' Panel counsel is not applicable in this case. 29. It will be highly risky to record a finding of conviction on such weak type of evidence and that too in such type of case, where one accused Laxman is acquitted by the trial Court on the very evidence and another principal accused, who was alleged to be the chief conspirator is discharged by the Judicial Magistrate under section 169 Cr. P.C. Leave aside the question of this case falling in the category of rarest of the rare the prosecution in this case admittedly failed to establish its case. The conviction recorded by the Trial Judge has, therefore, to be quashed and set aside. 30. In the result. Criminal Confirmation Case No. 3/1996 is not accepted. Criminal Appeal No. 320 of 1996 is allowed. The conviction and sentence recorded by the learned trial Judge is quashed and set aside. The conviction recorded by the Trial Judge has, therefore, to be quashed and set aside. 30. In the result. Criminal Confirmation Case No. 3/1996 is not accepted. Criminal Appeal No. 320 of 1996 is allowed. The conviction and sentence recorded by the learned trial Judge is quashed and set aside. The accused appellant be set at liberty forthwith, if not required in any other case. (PER Kulkarni, J.) 31. While recording my agreement with respect to the conclusions to which we have arrived, it must be observed that from the medical evidence of PW 5 Dr. Japsare and from the evidence regarding the spot panchanama and the condition of the two dead bodies, we found no hesitation in endorsing the finding recorded by the learned trial Judge that the two mysterious deaths of the two deceased in this case were 'homicidal' in nature. Some human agency surely seems to have played a role in killing the two deceased during the night when they were asleep at the respective places like Chhapri and the room. We also agree with the opinion expressed by the medical witness that such deaths in the midst of the accompanying circumstances can occur if a pillow or a quilt which is a soft material is pressed against the nose and mouth of a sleeping person. The entire investigation of this crime did not satisfactorily unfold during the trial mystery behind Exh. 15th the anonymous and unproved Inland letter, with a view to reducing the mystery in which intrinsically and extrinsically the same was shrouded or to seek proper direction in endeavoring to read some truth hidden behind it. The mystery remained to be a mystery throughout, in spite of the trial of the crime. 32. Non-examination of witness like Anita Dongre and the correct manner in which she was not even shown to be a witness for the prosecution seemed to us to clearly shake the so called genesis or the thrust of the prosecution case for the simple reason that Anita seemed to regularly visit the house of the incident in question. A reasonable doubt arises due to a situation suggestive of Anita having some probative capacity, because of she expressing herself after the incident that the responsibility for the incident was on PW 1 Ramesh the very son of deceased Suryaban. A reasonable doubt arises due to a situation suggestive of Anita having some probative capacity, because of she expressing herself after the incident that the responsibility for the incident was on PW 1 Ramesh the very son of deceased Suryaban. Such possibility of she possessing some probative capacity to throw light on the incident in question reduces required degree of fairness expected of a prosecution in a serious crime like the double murder involved in this case. This omission added to the complexity of the situation rather than solving the same. It is also not clear if death of Suryabhan was a mistaken death, mistaking him for Mahadeo the husband of the deceased Parvatibai. Similarly seizure of ornaments of very common use attempted to be identified by rather less eligible witnesses to be the ornaments of deceased Parvatibai at its best might furnish so weak a circumstance that it could not have derived the probative strength required by such circumstance to form a basis for a judicial finding. We felt rather perturbed in recording our uneasiness when we noticed that the investigating agency should have made a choice of persons like petty hotel-keeper or the proprietor of a Hair Cutting Saloon situated just infront of the Police Chowky to act as panchas in such a case. A strong possibility of they turning out to be the stock witnesses of police and omission to make a choice for persons of superior and positive independence, seemed to us, to be a very strange circumstance while appreciating the evidence. Evidence regarding discovery of two tin trunks, alleged to be the stolen properties and the promptness with which after the arrest of the present accused and his so called associate, already acquitted by the trial Court, seems to us in the final analysis that the said circumstance could not be considered worthy of adequate strength even while viewing the same in the chain of other circumstances. Similarly registration of crime under Section 392 I.P.C. belatedly after the registration of the main crime under Section 302 I.P.C. not with natural boldness at the very first blush added to the same complexity rather than furnishing a very natural obvious and uneatable solution in forming a circumstance of its due worth. Similarly registration of crime under Section 392 I.P.C. belatedly after the registration of the main crime under Section 302 I.P.C. not with natural boldness at the very first blush added to the same complexity rather than furnishing a very natural obvious and uneatable solution in forming a circumstance of its due worth. The discovery under Section 27 of the Evidence Act with respect to the tin trunks to which reference is made in this judgment is further be settled by the promptness with which memorandum statement under Section 27 of the Evidence Act came to be recorded after the arrest of the accused the place in the field in relation to which discovery panchanama was made, together with its surrounding having lesser degree to conceal the property as it was an open field ripe for undertaking agricultural operations, the nature of property actually discovered propriety for such property being required to be really concealed, visibility of the corner of one of the tin trunks which could be observed by a stander by any possibility of anyone visiting that place for, cultivation any time raising some questions regarding true propriety in relation to such discovery apart from the fact whether the panch witnesses could be said to be truly dependable. It would not be necessary to undertake any deeper scrutiny of the evidence of the panchas to further focus the attention of the differences between the versions of the two panchas pointed out to contend that the whole process was done in a formal manner. Suchlike it to say that the circumstances made available pursuant to the discovery under Section 27 of the Evidence Act cannot furnish circumstances and inferences strong enough to constitute a link in the chain of circumstantial evidence. Along with these circumstances to which detailed references have been made in the judgment recorded above, also stand as stark fact that co-accused Laxman on the strength of the very prosecution evidence has been already acquitted by the trial Court. 33. We, therefore, unanimously concluded that it would be highly unsafe in serious crimes involving double murder to base our conclusions against the accused on such kind of evidence to hold him guilty for the said offence or then to make him liable for severe punishment. 33. We, therefore, unanimously concluded that it would be highly unsafe in serious crimes involving double murder to base our conclusions against the accused on such kind of evidence to hold him guilty for the said offence or then to make him liable for severe punishment. This is a case where there is no direct evidence but only circumstantial one and the main circumstances which have been referred now are not only not strong but adequately weak enough to cumulatively furnish any inference of guilt with a capacity to rule out hypothesis in favour of noninvolvement of innocence of the appellant. 34. The reference, therefore, cannot be accepted. Instead, the appeal of the accused against his conviction for the offence punishable under Section 302 I.P.C. awarding him a death penalty will have to be wholly set aside and instead we found it necessary to order that he shall stand acquitted of the said offence and shall be set at liberty. Appeal allowed. 1. A.I.R. 1978 S.C. 1183.