JUDGMENT - SAHAI VISHNU, J.:---Through this appeal, the appellant has challenged the judgment and order dated 31-7-1993 passed by the Additional Sessions Judge, Pune, in Sessions Case No. 283 of 1992, convicting and sentencing him in the manner stated hereinafter: (i) Under section 302, Indian Penal Code to suffer imprisonment for life and to pay a fine of Rs. 1000/- in default to suffer R.I. for two months; and (ii) Under section 201, Indian Penal Code to suffer R.I. for 3 years and to pay a fine of Rs. 1000/- in default to suffer R.I. for one month. The substantive sentences of the appellant were ordered to run concurrently. 2. In short, the prosecution case runs as under:- The deceased Laxmibai was the wife of the appellant. Since two to three months prior to the incident, quarrels used to take place between the appellant and the deceased. On 29-10-1991, at about 12 noon, the appellant and Laxmibai visited the market at village Velhe. Dasrath Khomane P.W. 3 and Ramdas Khomane P.W. 4 the brother and cousin brother of the appellant respectively saw them going. But the appellant alone returned from the market. Dasrath Khomane P.W. 3 and Sopan (died prior to the recording of evidence) both real brothers of the appellant, enquired from him about the whereabouts of Laxmibai. The appellant told them that she was at Saldara but, they should not go there. Naturally, they became suspicious; went to Saldara; and found there, Laxmibai's dead body in a naked condition. 3. The F.I.R. of the incident was lodged by Sopan on 31-10-1991 at Police Station Jejuri. On its basis, P.S.I. Yashwant Ombase P.W. 6 registered C. R. No. 85 of 1991 under sections 302 and 201, Indian Penal Code. 4. The investigation was conducted in the usual manner by P.S.I. Yashwant Ombase P.W. 6. He prepared the panchanama of the scene of the offence; recorded the statements of witnesses; and on 6-11-1991, was handed over the custody of the appellant by the Khandala Police. On 10-11-1991, during the course of interrogation, the appellant stated that he could produce the sari with which he had murdered the deceased. The said information was recorded under a panchanama Exhibit 15. Same day, the appellant led P.S.I. Ombase, two public panchas, out of whom, Digambar Natu has been examined as P.W. 2 on a jeep towards Harni. On 10-11-1991, during the course of interrogation, the appellant stated that he could produce the sari with which he had murdered the deceased. The said information was recorded under a panchanama Exhibit 15. Same day, the appellant led P.S.I. Ombase, two public panchas, out of whom, Digambar Natu has been examined as P.W. 2 on a jeep towards Harni. At a distance of about 5 to 6 kms. from village Velha, the appellant asked that the jeep be stopped. Consequently, it was stopped. Thereafter, the appellant from a place known as Saldara, took out a sari which was beneath a stone. The said recovery was made under a panchanama. On 11-11-1991, the sari, blood-stained earth etc. were sent to the Chemical Analyst. After completing the investigation, on 24-12-1991, P.S.I. Ombase submitted the charge sheet against the appellant. 5. Going backwards, the autopsy on the corpse of the deceased Laxmibai was conducted on 31-10-1991 by Dr. Shashikant Mane P.W. 1 who found on it, three contusions, and two abrasions. One of the contusions was situated on the neck. On internal examination Dr. Mane found fracture of thyroid cartilage. In his opinion, the deceased died on account of asphyxia due to strangulation. 6. The case was committed to the Court of Sessions in the usual manner where the appellant was charged for offences punishable under sections 302 and 201, Indian Penal Code. He pleaded not guilty to the charges and claimed to be tried. His defence was that of denial. During trial, in all the prosecution examined 6 witnesses. We may straight way mention that there is no eye-witness of the incident and the case rests on circumstantial evidence. The learned trial Judge relied upon the circumstantial evidence adduced by the prosecution before him and convicted and sentenced the appellant in the manner stated above. Hence, this appeal. 7. We have heard learned Counsel for the parties and perused the entire material on record. In our view, this appeal deserves to be partly allowed. We feel that the learned trial Judge erred in convicting the appellant for the offence under section 201, Indian Penal Code. 8. As mentioned above, the case rests on circumstantial evidence. Hence, this appeal. 7. We have heard learned Counsel for the parties and perused the entire material on record. In our view, this appeal deserves to be partly allowed. We feel that the learned trial Judge erred in convicting the appellant for the offence under section 201, Indian Penal Code. 8. As mentioned above, the case rests on circumstantial evidence. We are alive to the fact that circumstantial evidence can only be made a basis for convicting an accused if : (a) the circumstances are firmly established against him; (b) they firmly lead to the inference of his guilt; (c) they are wholly incompatible with the inference of his innocence and; (d) they are incapable of being explained on any other reasonable hypothesis excepting that of his guilt. A perusal of the impugned judgment shows that the learned trial Judge has relied upon the following circumstances for recording the conviction of the appellant: (i) motive; (ii) last seen; (iii) suspicious conduct of the appellant; and (iv) recovery of a sari, having pieces of mud, on the pointing out of the appellant. We make no bones in observing that circumstance (a) does not inspire any confidence. Two witnesses namely Dasrath Khomane P.W. 3 and Ramdas Khomane P.W. 4, brother and cousin brother of the deceased respectively were examined to prove it. Although, in their examination-in-chief, both stated that about two months prior to the incident, there were quarrels between the appellant and the deceased but, in their cross-examination, they admitted that no quarrel had taken place in their presence. In such a situation, their evidence with respect to quarrels is hear-say. But, in our view, even if circumstance (a) is eliminated, circumstances (b), (c) and (d), which have been firmly established, irresistibly lead to the inference that the appellant committed the murder of the deceased. 9. To establish circumstances (b) and (c) namely 'last seen' and 'suspicious conduct of the appellant', the prosecution adduced the evidence of Dashrath Khomane P.W. 3 and Ramdas Khomane P.W. 4. 9. To establish circumstances (b) and (c) namely 'last seen' and 'suspicious conduct of the appellant', the prosecution adduced the evidence of Dashrath Khomane P.W. 3 and Ramdas Khomane P.W. 4. They stated that on 29-10-1991 at about 12 noon, the deceased Laxmibai had gone with the appellant to the Velha Market and when the appellant returned alone from the said market, they and Sopan, the real brother of the appellant asked him about her whereabouts on which, the appellant first gave evasive answers and then told them that she was at Saldara and asked them not to go there. On that, their suspicious were aroused. They went there and found the naked corpse of Laxmibai. As mentioned earlier, Sopan died prior to the recording of evidence in the trial Court. Consequently, the said circumstances were proved during trial through the evidence of Dashrath Khomane P.W. 3 and Ramdas Khomane P.W. 4. We have gone through their statements and find that they inspire confidence. Although, they were cross-examined but, nothing could be elicited therefrom which would demolish their evidence in respect of the aforesaid circumstances. It should be borne in mind that being close relations of the appellant, they would not have falsely deposed against him. In our view, the prosecution has established circumstances (b) and (c). 10. We now come to the last circumstances namely recovery of sari having pieces of mud with which the appellant (according to the prosecution) is said to have murdered the deceased, on the pointing out of the appellant on 10-11-1991. To prove the circumstance, we have the evidence of P.S.I. Yashwant Ombase P.W. 6 and the public panch Digambar Natu P.W. 2. Their evidence shows that on 10-11-1991, the appellant admitted that he could have the sari recovered. Consequently, on a jeep, they along with the appellant proceeded. When they had reached a distance of 5 to 6 kms. from Velha, the appellant asked that the jeep be stopped. Thereafter, on foot he proceeded and reached a place known as Saldara from where beneath a stone, he took out a sari having mud on it. The information that the appellant could have the sari recovered and the factum of recovery of sari is recorded under two separate panchanamas. We have gone through the evidence of P.S.I. Ombase and the public panch Digambar Natu and we find the same to be reliable. The information that the appellant could have the sari recovered and the factum of recovery of sari is recorded under two separate panchanamas. We have gone through the evidence of P.S.I. Ombase and the public panch Digambar Natu and we find the same to be reliable. Although, they were subjected to cross-examination but, nothing could be extracted therefrom which could discredit their evidence in any manner. It is significant to point out that the said sari and pieces of earth from the place where the corpse of the deceased was recovered were sent to the Chemical Analyst for examination of physicao-chemical characteristics and chemical composition. The report of the Chemical Analyst shows that the earth found on the sari was the same which was recovered from the place where the dead body was found. It is pertinent to point out that on the sari and bloodstained earth, the Chemical Analyst found human blood. It is pertinent to point out that Dr. Shashikant Mane P.W. 1 the Autopsy Surgeon categorically stated that strangulation of the deceased was possible by a sari. We have no reason to doubt his opinion. In our view it appears that the appellant, used this sari for strangulating the deceased. For the said reasons, this circumstance is also established. 11. We may also make a passing reference to the fact that after the incident, the appellant made himself scarce and as is evident from the evidence of P.S.I. Ombase could only be arrested on 5-11-1991. In the background of the aforesaid facts, this conduct of his is an additional circumstance which shows that he committed the murder of the deceased. 12. In our view, circumstances (b), (c) and (d) coupled with the appellant making himself scarce for five days have not only been firmly established but, they irresistibly lead to the inference that the appellant murdered the deceased. But, in our view, prosecution has not been able to adduce any evidence that the appellant tried to cause the disappearance of the evidence of the murder of the deceased. Hence, he has to be acquitted for the offence under section 201, Indian Penal Code. 13. In the result, this appeal is partly allowed. But, in our view, prosecution has not been able to adduce any evidence that the appellant tried to cause the disappearance of the evidence of the murder of the deceased. Hence, he has to be acquitted for the offence under section 201, Indian Penal Code. 13. In the result, this appeal is partly allowed. Although, we maintain the conviction and sentence of the appellant for the offence under section 302, Indian Penal Code but we set aside the same, for that under section 201, Indian Penal Code and acquit him on that count. In case he has paid the fine, thereunder, it shall stand refunded to him. The appellant is in jail, and shall remain there till he serves out his sentence for the offence under section 302, Indian Penal Code. Appeal partly allowed. -----