JUDGMENT - T.K. CHANDRASHEKHARA DAS, J.:---By the judgment dated 25th September, 1995 passed by the Additional Sessions Judge, Pune in Sessions Case No. 95 of 1995, the appellant Bajirao Bhimji Daphal and another accused Tukaram Shripati Daphal were tried for the offence under section 302 read with section 34, Indian Penal Code. Both the appellant and the other accused were convicted and sentenced under section 302 read with 34 of Indian Penal Code and sentenced to suffer R.I. for life and to pay fine of Rs. 300/- each and in default R.I. for two months. The accused No. 1 is alone before us challenging the said judgment in this appeal. Therefore, we are not considering the conviction of the second accused Tukaram Shripati Dafal in this appeal. 2. The prosecution case in short is that Kaluram Tambe and Shashikala Tambe were staying in a farm house at village Hivare with their children. Shashikala's parents stay at Dhamari, Taluka Shirur. Kaluram's mother and other family members stay at Hivare but in the village Gaothan. On 6-11-1994, Shashikala came alone to the house of her parents. Her mother Babubai made enquiries with her about her children, whereupon she told her mother that she had a quarrel with her husband Kaluram. On further inquiry Shashikala told that Kaluram was suspecting her character for her relations with one Bajirao Daphal i.e. appellant, who according to Shashikala, had illicit relations with her and wanted Shashikala to succumb to his wishes. Her parents then send a person to fetch children of Shashikala. Shashikala stayed with her parents for about two days and left for her matrimonial house. One Indubai, i.e. mother in law of Shashikala was working in the field when Shashikala arrived in the farm house. Shashikala's husband Kaluram was grazing bullocks near the brooklet. After Shashikala came into the house, Kalurarm also returned to the house and there was a quarrel between both of them. Out of curiosity, Indubai and her daughter Mandubai entered the house of Kaluram and asked Shashikala why there was a quarrel. Shashikala did not answer. However, Kaluram told them that Shashikala was not behaving properly and had illicit relations with Bajirao i.e. appellant. Indubai and Mandubai tried to pacify them. Shashikala then requested Indubai to send a tiffin for them to the farm, as according to her, she was in her menses. Shashikala did not answer. However, Kaluram told them that Shashikala was not behaving properly and had illicit relations with Bajirao i.e. appellant. Indubai and Mandubai tried to pacify them. Shashikala then requested Indubai to send a tiffin for them to the farm, as according to her, she was in her menses. Indubai and Mandubai then went home, prepared food and brought a tiffin for Shashikala and Kaluram. While Indubai was bringing the tiffin, she saw accused No. 2 Tukaram standing near the brooklet. When she went to the house of Kaluram, she found that Kaluram was not in the house and she saw appellant Bajirao coming out of the house. Indubai then made inquiries with Shashikala about the presence of appellant Bajirao but she did not reply. She gave the tiffin to Shashikala and returned. Next day morning, she went to the fields and found a sheep belonging to Kaluram wandering around the house. The house was latched from outside. She thought that Kaluram and Shashikala must have gone somewhere and would return within short time. She therefore lethered the sheep. She wanted to have water and, therefore, thought it fit to open the door and take some water from the house of Kaluram. She, therefore, unlatched the door and was wonder struck to find that the bodies of Kaluram and Shashikala mere lying in pool of blood. She then shouted and fell down. Her nephew came and helped her to go to the village People then gathered and a message was sent to the parents of Shashikala. Shashikala's parents arrived after receipt of the message and they were in grief to know about the murder of their daughter and son-in-law. By that time, police arrived. Accordingly offence was registered under Crime No. 85 of 1994 and investigation started. 3. P.W. 9 Shri Mohite Investigating Officer visited the scene of offence on 9-11-1990 at about 4.00 p.m. Inquest panchanama was made. He had made arrangement to guard the house and to see that nobody is allowed to enter. He made inquest panchanama. He recorded statements of Indubai, Mandubai, Tanaji etc. The dead bodies were sent for post-mortem. A.S.I. Pawar produced the clothes on the person of the deceased before him where they were seized under panchanama Exh. 22. On 11th he recorded the statements of witnesses Hanumant Ranpise and others. He made inquest panchanama. He recorded statements of Indubai, Mandubai, Tanaji etc. The dead bodies were sent for post-mortem. A.S.I. Pawar produced the clothes on the person of the deceased before him where they were seized under panchanama Exh. 22. On 11th he recorded the statements of witnesses Hanumant Ranpise and others. On 12-11-1994 he arrested the suspected accused Bajirao and Tukaram at 16.00 hrs. While in custody accused Tukaram made a disclosure pursuant to which panchanama Exh. 29 was recorded. According to information given by accused Tukaram. Investigating Officer proceeded along with the panchas to village Hivare. Accused Tukaram asked them to stop the vehicle. They all went in the house. Accused produced blade (fas) from the attic of the said house. The house was of the deceased. The blade was seized and sealed under panchanama Exh. 30. Then in his evidence P.W. 9 says that the disclosure made by appellant in the presence of panchas that he will produce knife and clothes which was reduced in writing and which is at Exh. 35. Appellant Bajirao then took them to his house. He produced the clothes and the knife from between the roof (valchan). Accordingly panchanama is prepared which is at Exh. 36. On 11-12-1994 the articles were sent to C.A.M by letter. After investigation charge-sheet was laid before the concerned Magistrate who in turn committed the case of trial to the Sessions Court. Before the Sessions Court, the appellant and other accused denied the charges and claimed to be tried. After trial the appellant and other accused were convicted and awarded sentence as indicated in the opening paragraph of the judgment. 4. Several arguments both against and in support of the prosecution have been advanced by the learned Counsel for the appellant Ms. Revati Mohite Dere and Ms. Usha Kejriwal. For the disposal of the appeal, we feel it is unnecessary to go into those details. In the factual matrix, we already noticed that there is no eye-witness. The trial Court had to rely only upon the circumstantial evidence. Three circumstances have been noted by the Court below, one is motive, second is last seen theory and third is recovery of weapon on pointing out by the appellant. On a detailed evaluation of the evidence, the trial Court rejected two of the circumstances mentioned above, namely motive and last seen theory. Three circumstances have been noted by the Court below, one is motive, second is last seen theory and third is recovery of weapon on pointing out by the appellant. On a detailed evaluation of the evidence, the trial Court rejected two of the circumstances mentioned above, namely motive and last seen theory. The motive was rejected on the ground that the illicit relationship between the deceased Shashikala and the appellant has not been mentioned in the F.I.R. The last seen theory has been disbelieved by the Court below on the ground that even after the deceased being seven in the company of the appellant, the deceased was seen alive by her mother-in-law. For the above reasons, the trial Court has, according to us, rightly rejected the above two circumstances. In substance, the trial Court has solely relied upon the circumstances of the recovery of the weapon and blood stained clothes. The learned Counsel for appellant Ms. Revati Mohite Dere has pointed out a very serious and significant defect in the recovery. She submits that no authorship of hiding the weapons has been disclosed by the appellant in the disclosure panchanama. She brought to our notice that the information given by the appellant in the evidence of I.O. is proved by I.O. The appellant only stated that he will produce the knife and clothes. She submits that it implies only knowledge and not the authorisation of concealing the weapons. Therefore, no incriminating circumstances should be attributable against the appellant out of such a disclosure. 5. The learned A.P.P. Ms. Usha Kejriwal has strongly opposed this line of argument of the learned Counsel for the appellant and says that the disclosure which was made by the appellant will necessarily establish nexus of the appellant with the offence. She says that the weapons were recovered from appellant's house and the blood stained clothes recovered by him had blood stains belonging to deceased Shashikala and Kaluram which belongs to blood group “O” and “B” respectively. However, for the purpose of deciding the appeal, we need not go into that controversy of finding blood stains on the weapon and clothes. We have noticed that the disclosure statement made appellant vide panchanama Exh. 35 has been proved by P.W. 6. P.W. 6 in his evidence says that on 13-11-1994 he was called to Dharavi Police Station. However, for the purpose of deciding the appeal, we need not go into that controversy of finding blood stains on the weapon and clothes. We have noticed that the disclosure statement made appellant vide panchanama Exh. 35 has been proved by P.W. 6. P.W. 6 in his evidence says that on 13-11-1994 he was called to Dharavi Police Station. Appellant Bajirao was present in the Police Station and he made statement that he will produce knife and clothes from his house. In the cross-examination this witness stated that when he went to the Police Station, memorandum was already written. This statement of the witness P.W. 6 Machindra Rajaram Dagal destroys the only................ of the prosecution case. The disclosure panchanama accordingly was already written, and was not written in the presence of this witness. Therefore, it goes without saying that no sanctity could be attached to the disclosure panchanama in this case. If there is no proof of disclosure which was made under section 27 of the Evidence Act, the consequence is that the recovery made pursuant to such disclosure cannot be made use of establishing the guilt of the appellant. As we pointed out earlier, the only circumstance on which conviction has been founded was destroyed. On account of this basic defect in recording of the disclosure, it cannot be said that the blood stained weapons and clothes were recovered on pointing out by the appellant. In the absence of eye-witness essential circumstances normally required for upholding a conviction is completely absent in this case and the appellant is entitled to the benefit of doubt. 6. For the foregoing reasons, the appeal is allowed. The conviction and sentence passed by the Sessions Judge, Pune in Sessions Case No. 95 of 1995 vide judgment and order dated 25-9-1995, so far as it relates to the appellant is concerned, is set aside. He is in jail. He is directed to be released forthwith, unless required in any other case. Appeal allowed. -----