JUDGMENT - SAHAI VISHNU, J.:---Through this appeal, the appellant challenges the judgment and order dated 21st February, 1995, passed by the Additional Sessions Judge, Pune, in Sessions Case No. 59/94 convicting and sentencing him in the manner stated hereinafter:--- (i) Under section 302 of the Indian Penal Code to suffer imprisonment for life and to pay a fine of Rs. 100/- in default to undergo one months R.I. (ii) Under section 201 of the Indian Penal Code to suffer two years R.I. and to pay a fine of Rs. 100/- in default to undergo one months R.I.; and (iii) Under section 381 of the Indian Penal Code to suffer three years R.I. and to pay a fine of Rs. 100/- in default to undergo one months R.I. The substantive sentences of the appellant were ordered to run concurrently. 2. In short, the prosecution case runs as under:--- Something between 1986 and 14th August, 1992, the appellant was working as a servant of the deceased Aspi and was residing with him at 89, M.G. Road, Pune, Aspi was a bachelor, having four brothers and five sisters. Since about August 1992 he was not seen. On 10 October, 1993, the informant Phiroz and Homa who were brother and sister respectively of Aspi, visited his house from backside and noticed that things were lying scattered therein, indicating house breaking. Phiroz reported the matter to the police, who then broke open the lock on the front door and entered the house and gave the house in his possession. On 12th October, 1993, at about 8.45 p.m. when Phiroz, his wife and son were present inside the said house, it started raining. He went to the attic, opened a box which was there and saw inside it, a skeleton of a human body. He reported the matter to the police. Police arrived. Phiroz confirmed that it was the skeleton of his brother. 3. The F.I.R. of the incident was lodged by Phiroz on 14th October, 1993 at Cantonment Police Station. On its basis Vasant Shrotri, P.W. 11, the Assistant Commissioner of Police, registered an offence vide Exhibit 17. 4. The investigation was conducted in the usual manner; initially by Vasant Shrotri. Phiroz confirmed that it was the skeleton of his brother. 3. The F.I.R. of the incident was lodged by Phiroz on 14th October, 1993 at Cantonment Police Station. On its basis Vasant Shrotri, P.W. 11, the Assistant Commissioner of Police, registered an offence vide Exhibit 17. 4. The investigation was conducted in the usual manner; initially by Vasant Shrotri. He prepared panchanama of the scene of offence; sent the corpse for autopsy; seized the blood stained clothes on the corpse of the deceased; and recorded the statements under section 161 of the Criminal Procedure Code of the informant and some other witnesses. On 27th October, 1993 the investigating was taken over from Vasant Shrotri by P.I. Dilip Shinde P.W. 13. He interrogated the appellant. While in police custody, on 1st November, 1993 the appellant expressed willingness to get the weapon of assault viz. knife recovered. The said willingness was recorded in a panchanama in the presence of public panch Vijay Bidlan P.W. 7. Thereafter Dilip Shinde, Vijay Bidlan and some police personnel proceeded along with the appellant to the house of Aspi where from the staircase the appellant took out a blood stained knife which was wrapped in a pillow case. The said recovery was made under a panchanama. On 1st November, 1993, P.I. Shinde P.W. 13 asked P.S.I. Shivappa Mallesh P.W. 12 to enquire whether the appellant was prepared to give a statement. P.S.I. Mallesh took the appellant in confidence. The appellant gave a statement that he could get the chain, ring and wrist-watch of the deceased recovered. The said willingness was recorded in a panchanama and on the pointing out of the appellant the said articles were recovered. Since Mr. S.R. Chitnis, learned Counsel for the appellant has frankly stated that the said recovery evidence could not be assailed, we are not entering deeper into details of these recoveries. After completing the investigating, P.I. Dilip Shinde submitted the charge-sheet against the appellant, on 24th January, 1994. 5. Going backwards the autopsy on the corpse of the deceased Aspi, was performed on 14th October, 1993 by Dr. Laxman Pherwani P.W. 9, who found on it dried ante mortem blood clots; right lung decomposed; and fracture of hyoid bone. In the opinion of Dr. Pherwani, the deceased died on account of cardio-respiratory failure due to compression of neck with injuries on chest. 6. Laxman Pherwani P.W. 9, who found on it dried ante mortem blood clots; right lung decomposed; and fracture of hyoid bone. In the opinion of Dr. Pherwani, the deceased died on account of cardio-respiratory failure due to compression of neck with injuries on chest. 6. The case was committed to the Court of Session in the usual manner where the appellant was charged on a number of counts to which he pleaded not guilty and claimed to be tried. During trial the prosecution in all examined 13 witnesses. We may mention that there is no eye-witness of the incident and the case rests on circumstantial evidence. The learned trial Judge found that the circumstantial evidence adduced by the prosecution against the appellant was adequate to bring home his guilt on the counts mentioned in paragraph 1 and convicted and sentenced him in the manner stated in the said paragraph. Hence this appeal. 7. We have heard the learned Counsel for the parties and perused the entire material on record. In our view this appeal deserves to be partly allowed. 8. It is well-settled that circumstantial evidence can only be made a basis for conviction if:---(a) the circumstances are firmly established against the accused; (b) they conclusively lead to the inference of the guilt of the accused; (c) they are wholly inconsistent with the inference of the innocence of the accused; and (d) they are incapable of being explained on any other reasonable hypothesis excepting that of the guilt of the accused. Bearing the said norms in mind, we have reached the conclusion mentioned in paragraph 6 of this judgment. In our view, the circumstantial evidence adduced by the prosecution only brings home the guilt of the appellant for the offence under section 381 of the Indian Penal Code. 9. The three circumstances on which the conviction of the appellant is founded are:---(a) last seen; (b) recovery of blood stained knife on the pointing out of the appellant; and (c) recovery of gold chain, wrist-watch and gold ring of the deceased on the pointing out of the appellant. 10. We make no bones in observing that so far as the circumstance of last seen is concerned, it does not incriminate the appellant. 10. We make no bones in observing that so far as the circumstance of last seen is concerned, it does not incriminate the appellant. We say this because the evidence shows that the appellant was last seen with the deceased in the Court at Pune on 1st August, 1992 and the corpse of the deceased was recovered on 12th October, 1993. Since between the circumstance of last seen and recovery of corpse was a yawning gap of more than 14 months it cannot be inferred from this circumstance that it was the appellant who had murdered the deceased. 10-A. We wish to point that the circumstance of last seen in order to constitute an incriminating circumstance in a murder case must be in close proximity with the recovery of corpse of deceased. The rationable for this is that only in such a contingency would it probabilise the inference that the person with whom the deceased was last seen in all probability murdered him. And unless such an inference is probabilised it would not be an incriminating circumstance. 11. We now come to the circumstance of recovery of blood-stained knife on the pointing of the appellant. We have mentioned in paragraph 4 the circumstances and the manner in which this recovery was effected. Consequently we do not want to overburden this judgment by reiterating the relevant details. 12. However, we are constrained to observe that after the gravest circumspect we have reached the conclusion that the said recovery would not constitute incriminating evidence within the ambit of section 27 of the Evidence Act. The said section reads thus:--- "Section 27. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." The said section is in exception to the provisions contained in sections 25 and 26 of the Evidence Act. The former makes a confession to a Police Officer inadmissible in law and the latter only admissible if made in the presence of a Magistrate. 13. The former makes a confession to a Police Officer inadmissible in law and the latter only admissible if made in the presence of a Magistrate. 13. A perusal of section 27 of the Evidence Act would show that it is not recovery simplicitor at the instance of the accused from a certain place about which he has knowledge which would make the said recovery incriminating evidence. What would make it incriminating evidence is his statement that he had concealed the article sought to be recovered at a certain place and its recovery on his pointing out from that place. 14. If we examine the recovery of the blood-stained knife in the said perspective the said recovery would not be incriminating evidence within the meaning of section 27 of the Evidence Act. In this connection, it would be pertinent to refer to the English translation of the admissible portion of recovery panchanama which is in Marathi. The said translation shows that the appellant stated that he would show the place where the blood-stained cloth and knife were kept in the house, and he shall produce the said cloth and knife. In the recovery panchanama there is not even a whisper of the fact that it was the appellant who had concealed the cloth and the knife in the house from where it was to be recovered. It is true that in their statements in the trial Court, both the public panch of recovery Vijay Bidlan P.W. 7 and P.I. Dilip Shinde P.W. 13 stated that it was the appellant who had mentioned that he had concealed the knife and the pillow case in the house, but since this has not been mentioned in the recovery panchanama, the probability of it being an improvement to constitute incriminating recovery evidence within the ambit of section 27 of the Evidence Act, cannot be ruled out. 15. In such a situation we feel the safer and wiser course would be to go by the recovery panchanama. And if that is done the said circumstance cannot be held to incriminate the appellant. We are fortified in our view by the decision of the Supreme Court reported in 1980(1) S.C.C. 530 , (Pohalya Motya Valvi v. State of Maharashtra)1, cited by Mr. Chitnis. And if that is done the said circumstance cannot be held to incriminate the appellant. We are fortified in our view by the decision of the Supreme Court reported in 1980(1) S.C.C. 530 , (Pohalya Motya Valvi v. State of Maharashtra)1, cited by Mr. Chitnis. A perusal of paragraphs 13, 14 and 15 would show that in the said case spear was recovered on the pointing out of the accused, but in the recovery memo there was no mention of authorship of its concealment by the accused and the fact that he gave information leading to its discovery. The Supreme Court in paragraph 16 held that this recovery was of no consequence. It made some observations in paragraph 15 which we feel are pertinent to extract. They read thus:--- "15. ........ The recovery of a blood-stained spear becomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the appellant who gave information leading to its discovery was the person who concealed it." 16. We are now left with one circumstance namely the recovery of gold chain, wrist-watch and gold ring of the deceased on the pointing out of the appellant. As we have mentioned earlier, Mr. Chitnis has candidly stated that he cannot assail these recoveries beyond the pale of doubt. We have gone through the relevant evidence and we find merit in the concession made by Mr. Chitnis. But in our view, these recoveries would only bring home the guilt of the appellant for the offence under section 381 of the Indian Penal Code. 17. In our view, the circumstantial evidence adduced by the prosecution does not prove the guilt of the appellant for offences punishable under sections 302 and 201 of the Indian Penal Code. 18. In the result, this appeal is partly allowed. We set aside the conviction and sentences of the appellant for the offences under sections 302 and 201 of the Indian Penal Code and acquit him thereunder. We direct that in case he has paid the fine thereunder the same shall stand refunded to him. We however confirm the conviction of the appellant for the offence under section 381 of the Indian Penal Code. We direct that in case he has paid the fine thereunder the same shall stand refunded to him. We however confirm the conviction of the appellant for the offence under section 381 of the Indian Penal Code. We find that the learned trial Judge has sentenced the appellant to undergo three years R.I. and to pay a fine of Rs. 100/-, in default to undergo one months R.I. We also find that the appellant has been in jail for more than six years. In other words he has served more than the double of his substantive sentence on the said count. In the circumstances, we direct that the appellant who is in jail shall be released forthwith, unless wanted in some other case. Office to communicate this order forthwith to the concerned authorities. Appeal partly allowed. -----