JUDGMENT - BRAHME P.S., J.:---This is an appeal by appellant, Arjun Kulhad, challenging the order of conviction and sentence passed by the Additional Sessions Judge, Washim in Sessions Trial No. 4 of 1995 on 7th October, 1997, convicting the appellant of the offence under sections 302 and 201 of the Indian Penal Code and sentencing him to rigorous imprisonment for life and rigorous imprisonment for three years and to pay fine of Rs. 1,000/-, in default, to under go further R.I. for one month respectively for committing murder of an old woman namely Tulsabai, resident of Risod. 2. The appellant and one Narayan Sarode and Sk. Nawab Sk. Aziz stood trial before the Additional Sessions Judge, Washim for committing murder of Tulsabai who was mother of witnesses Arjuna Bhagat (P.W. 1) and Bhimrao Bhagat (P.W. 6). The prosecution case as has been revealed from the evidence led by the prosecution in the trial is that the victim Tulsabai, an old widow was staying in her own house at Risod and she was doing money lending business in the town and original accused No. 2 Narayan as well as accused No. 3 Sk. Nawab Sk. Aziz had borrowed sumptuous amount from her and both of them were not willing to repay the amount which they had borrowed from Tulsabai. Appellant Arjun was residing in the vicinity of the house of Tulsabai, but he was working with Tulsabai as a domestic servant and it appears that he was looking after her affairs as she was alone. As Tulsabai was well to do person, the appellant was lured due to greed for money and property of deceased Tulsabai. It was somewhere in the month of August 1994 that witness Latabai (P.W. 2) as usual in the morning went to the house of Tulsabai for supplying milk. The appellant was in the house. He took the milk and told witness Latabai (P.W. 2) that Tulsabai had gone outside and that after her return, she would get the money of the milk supplied. The appellant was in the house. He took the milk and told witness Latabai (P.W. 2) that Tulsabai had gone outside and that after her return, she would get the money of the milk supplied. On the same day, witness Pratibha Ingle (P.W. 5), who was residing in one of the houses of Tulsabai along with her father as tenant, saw that the appellant in the morning took the milk from Latabai (P.W. 2) and it was the appellant on the same day took out some wheat bags from the house of Tulsabai and locked her house and carried those wheat bags in the cart for being sold to one Pawan Chittarkar (P.W. 9). Bhimrao Bhagat (P.W. 6), son of Tulsabai, visited his house on 14th August, 1994. At that time, Tulsabai and appellant were in the house. According to him, Tulsabai told him about the selling of wheat as also refusal on the part of the original accused Nos. 2 and 3 to repay the amount. Bhimrao Bhagat (P.W. 6) again visited his house to see his mother on 17th and 20th August, 1994, but to his utter surprise he found the house locked. He could not get whereabouts of his mother. He came to know that the appellant was saying that his mother had gone outside. This was also the position so far as the other son Arjuna Bhagat (P.W. 1) was concerned as when he visited on 1st September, 1994, he found that the house was locked, one Tayadebai told him that the appellant Arjun told her that Tulsabai had gone outside. It was on 4th September, 1994, Bhimrao Bhagat (P.W. 6) lodged report (Exhibit 61) regarding missing of his mother Tulsabai. Thereafter as the police machinery was moving for action on 7th September 1994, witness Arjuna (P.W. 1) received message in the morning at about 5.00 a.m. that his mother's dead body was found lying in one of the rooms of the house, that he immediately rushed to Risod to his house where Tulsabai was residing. Bhimrao Bhagat (P.W. 6) also came to Risod and as his evidence before the trial Court shows the house, which was locked, was opened by breaking the lock with stone by the appellant and the place in the room where the dead body was kept beneath wooden logs was shown by the appellant. Bhimrao Bhagat (P.W. 6) also came to Risod and as his evidence before the trial Court shows the house, which was locked, was opened by breaking the lock with stone by the appellant and the place in the room where the dead body was kept beneath wooden logs was shown by the appellant. After the dead body was taken out, it was identified by Arjuna Bhagat (P.W. 1) and Bhimrao Bhagat (P.W. 6) to be that of their mother Tulsabai and then on the basis of report lodged to the Police Station, offence came to be registered as Crime No. 131/1994. The Investigating Officer arrested the appellant on 7-9-1994 under arrest panchanama which shows that the accused/appellant came to be arrested at 15.00 hours. The Investigating Officer in the course of investigation is said to have visited the place where the dead body of Tulsabai found and it is said to be in pursuance of the statement made by the appellant vide memorandum (Exhibit 65). 3. The Medical Officer, Dr. Santosh Sarda (P.W. 7) did autopsy on the dead body of Tulsabai and prepared post-mortem notes (Exhibit 63). In his opinion, as stated in the post-mortem report, the cause of death was due to asphyxia probably due to strangulation. He has also noticed fracture of thyroid bone and the injury was ante mortem. He also noticed strangulation mark around the neck and the thyroid bone was broken. This strangulation mark was 1" x 8" around the neck on thyroid bone. In the course of investigation further, the search of the house of accused was taken and from their some utensils and gold and silver ornaments were seized and the same were identified to be that of Tulsabai. After completing the investigation, charge-sheet was filed against the appellant and two other persons in the Court of Judicial Magistrate, who in turn committed the case to the Court of Session, Washim. Before the trial Judge, the appellant pleaded not guilty to the charge and claimed to be tried. At the trial, the prosecution had examined in all 13 witnesses including Arjuna Bhagat (P.W. 1), Lata (P.W. 2), Ashok Ambhore (P.W. 3), a neighbour of deceased Tulsabai, who has stated that the appellant was residing with Tulsabai in her house as domestic servant and he was taking milk at the house of Tulsabai. Pratibha Ingle (P.W. 5), Bhimrao Bhagat (P.W. 6), Dr. Pratibha Ingle (P.W. 5), Bhimrao Bhagat (P.W. 6), Dr. Santosh Sarda (P.W. 7), Damodar (P.W. 8) in whose presence, according to the prosecution, the accused made a statement regarding the dead body of Tulsabai and in pursuance of that he took the police and panchas to the house of Tulsabai and after opening the house by breaking the lock, shown the dead body that was kept hidden under the wooden logs. Learned trial Judge, after examining the appellant under section 313 of Cri.P.C., heard the appellant. He accepted the circumstantial evidence more particularly discovery of the dead body of Tulsabai at the instance of the appellant, the presence of the appellant in the house in the absence of Tulsabai since her disappearance from the village, recovery of gold and silver ornaments and utensils from the house of the appellant, came to the conclusion that it was the appellant who committed murder of Tulsabai and made attempt to disappear the dead body so as to wipe out the evidence of murder and that is how the appellant came to be convicted and sentenced as stated. The learned trial Judge, however, acquitted the other two persons who were tried along with the appellant. The order of conviction and sentence passed against the appellant is the subject-matter of challenge in this appeal. 4. We have heard Shri Daga, the learned Advocate appearing on behalf of the appellant. He has submitted that there is no evidence whatsoever to show involvement of the appellant even remotely in commission of the crime. The trial Court has admittedly accepted the circumstantial evidence as that was the only evidence on which the prosecution could lay its hands. In that also the most incriminating circumstance, according to the prosecution, was that of discovery of dead body at the instance of the appellant in pursuance of statement made by him under section 27 of the Indian Evidence Act. The learned Counsel for the appellant pointed out that this factum of discovery of the dead body at the instance of the appellant is totally false. As per the memorandum (Exhibit 65), alleged disclosure was made by the appellant on 7-9-1994 at about 11.35 a.m. As per the arrest panchanama, the appellant was arrested on 7-9-1994 around 15 hours. The learned Counsel for the appellant pointed out that this factum of discovery of the dead body at the instance of the appellant is totally false. As per the memorandum (Exhibit 65), alleged disclosure was made by the appellant on 7-9-1994 at about 11.35 a.m. As per the arrest panchanama, the appellant was arrested on 7-9-1994 around 15 hours. If that is accepted, then, by no stretch of imagination, it can be said that the appellant was in police custody at the time when he made a disclosure, in terms of memorandum (Exhibit 65). That apart, the learned Advocate for the appellant pointed out from the evidence of witness Arjuna Bhagat (P.W. 1) that on 7-9-1994, he received message that his mother is in the room in dead condition. In his cross-examination by the defence, he has further made it clear that he received that message on 7-9-1994 at about 5.00 a.m. As if this was not sufficient, his brother Bhimrao Bhagat (P.W. 6) made it clear in his evidence that at about 9.00 a.m. on 7-9-1994, he came to Risod and in his presence, the accused Arjun opened the lock of the room with the help of stone and then they entered the house and the appellant showed him the dead body of his mother which was beneath the wooden log. If we adhere to the evidence of witnesses Arjuna Bhagat (P.W. 1) and Bhimrao Bhagat (P.W. 6), as a natural corollary, it reveals that the police knew well before hand when the memorandum (Exhibit 65) was drawn, the fact that the dead body of Tulsabai was hidden under wooden logs in the room of her house. If that is so then basically the claim of prosecution that the dead body was discovered at the instance of the appellant in pursuance of the statement made by him under section 27 of the Indian Evidence Act falls to the ground. It has to be said that the very claim of prosecution that the accused had knowledge or it was within the exclusive knowledge of the appellant that the dead body was hidden in the house and that was most incriminating circumstance, cannot be said to be true. It has to be said that the very claim of prosecution that the accused had knowledge or it was within the exclusive knowledge of the appellant that the dead body was hidden in the house and that was most incriminating circumstance, cannot be said to be true. At least the material on record candidly goes to show the fact that the dead body was there in the room, hidden under the wooden logs as it was already known to the police and the fact that witness Arjuna Bhagat (P.W. 1) had knowledge of that fact when he received message in the morning at about 5.00 a.m., lends corroboration to the same. That also gains corroboration from the version of witness Bhimrao Bhagat (P.W. 6), when he has emphatically stated that he reached there at about 9.00 a.m. in the morning. In his presence, the accused showed the dead body that was hidden in the house. It goes without saying that these things have happened before the memorandum (Exhibit 65) can be drawn and this is the reason why we say that the factum of memorandum or discovery of the fact of dead body being placed in the room hidden under the logs at the hands of the appellant is doubtful. It is rather tainted with falsity and, therefore, that cannot be accepted as the circumstantial evidence incriminating in nature. The trial Court has obviously lost sight of these facts as to the knowledge of the dead body being there in the house and, therefore, the learned Judge has committed an error in accepting the evidence of discovery of the dead body. 5. We have also gone through the evidence of witnesses, Pratibha Ingle (P.W. 5), Latabai (P.W. 2) Kalawati More (P.W. 4) on the point that the accused was residing in the house, but that evidence is vague in the sense, this was relating to the period subsequent to the disappearance of deceased Tulsabai. Therefore, this evidence is also of no consequence muchless an incriminating circumstance connecting the appellant to the alleged commission of crime. 6. Even the evidence regarding the seizure of wheat, alleged to have been sold by the appellant by taking out from the house of the deceased is of subsequent period. As it appears their evidence was not precise as to the date on which that has taken place. 6. Even the evidence regarding the seizure of wheat, alleged to have been sold by the appellant by taking out from the house of the deceased is of subsequent period. As it appears their evidence was not precise as to the date on which that has taken place. Therefore, that cannot be taken into consideration as a circumstance showing nexus of the appellant to the commission of crime. 7. Even recovery of the gold and silver ornaments and utensils from the house of the accused when seizure was made, when the accused was in custody, has no significance in the sense, which is not at all incriminating showing direct nexus of the appellant with the commission of crime. It is not known nor it is brought on record since when the ornaments and utensils of Tulsabai were missing. It is likely that those articles might be missing from her house during the period she was alive. If that is so then merely because those articles were found in the house of the appellant cannot lead to infer that the murder of Tulsabai was committed by the appellant. 8. In the result, on our analysis of the evidence on record, we have come to the conclusion that the evidence was absolutely not sufficient so as to connect the appellant with the crime. We may say that at the most the circumstance as to recovery or discovery of the dead body at the house of the deceased, was sufficient to create strongest suspicion in the background that the appellant was working in the house of deceased Tulsabai as a domestic servant. But it is well said that suspicion howsoever strong cannot take the place of proof and as such the appellant cannot be held guilty of the offence with which he was charged. The learned trial Judge has committed an error in holding the appellant guilty for the offence. We have found that the conviction an sentence passed by the trial Judge cannot sustain. The appeal is allowed and the conviction and sentence passed by the Additional Sessions Judge, Washim dated 7-10-1997 in Sessions Trial No. 4/1995, against the appellant is set aside and the appellant is acquitted. The appellant is entitled to be released forthwith in case he is not required in any other case. Appeal allowed. -----