JUDGMENT - J.N. PATEL, J.:---Heard Ms. T. Khan, Advocate, appointed for the appellant, and Mr. T. Mirza, the learned A.P.P. for the respondent-State. 2. On 17-1-1991, the 7th Additional Sessions Judge, Nagpur, convicted the appellant Faridkhan s/o Rajjak Khan Musalman, for having committed offence under sections 302 and 201 I.P.C. and sentenced him to suffer imprisonment for life on first count and on the other count, to suffer R.I. for six months and to pay a fine of Rs. 100/- on each count, in default to suffer R.I. for seven days. The appellant has challenged his conviction by this appeal. 3. The facts leading to the prosecution of the appellant can be briefly stated as under: The appellant Faridkhan was married to deceased Amna in the year 1981. A son by name Farooq was born to them. The appellant thereafter deserted his wife Amna, the deceased, and she had been living at her father's place. As the deceased was not provided with any maintenance, she filed case against the appellant for maintenance. On 27-8-1988, the appellant-accused sent a message to his estranged wife Amna through Smt. Pushpa (P.W. 3). On this Pushpa (P.W. 3) came to the house of Abdul Rahim (P.W. 1), father of Amna, and as she was not at home, she told Nazama (P.W. 2), sister of the deceased Amna, that her brother-in-law (i.e. the appellant) was calling Amna. When Amna returned home, she received the message from Nazama (P.W. 2) and, therefore, she went to the house of Pushpa (P.W. 3) and from there she went with the appellant-accused Farid, and since then Amna was found missing. When father of Amna i.e. Abdul Rahim (P.W. 1) returned home and enquired about Amna, his daughter Nazama (P.W. 2) told him that she had gone to the house of Pushpa. On enquiring from Pushpa, he came to know that his daughter had left with Faridkhan, i.e. the appellant. As Amna did not return, Abdul Rahim (P.W. 1) took her search and waited for 2-3 days, but as she was not traced, he lodged the report with the police. Initially, police registered offences under sections 364, 365 I.P.C. against the appellant-accused, vide Crime No. 338/1998 of Police Station, Kamptee. The appellant-accused came to be arrested by the Police on 20-9-1998 vide arrest panchanama Exhibit 20. Initially, police registered offences under sections 364, 365 I.P.C. against the appellant-accused, vide Crime No. 338/1998 of Police Station, Kamptee. The appellant-accused came to be arrested by the Police on 20-9-1998 vide arrest panchanama Exhibit 20. After his arrest, the police were able to discover the dead body of deceased Amna wife of Faridkhan Musalman buried in a pit of grenade firing site. On discovery of the dead body, the police prepared the spot and inquest panchanama and a requisition to Medical Officer to conduct postmortem at the spot as the dead body was highly decomposed, was sent. Dr. M.V. Rao (P.W. 7) conducted autopsy on the spot and gave opinion that the probable cause of death being strangulation of the neck which had led to suffocation and assifixiation shock and death is due to respiratory cardiac arrest. After the postmortem was over, the dead body was handed over to the father of the deceased for performing last rites. Police found that Faridkhan had two accomplices with him in the commission of crime, i.e. one Qadarali s/o Haider Ali Sayyad and Suraj s/o Narayan Swami Mudliyar. Police was able to arrest Qadar Ali son of Haider Ali Sayyad, whereas second accomplice Suraj Narayan Swami Mudliyar was found to have absconded. The police added offence under sections 302 and 201 I.P.C. In the course of investigation, the police had recorded statements of witnesses and also forwarded the articles seized to the Forensic Science Laboratory for the report. After the completion of the investigation, charge-sheet came to be filed against two persons i.e. appellant-accused and Qadar Ali for having committed offences under sections 364, 366, 306, 302 read with 34 of I.P.C. The case was then committed to the Court of Session for trial. 4. On 30th October, 1999, the learned Additional Sessions Judge took up the case for trial and framed charge against the appellant-accused and co-accused Qadar Ali vide Exhibit 1. The appellant was charged for having committed offence under sections 364, 365 and 302 I.P.C. and against his accomplice charge for having committed offence under section 201 read with section 34 I.P.C. came to be framed. The appellant-accused did not plead guilty and claimed to be tried. The appellant was charged for having committed offence under sections 364, 365 and 302 I.P.C. and against his accomplice charge for having committed offence under section 201 read with section 34 I.P.C. came to be framed. The appellant-accused did not plead guilty and claimed to be tried. It was the case of the appellant-accused Faridkhan that he has been falsely implicated by the police in the case at the instance of his father-in-law and that the dead body recovered by the police was not of his wife Amna. The co-accused also pleaded not guilty. In the trial, the learned Additional Sessions Judge found the appellant-accused guilty of having committed murder of his wife Amna and for having buried her dead body after removing clothes from her corpse and by throwing the clothes into a well with intent to screen himself and to cause disappearance of evidence against him so as to escape from legal punishment, and acquitted the co-accused. The Court acquitted the co-accused. The Court acquitted the appellant-accused of the charges of having abducted his wife. 5. Before we proceed further in the matter, we may place on record that the appellant-accused, while undergoing imprisonment in Jail, has absconded after availing furlough some time in the year 1993 and, therefore, his appeal which was filed in the year 1991 remained pending. In spite of efforts to trace him out, he could not be rearrested. Therefore, this Court had issued notice to the Advocate of the appellant-accused, who had filed the appeal and were representing the appellant before the trial Court as well as before this Court. But the Advocate for the appellant also did not respond and, therefore, we were constrained to appoint Ms. T. Khan as an Advocate for the appellant and that is how the appeal has been taken up for hearing almost after lapse of 10 years. 6. Ms. Khan, the learned Counsel for the appellant, has assailed the judgment of the trial Court on various grounds. It is her contention that as the case of the prosecution rests on circumstantial evidence, the prosecution has not established any of the circumstance against the appellant-accused and the appellant-accused deserves to be acquitted. According to Ms. Khan, there is no evidence to show that the appellant-accused had necessary motive to commit murder of his wife. It is her contention that as the case of the prosecution rests on circumstantial evidence, the prosecution has not established any of the circumstance against the appellant-accused and the appellant-accused deserves to be acquitted. According to Ms. Khan, there is no evidence to show that the appellant-accused had necessary motive to commit murder of his wife. Secondly, the evidence of last seen together also has not been established by the prosecution. Further, the prosecution case that the dead body discovered by them was of Amna wife of the appellant-accused, cannot be accepted as the dead body which came to be exhumed was in highly decomposed stage and its identification was impossible and, therefore, the circumstance of discovery of dead body at the instance of the appellant-accused does not lead the prosecution any way near to point out at the guilt of the appellant-accused. It is further submitted that from the facts and circumstances on the record, it can be very well said that Amna, on being deserted by her husband, was a lady of easy virtue which can be inferred from the fact that inspite of Abdul Rahim (P.W. 1), father of Amna, having come to know that his daughter had left the house and did not return for 2-3 days, Abdul Rahim did not think it necessary to promptly lodge a report of the fact that his daughter has been abducted by Faridkhan and this delay in lodging the report, is fatal to the prosecution case. It is further submitted that the possibility of Amna, claimed to be deceased in the case, running away with one Suraj or Suresh who has been shown to be absconding, cannot be ruled out as it has come in the evidence that Suresh had also come to the house of Abdul Rahim enquiring about Amna. 7. Ms. Khan has submitted that recovery of dead body by police on the information given by the accused on being questioned, is not a conclusive circumstance, but it merely raises strong suspicion against him and in support of this contention, she has placed reliance on the case of (Kanbi Karsan Jadhav v. State of Gujarat)1, A.I.R. 1976 Supreme Court 821 and (Bakshish Singh v. State of Punjab)2, A.I.R. 1971 Supreme Court 2016. 8. Ms. 8. Ms. Khan has also drawn our attention to the fact that the Forensic evidence led by the prosecution also show that the condition of the body was such that it was almost impossible to identify it and, therefore, the evidence of identification of the dead body of Amna cannot be accepted. It is submitted that Abdul Rahim (P.W. 1), father of Amna, has identified the dead body as that of Amna merely on the say of police and the very fact that the police did not get any photographs of the dead body resulted in loss of this important evidence to the Court and, therefore, it will be highly unsafe to uphold the conviction and sentence of the appellant-accused for want of these material evidence that the dead body discovered by the police was that of Amna. Therefore, the appeal deserves to be allowed. 9. Mr. Mirza, the learned A.P.P. submitted that the prosecution has proved its case against the appellant-accused, beyond the shadow of doubt. There is no reason to disbelieve the witnesses on account of last seen together and that Smt. Pushpa (P.W. 3) and Santaribai (P.W. 4) have given evidence to the effect that they had seen appellant-accused going away with Amna and it is thereafter, Amna was not seen alive. Mr. Mirza submitted that the discovery of the dead body of deceased Amna at the instance of accused, coupled with the evidence of last seen together, conclusively proves that it is the appellant-accused alone who is guilty of having committed murder of his wife. 10. In support of his contention Mr. Mirza has placed reliance on the case of (State of Maharashtra v. Suresh)3, 2000(5) Bom.C.R. (S.C.)736 and (The State of Maharashtra v. Damu Gopinath Shinde and others)4, 2000(Supp.) Bom.C.R. (S.C.)616. 11. Mr. Mirza further submitted that it has come on record that the relation between Amna and appellant-accused were strained as Amna was deserted by her husband and she had initiated maintenance proceedings and this fixes the motive for which the appellant-accused murdered his wife. Mr. 11. Mr. Mirza further submitted that it has come on record that the relation between Amna and appellant-accused were strained as Amna was deserted by her husband and she had initiated maintenance proceedings and this fixes the motive for which the appellant-accused murdered his wife. Mr. Mirza submitted as regards the challenge on behalf of the appellant-accused that the dead body was not identified as that of Amna, there is no reason to disbelieve father and uncle of the deceased who have identified the dead body as that of Amna and their identification has not been dislodged in cross-examination and though the body might have been decomposed but then it could be identified by these witnesses. Mr. Mirza has also drawn our attention to the fact that even the clothes of the deceased were recovered at the instance of the accused from nearby well which strengthen the prosecution case against the appellant-accused of having committed murder of Amna and buried her naked and have thrown her clothes in the well. Therefore, the appeal deserves to be dismissed. 12. On the discovery of the dead body at the instance of the appellant-accused, the dead body was exhumed from the pit where it was buried. It came to be identified by Abdul Rahim (P.W. 1), father of the deceased Amna, and the police prepared the spot panchanama and inquest panchanama in presence of panchas, one of the panch being Amarnath Yadao (P.W. 6). As the body was found to have decomposed , police sent requisition to Dr. M.V. Rao (P.W. 7) to conduct autopsy on the dead body of Amna at the site itself. On receipt of such intimation, Dr. Rao (P.W. 7) visited the site along with Tahsildar. In his presence, the body was examined at the spot near Gada village and at about 5 p.m., he started postmortem. He found that the dead body was of female approximately 22 to 25 of age. There were no clothes. Ear rings and bangles were there on the body and the body was on the process of putrification cuticle exploited, skin has become white in colour excepting neck. Teeth were present. The body was well nourished, cold, approximately 11 days had passed after the death. Dr. Rao also found internal structure to be most decomposed excepting neck and cutiacally exploited slightly swollen on the abdomen. Mummification signs were nearly prominent. Teeth were present. The body was well nourished, cold, approximately 11 days had passed after the death. Dr. Rao also found internal structure to be most decomposed excepting neck and cutiacally exploited slightly swollen on the abdomen. Mummification signs were nearly prominent. Eyes were decongested and shrunkenized excepting the neck, sign of colour changes and critical not exploited at neck places. All other except skin of neck have become white in colour. Putrification seen fluid of degeneration process was coming out. The body was kept inside pit anteriorly at the ground portion both legs and limbs were intact. Right leg was folded. Skin exploration seen. He further found neck colour changed. Erythematosus red colour at places of neck seen, surface was raised, which was shown in the postmortem report and the fracture of 3rd, 4th ribs at left side anteriorly, but as the body was putrefied and skin changes seen, but the fracture rib and the trachice and skin colour change at neck were antemortem. The brain was completely dissolved and change of consistency. Thorax-fracture of 3rd and 4th ribs 1" above from the sternal junction. Larynx was broken at two places below the neck. Lungs were dissolved and other structures were mummified. The abdomen degenerated, peritoneum were mummified. Seres fluid colored and dried drained. The other structures under the process of dissolution. Viscera not collected as they were dissolved. Spinal code degenerated, spine were seen. In the opinion of the doctor, the cause of probable death is merely strangulation of neck leads to suffocation and assofixiation leading to shock and death due to respiratory cardiace arrest. The Investigating Officer made further enquiries from the Medical Officer to which Dr. Rao replied i.e. probable death might have occurred within 10 days period as the body is not completely putrefied especially the eyes, liver, heart and species are in degenerating process and dryness is seen there. The fracture of ribs are antemortem as there is blood oozing around the fracture end and stained. Therefore, on going through the evidence of Dr. M.V. Rao (P.W. 7), it is quite clear that the deceased met her death due to strangulation and thereafter she was buried and most probably the death might have occurred within the period of 10 to 11 days and, therefore, though this is not much disputed, we have no hesitation to hold that the deceased Amna died a homicidal death. M.V. Rao (P.W. 7), it is quite clear that the deceased met her death due to strangulation and thereafter she was buried and most probably the death might have occurred within the period of 10 to 11 days and, therefore, though this is not much disputed, we have no hesitation to hold that the deceased Amna died a homicidal death. 13. On the point of motive, the evidence of Abdul Rahim (P.W. 1), father of deceased is sufficient. He has stated that his daughter was deserted by the appellant-accused and that she was living at his house and that the appellant-accused did not provide any maintenance to his daughter and, therefore, she filed a case for maintenance against him and probably the appellant-accused wanted to put an end to the whole episode and that is why, he has done away with his wife. 14. It is the prosecution case that deceased Amna was last seen together with the appellant-accused. In support of this, prosecution has examined Smt. Pushpa (P.W. 3) who gave evidence before the Court that she knew the accused as well as deceased Amna since the time of their marriage. She has last seen deceased Amna on the day of Rakhi. According to her, when she was working at her house, the appellant-accused came and asked her to call Amna. This was at 11 a.m. She proceeded to the house of Amna, but found that she was not present at home. Therefore, she told Nazama that her brother-in-law was calling Amna. After some time, deceased Amna visited Farid and she was talking with Farid and both of them left that spot. Thereafter, she never saw her. The evidence of this witness is assailed on the ground that as she is neighbour of Amna, she is deposing falsely against the accused. It was also put to her that in her statement recorded by the Magistrate, she has stated that Amna had returned to her mother's house, but this does not discredit the witness, firstly because the omission has not been brought on record and in her statement before the police, she has not stated so to hold that it is a contradiction, is improper and, therefore, this evidence of Sau. Pushpa (P.W. 3) can be accepted as cogent and reliable. The prosecution has examined one witness namely Santribai (P.W. 4) on this point. Pushpa (P.W. 3) can be accepted as cogent and reliable. The prosecution has examined one witness namely Santribai (P.W. 4) on this point. Santribai (P.W. 4) has given her evidence that she happened to see the deceased Amna going on bicycle along with her husband and that was around 4 O'clock. She saw then going towards college and thereafter she never saw them. Though this witness was examined to corroborate the story of last seen together, it has been brought on record in her cross-examination that she had improved her evidence that she had seen Amna proceeding on bicycle along with the appellant-accused. This does not, in any manner, affects the evidence of Sau. Pushpa (P.W. 3). On the contrary, Pushpa's evidence is reliable as it stands corroborated by Nazama, in her cross-examination before the Court that Pushpa had come to their house and told that husband of late Amna was calling her. When Amna returned home, Nazama told her regarding the message given by Pushpa and that is how, deceased Amna proceeded towards the house of Pushpa. This clearly goes to show that Amna, on receiving the message of Pushpa from Nazama, went to Pushpa and according to Santribai (P.W. 4), she had seen deceased Amna along with appellant-accused on bicycle at 4 O'clock and thereafter, deceased Amna was not found alive. 15. Abdul Rahim (P.W. 1) father of the deceased Amna, also corroborates Nazama (P.W. 2) and Pushpa (P.W. 3) on this point and after searching for his daughter for 2-3 days, he ultimately lodged the report (Exhibit 10) that his daughter was missing and in the report expressed his suspicion that the appellant-accused might have kidnapped Amna from his house with an intention of detaining her for committing some bad act or even might have committed her murder because he came to know from Nazama that even Faridkhan was not found in his house for 4-5 days. The report lodged by Abdul Rahim came to be registered by P.S.I. A.S. Masram (P.W. 8), who initially registered the offence under sections 364 and 365 of I.P.C. Investigation in the matter was then taken over by Subhash Devisingh Malave (P.W. 9), who prepared the spot panchanama of the spot and also arrested the accused on 1-9-1988 itself. In the course of investigation, he recorded statements of witnesses. In the course of investigation, he recorded statements of witnesses. On 5-9-1988, during the interrogation of the appellant-accused, the police got the information that he had buried the dead body of Amna. Therefore, P.S.I. Malave (P.W. 9) sent a letter to the District Magistrate and obtained permission of the District Magistrate to exhume the body and sent letter to the Medical Officer to remain present on the spot for the purpose of postmortem. On 6-9-1988, he called panchas in the Police Station and recorded statement of the appellant-accused vide Exhibit 37 in the presence of panchas. Thereafter they proceeded to the spot indicated by the accused. The accused showed the spot to the police party. The police asked the sweepers to remove thorns lying over the pit and started digging the pit. When the pit was dug upto depth of 2 ½ ft, from the pit a dead body which was kept anteriorly was discovered. On this P.S.I. Malave prepared panchanama. He found that the dead body was in naked condition. The inquest panchanama of the dead body was also prepared. Abdul Rahim Sheikh Chand (P.W. 1), father of the deceased, identified the dead body to be that of deceased Amna, in presence of panchas. It is then, doctor performed postmortem of the dead body on the spot. Thereafter, the dead body was handed over to Abdul Rahim (P.W. 1). 16. On the point of discovery of the dead body, prosecution examined Amarnath Hiralal Yadao (P.W. 6), panch, who has given evidence that the accused stated to the police that he had buried his wife and he was ready to show the spot where the dead body was buried. Then police took them in the jeep. The accused took them to the spot. They proceeded upto Masjid near firing range. Then the accused showed them a pit which was having L shape which was covered with thorn of Ber tree. That place is known as Bara Pathar i.e. Pasture Land. Then the sweepers started digging the pit. The sweepers unearthed the pit till the depth of 1 ½ cubits, when one ear ring was discovered in that pit. When that pit was unearthed, they bound dead body. The mouth of the dead body was facing to the earth. When the dead body was exhumed, there was no clothes on the dead body. The sweepers unearthed the pit till the depth of 1 ½ cubits, when one ear ring was discovered in that pit. When that pit was unearthed, they bound dead body. The mouth of the dead body was facing to the earth. When the dead body was exhumed, there was no clothes on the dead body. He also stated that Tahsildar and Doctor were there. Doctor performed the post-mortem on the dead body. He also stated that the dead body was identified as that of Amna wife of the appellant-accused. This witness has also acted as panch on the spot panchanama (Exhibit 30) as well as the inquest panchanama (Exhibit 29). According to Amarnath Yadao (P.W. 6), on the next day again police called them and at that time, the accused made a statement that he was ready to hand over the clothes and hoe to the police. Then the accused took them near Bara Pathar, where there was water well. Accused took them near the water well and the clothes in the water well were taken out with the help of iron hook. This witness identified the clothes which were recovered and were at Articles A, B, C and D, before the Court. This panch has also acted as panch in respect of discovery at the instance of the original accused No. 2 who has produced the hoe from his house, which was probably used for digging the pit so as to burry the dead body. 17. It was contended by Miss. Khan, the learned Advocate for the appellant, that the mere fact that the dead body was pointed out by the accused or discovered as a result of the statement made by the accused, would not lead to the conclusion that the offence is committed by the accused and that this by itself, cannot be used as conclusive circumstance, it merely raises the strength of presumption against him. It is submitted that the prosecution has not been able to fill in the missing link as to how the appellant-accused got the knowledge that the dead body of Amna is buried in the pit, as it is also possible that he might have seen somebody concealing the dead body or must have got information from some one that it was concealed there. Therefore, this by itself, is not sufficient to convict the appellant-accused for having committed murder of his wife. Therefore, this by itself, is not sufficient to convict the appellant-accused for having committed murder of his wife. 18. In this case, the prosecution has been able to discover the dead body in the consequence of the information received from the appellant-accused. 19. The import of section 27 of the Evidence Act explained in the case of (Pulukori Kotayya v. Emperor)5, reported in A.I.R. 1947 Privy Council page 67, is as follows: "The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate." The evidence of Amarnath (P.W. 6), a panch, who is witness to the discovery and so also that of Abdul Rahim (P.W. 1), father of Amna, who also accompanied the police party and were led by the accused to the place where the dead body was buried, goes to show that the dead body was buried naked in the pit by the appellant-accused after committing her murder. The subsequent recovery of clothes of Amna from the well also fortifies the prosecution case. Therefore, we have no hesitation to hold that the discovery of the dead body at the instance of the appellant-accused is sufficient to infer that it is the appellant-accused who has committed the murder of Amna and then buried her dead body at the spot from where it was exhumed. In his examination under section 313 Cri.P.C. when a question was put to him that on his information, the dead body of Amna was discovered, the appellant-accused has stated that it is false. Similarly, in respect of the discovery of clothes from the well, he has shown his ignorance. In his examination under section 313 Cri.P.C. when a question was put to him that on his information, the dead body of Amna was discovered, the appellant-accused has stated that it is false. Similarly, in respect of the discovery of clothes from the well, he has shown his ignorance. This clearly indicates that the appellant is responsible for the murder of Amna and for concealing her body by burying it in a pit, as the appellant-accused has come up with no explanation as to how he came to know that the dead body of Amna was buried in the pit from where it was discovered in consequence of the information given by him. 20. Much has been argued by the learned Counsel for the appellant as regards the identification of the dead body. It has been said that the dead body was highly decomposed and it was impossible to be identified as dead body of Amna. We are unable to accept this contention as nothing has been brought on record to challenge the identification of the dead body. Abdul Rahim (P.W. 1), father of the deceased, identified the dead body as that of Amna, though the body was in decomposed stage. A fact that he could identify the dead body shows that it was in a position to be identified. The clothes which were on the person of the deceased at the time when she left the house, were also recovered from the nearby well and identified by him as belonging to his daughter. Therefore, we do not find this to be a lacuna in the prosecution case. 21. The learned Counsel appearing for the appellant has also tried to canvas before us that Amna being lady of easy virtue, might have absconded with one Suraj @ Suresh who was not traceable even after conclusion of the trial, which argument also cannot be accepted. Even if it is considered that Amna used to move freely and that she did not return on the unfateful day, her father did not go and lodge the report with the police, this by itself would not show that she had absconded. On the other hand, it has come in the evidence of Abdul Rahim (P.W. 1) that he tried to search for his daughter for 2-3 days and probably he thought that she might have gone somewhere and may return. On the other hand, it has come in the evidence of Abdul Rahim (P.W. 1) that he tried to search for his daughter for 2-3 days and probably he thought that she might have gone somewhere and may return. Ultimately, when his daughter did not return for 2-3 days, he became anxious and went to police and lodged the report expressing his suspicion that Faridkhan, the appellant-accused might have taken away his daughter with some bad intention. We, therefore, do not find any merits in the appeal and dismiss it. 22. Before we part with the case, we would like to record our appreciation for Ms. T. Khan, the learned Counsel appointed for the appellant-accused, for having given us best possible assistance in the given facts and circumstances of the case, while arguing the matter for 1 ½ day, after doing lot of home work and research. Therefore, we are inclined to quantify fees payable to Miss. T. Khan on par with the learned Additional Public Prosecutor. 23. We have dismissed this appeal, but as the appellant-accused is absconding, it will be the responsibility of the State to search for him and cause his arrest so that he can undergo rest of the sentence in jail. Appeal dismissed. -----