Judgment KHANDEPARKAR R.M.S., J.:---While agreeing with the judgment delivered by my learned brother upholding the conviction of the appellant for the offence of murder of Chanda, with respect, I am unable to persuade myself to agree on the point of upholding the conviction of the appellant relating to the charge of murder of Vimalbai and Pankaj. Though it is not necessary to refer to all the evidence on record as elaborate reference to the same is to be found in the judgment delivered by my learned brother, it would be necessary to refer to the relevant points and the related materials on record to justify the acquittal of the appellant in relation to charge of murder of Vimalbai and Pankaj. 2. At the outset, it would be worthwhile to take note of the charge against the appellant. The charge against the appellant is in relation to murder of three persons and act of disappearance of the evidence, relating to the offence alleged to have been committed by the appellant, by throwing the dead bodies of three persons into a well. The charge reads thus : That on 23-2-2002 at about 8.00 to 9.00 a.m. at village Chincholi, you committed murder by intentionally or knowingly caused the death of Vimal w/o Vasant Deshmukh by means of sharp weapon CHHANI (Chisel), and thereby committed an offence punishable under section 302 of the Indian Penal Code and within the cognizance of the Court of Sessions. Secondly, on the same date and place, subsequently thereafter, you committed murder by intentionally and knowingly causing the death of Chanda, daughter of Vasanta and deceased Vimal Deshmukh, aged about 13 years by means of sharp weapon CHHANI (Chisel), and thereby committed an offence punishable under section 302 of the I.P.C. and within the cognizance of the Court of Sessions. Thirdly, on the same date and place and subsequently after committing the murder of Ku. Chanda, you committed murder of Pankaj @ Sunny s/o. Vasanta and deceased Vimal Deshmukh, by throwing him into the well who died due to drowning and you have thereby committed an offence punishable under section 302 of the Indian Penal Code and within the cognizance of the Court of Sessions. Chanda, you committed murder of Pankaj @ Sunny s/o. Vasanta and deceased Vimal Deshmukh, by throwing him into the well who died due to drowning and you have thereby committed an offence punishable under section 302 of the Indian Penal Code and within the cognizance of the Court of Sessions. Lastly, on the same date and place, knowing that the offences of murder are punishable with death or life imprisonment have been committed, you caused certain evidence connected with the said offences to disappear by throwing the dead bodies of the deceased Sau. Vimal and Ku. Chanda into the well with intention to screen from legal punishment and thereby committed an offence punishable under section 201 of the Indian Penal Code and within the cognizance of the Court of Sessions. 3. Therefore, the case which the appellant was required to meet was that he had assaulted Vimalbai and Chanda with a sharp weapon Chhani (Chisel) resulting in their death whereas Pankaj was drowned and caused to death by throwing him into the well. Further, after causing death of Vimalbai and Chanda, the appellant had caused to disappear evidence of the offence of their murder by the appellant, by throwing the dead bodies of Vimalbai and Chanda into the well. 4. Before analyzing the materials on the record, it would be appropriate to know, as is revealed from the records, the description of the location where the incident is stated to have occurred and as is revealed from the records. The materials on record in that regard are in the form of spot panchanama and a sketch of the location drawn at the time of drawing of the spot panchanama being Exh. 55 and 55-A. On perusal of the records in that regard, it is revealed that the main spot is the well from which three bodies were fished out. The well is situated in the field of one Shankarlalji and lies behind Jawahar Navodaya Vidyalaya. The well is about 72 ft. in depth and has 14 ft. diameter (girth) from inside and is provided with concrete parapet around it and a pully is suspended to an iron angle resting on two pillars to enable to fetch water from the well with the help of a rope and the vessel. The water level lies at the depth of 42 ft. in depth and has 14 ft. diameter (girth) from inside and is provided with concrete parapet around it and a pully is suspended to an iron angle resting on two pillars to enable to fetch water from the well with the help of a rope and the vessel. The water level lies at the depth of 42 ft. from the top level of parapet around the well and the water depth in the well is of 30 ft. There is also an electric motor fixed to the well for drawing out the water. There is a lemon tree on the eastern side at about 15 ft. from the well and a pucca built house with two doors facing in its north side situated at about 20 ft. away towards the southern side of the well. On the western side of the well is a mango tree at a distance of 10 ft. beyond which lies a field with standing wheat crop; a spade with wooden handle bearing dried blood stained was also found lying at a distance of 3 ft. from the well towards its south. The spot of incident is stated to have been bounded on the east by Sadafuly (flower) plants beyond which lies ploughed vacant field and thereafter, at a distance of about one furlong lies Ganesh Tiles Mill; on the west by the wheat field and beyond that is another field of Batiya; on the north by wheat and onion fields beyond which lies open land, and on the south a small temple adjacent to which a nullah flowing east-west and beyond it by the building of Navodaya Vidyalaya. The sketch Exh. 55-A discloses that the house near the well is in the south-west direction of the well and beyond the house lies a road beyond which lies other house. The important aspect of the location to be borne in mind is that the house which was stated to be in occupation of Vasanta (P.W. 15) as well as the well in question lies to the west of Ganesh Tiles factory and there is neither any structure nor any big tree or other obstruction between the said factory and the said well as well as the said house. The fact that a person coming and going out of the said house can be seen from the factory is clearly established not only from the spot panchanama and the sketch but also from the testimony of the witnesses including Shankarlal (P.W. 5). Indeed, Shankarlal, in his testimony, had confirmed the fact that the witnesses had actually seen from the factory that Vasanta (P.W. 15) had come to his house around 11.00 a.m. on the fateful day. This fact also finds corroboration from the testimony of Raghuveer Singh (P.W. 12) as well as Kishor (P.W. 3). While Shankarlal had clearly stated in his testimony that, ""then at about 11.00 a.m. Vasanta came to his house. We had seen him from the factory. All of us went towards Vasanta Deshmukh"" Raghuveer Singh, in his testimony, had narrated the fact of Kishor and Sham telling Sham having come running towards the factory and telling Nandalal about Thakur having thrown Chanda into the well and thereafter, they having proceeded towards the field and after seeing the accused getting frightened returned to the factory, and while in the factory had seen Vasanta returning home. Similarly, Kishor, in his testimony, after narrating the incident of the accused having approached the contractor in the factory, while the witness was in the factory, has stated that thereafter, at about 11.00 a.m., Vasanta returned to his house. The witnesses Kishor and Raghuveer Singh, who have narrated the incident in sequence in which they had occurred and by referring to the timings of 23rd February, 2002, have also not missed to narrate where they were at different point of time of the said day, however, they have nowhere stated to have seen Vasanta returning home otherwise than from the factory. The fact that a person coming and going out of the house of Deshmukh could be seen from the factory stands clearly established from the testimonies of Kishor, Raghuveer and Shankarlal, apart from the spot panchanama and the sketch of the location site placed on record by the prosecution. 5. It is to be noted that it is not, and it cannot be the case of prosecution, that all the three persons were done to death at one and the same time. The charge specifically states that Vimalbai, Chanda and Pankaj were killed in a sequence, first being Vimalbai, then Chanda and thereafter Pankaj. 5. It is to be noted that it is not, and it cannot be the case of prosecution, that all the three persons were done to death at one and the same time. The charge specifically states that Vimalbai, Chanda and Pankaj were killed in a sequence, first being Vimalbai, then Chanda and thereafter Pankaj. All through out it is the case of prosecution that the incident occurred on 23rd February, 2002. It is further case of prosecution that on 24th February, 2002, at about 10.10 a.m., the police received a telephonic information about floating of three dead bodies in a well and those bodies were fished out of the well at 15.50 hours of the said day and the appellant-accused was arrested at about 10.30 p.m. on the same day by P.S.I. Turakmane (P.W. 16) pursuant to the direction in that regard by S.D.P.O. Rathod (P.W. 17). 6. The F.I.R. registered by P.S.I. Turakmane, admittedly, did not disclose the name of the culprit. However, it is the case of S.D.P.O. Rathod that Sham Mane and Kishor Malviya informed him about involvement of the appellant in the incident and Bal Tadak informed him about the illicit relations Vimalbai had with the accused and therefore, being satisfied of the fact that the appellant had murdered three persons, he asked P.S.I. Turakmane to arrest the appellant and accordingly, the appellant was arrested at about 10.30 p.m. from his residence. Prosecution has not examined either Sham or Bal Tadak. The testimony of Kishor (P.W. 3) nowhere discloses any such information having been imparted to the police on 24th February, 2002. On the contrary, the said witness had been firm about the fact that his statement was recorded by the police only on 25th February, 2002. It is pertinent to note that when this fact was brought to the notice of S.D.P.O. Rathod while he was in the witness box, the Police Officer, apart from denying the statement of Kishor that his statement was recorded on 25th February, 2002, did not even venture to confirm that the statement of Kishor was, in fact, recorded on 24th February, 2002. There is no reason disclosed by prosecution as to why the S.D.P.O. felt shy to confirm as to whether the statement of Kishor was really recorded on 24th or 25th February. There is no reason disclosed by prosecution as to why the S.D.P.O. felt shy to confirm as to whether the statement of Kishor was really recorded on 24th or 25th February. In normal circumstance this discrepancy might have appeared to be of not much relevancy or importance. However, it assumes importance from the fact that the materials on record nowhere disclose as to how the police were able to come to the conclusion or even had any indication to suspect the appellant to be the culprit in the matter, when he was arrested for the alleged crime. If really the information was received in that regard by the police from Sham and Bal Tadak, what was the reason for the prosecution for not calling them as the witnesses before the Court. Was there any difficulty in securing their presence before the Court? Were they not living at the time the matter was ripe for trial? There is total silence on the part of prosecution in that regard. Apparently, the evidence, as it stands on the record, nowhere discloses P.W. 3 to have informed the police on 24th February, 2002 about commission of the offence by the appellant. I am fully aware that absence of evidence in this regard cannot by itself be of any help to establish the innocence of the accused. But, the said fact cannot be allowed to be totally forgotten while analyzing the evidence on record to ascertain as to how far prosecution has been able to bring home the guilt of the accused in relation to the alleged offence. 7. The charge relates to murder of three different persons, undoubtedly, belonging to the same family. It also specifies the offence of killing of those persons having been committed one after another. It will be, therefore, necessary to ascertain from the record as to what extent the evidence corroborates the allegations of prosecution in relation to the offence vis a vis each of the persons stated to have been killed. 8. As regards the death of Vimalbai, the charge is that she was done to death by the accused by assaulting her with a sharp weapon Chhani i.e. Chisel and thereafter, her dead body was thrown into the well with the intention to destroy the evidence of her murder by the accused. 8. As regards the death of Vimalbai, the charge is that she was done to death by the accused by assaulting her with a sharp weapon Chhani i.e. Chisel and thereafter, her dead body was thrown into the well with the intention to destroy the evidence of her murder by the accused. This prosecution story is sought to be established on the basis of testimony of Kishor (P.W. 3) stated to be a star witness of the prosecution and his testimony alleged to have been corroborated by the Doctor (P.W. 13) and other witnesses namely Shankarlal (P.W. 5), Raghuveer Singh (P.W. 12), Sandeep (P.W. 6), Vasanta (P.W. 15) and Lata (P.W. 9). 9. As far as witness Kishor (P.W. 3) is concerned, his testimony relating to involvement of the appellant in relation to the offence pertaining to Vimalbai is to the effect that he had been to her house on the relevant day and time to fetch milk and on that occasion, he was accompanied by Sham. His testimony further discloses that they had witnessed the quarrel between Vimalbai and the accused in the sense that they were abusing each other and that the witness, after being served with the milk, and Sham were asked by Vimalbai to leave the place and accordingly, they had started returning, but while they were likely to proceed to return, the accused inflicted iron to my blow on the head of Vimalbai, due to which Vimalbai fell down. At that time, the witness was at a distance of about 10 to 12 ft. from the said house. As soon as Vimalbai fell down, Chanda, daughter of Vimalbai, came running towards the witness requesting for their help to save her mother. The testimony of Kishor (P.W. 3) in that regard reads thus: ""When we were likely to proceed, the accused inflicted tomy blow on the head of Vimalbai. It was iron tomy. Due to it Vimalbai fell down. On which Chanda ran towards us and requested us ""Mama Mama save my mother."" Thereafter, suddenly the accused also came there and dragged away Chanda and took her near the well and assaulted her and threw her into the well and further the accused told the witness to leave the spot and not to tell anything what he had seen there. The exact testimony of the witness in that regard reads thus: ""So suddenly the accused Manohar came there. He caught hold hair of Chanda and took her near the well situated in the field and there he inflicted iron tomy on her head and thereafter, he threw her into the well. Thereafter, the accused told her that we should leave the place and we had not seen anything. Due to which we got frightened."" Apart from these facts, the witness Kishor (P.W. 3) has not stated to have seen anything relating to the alleged murder of Vimalbai by the accused. Therefore, when one analyses the testimony of Kishor (P.W. 3) in relation to the alleged offence of murder of Vimalbai by the accused, no doubt, independently of other evidence, it is revealed that he has, undoubtedly, deposed to have seen the accused inflicting a blow with iron tomy on the head of Vimalbai, as a result of which she fell down and thereafter, the witness saw the accused coming towards Chanda, who had rushed to them asking for their help, took her to the well, assaulted her and threw her into the well. There is no information forthcoming from the witness Kishor that either he had seen the accused going back to the house where Vimalbai was said to have been assaulted or that he had seen the accused taking the dead body of Vimalbai to the well or throwing it into the well. On the contrary, the testimony of Kishor, as far as the offence against Vimalbai on the part of the accused is concerned, it is restricted to the fact of inflicting iron tomy blow on the head of Vimalbai and falling of Vimalbai on the ground on account of such blow. It is pertinent to note that the witness has also stated that he had gone back to the field where the well is situated from which body of Vimalbai was fished out on the next day. The witness has also stated of having seen Vasanta returning home on the same day. The witness has also stated about the contractor Shankarlal and others having gone to the field after the alleged incident. But his testimony is totally silent about any action on the part of the accused in relation to Vimalbai apart from narrating the incident of assault by iron tomy on the head of Vimalbai. 10. The witness has also stated about the contractor Shankarlal and others having gone to the field after the alleged incident. But his testimony is totally silent about any action on the part of the accused in relation to Vimalbai apart from narrating the incident of assault by iron tomy on the head of Vimalbai. 10. The testimony of Dr. Premchand (P.W. 13) in relation to the post-mortem on the dead body of Vimalbai discloses that there were six injuries noted on her body being described under column No. 17 of the post mortem report and three under column No. 9 being the injuries under the caption head. The description thereof confirmed by the doctor during the testimony before the Court is as under: ""On examination of the dead body, I found internal and external injuries as per column No. 17 as follows: 1. Lacerated wound over occipital scalp 10 x 2 x 1 cm. oblique right above downwards. 2. Lacerated wound of size 3 x 1.5 x 1 cm. occipital scalp 4 cm. below and left lateral to injury No. 1. 3. Lacerated wound 2 cm. above right ear of size 1 x 1 x 0.5 cm. 4. Lacerated wound 4 cm. above left ear on temporal scalp 8 x 2 x 1 cm. oblique anterior posterior. 5. Lacerated wound over left forearm 5 cm. above wrist joint on lateral aspect of size 1 x 1 x 0.5 cm. vertical. 6. Lacerated wound left leg 5 cm. above ankel joint on lateral aspect of size 1 x 1 x 1.5 cm. All these injuries are ante-mortem injuries. Injury Nos. 1 and 2 are vital injuries to cause the death in ordinary course. (2) As per column No. 19 of the post mortem report, I found the following injuries: 1. Fractures skull occipital central region 4 x 1 cm. depressed oblique right above downwards. 2. Fractures skull on temporal region 4 cm. above left mastoid 3 x 1 cm. depressed oblique anterior posterior. 3. Haematoma lacerations to brain matter in occipital and left temporal region present. 4. Stomach contains semi-digested food. I had not seen water in lungs and stomach. Considering the nature of injuries caused to skull, death can be possible by article No. 13 i.e. Channi shown to me. These injuries cannot be self-inflicted injuries. As per the P.M. report, it is not seen as suicidal death. 4. Stomach contains semi-digested food. I had not seen water in lungs and stomach. Considering the nature of injuries caused to skull, death can be possible by article No. 13 i.e. Channi shown to me. These injuries cannot be self-inflicted injuries. As per the P.M. report, it is not seen as suicidal death. The death may be homicidal. Injury Nos. 1 and 2 as per column No. 17 are very serious injuries and it may cause death."" The doctor clearly opined that the injury Nos. 1 and 2 in column No. 17 were of very serious nature and might have caused the death. The doctor, however, has nowhere opined as to whether any one out of these two injuries by itself, was sufficient to cause death or not nor has stated whether the death was as a result of cumulative effect of both the injuries. Neither prosecution thought it proper to get the doctor's opinion in that regard nor the post mortem report discloses anything in that respect. Added to this, the doctor has clearly opined that both the injuries might have been caused by the article No. 13 i.e. Chhani. 11. As already seen above, witness Kishor has narrated the incident of assault and giving of one blow by iron tomy on the head of Vimalbai. The post mortem report and the testimony of doctor discloses two severe injuries on two sides of the head of the deceased and that they were caused by Chhani. It is pertinent to note that prosecution has not taken pains to bring on record as to how the second injury was caused or might have been caused to Vimalbai and everything has been left for interferences and guess work, totally forgetting that prosecution was dealing with a criminal case wherein the person who is accused of commission of such an offence can be sent to gallous if such an offence is established against him. Added to this, witness Kishor is firm on the aspect of nature of weapon which was used for inflicting the blow on the head of Vimalbai and he has said that it was iron tomy. Added to this, witness Kishor is firm on the aspect of nature of weapon which was used for inflicting the blow on the head of Vimalbai and he has said that it was iron tomy. In the course of cross-examination of that witness, he has further confirmed that tomy is a weapon and it is used for uprooting nails from walls, whereas the doctor says that the injuries on the head of Vimalbai might have been caused with the weapon called ""Chhani"". The other evidence on record in the form of testimony of panch witness and that of Police Officers shows that the weapon Chhani is totally different from the weapon tomy. Knowing well that the charge being of very serious nature and prosecution was required to establish the same beyond doubt and not to await for some folly on the part of the accused or his Advocate to be committed to come in aid of the prosecution case, it was primarily required for prosecution to establish involvement of the accused in the case of death of Vimalbai, if at all it was a true fact of which prosecution was allegedly satisfied in the course of investigation. Apparently, therefore, the medical evidence on record nowhere corroborates the testimony of Kishor (P.W. 3) as far as it relates to death of Vimalbai. 12. Before proceeding to other witnesses, it is also necessary to take note of one more statement of fact from the testimony of Kishor and of which much ado is made by prosecution to claim support to the charge against the appellant. It is stated by the witness Kishor in his testimony that the accused had told him and others that whatever they had seen, that they were not supposed to tell to anybody and the said statement on the part of Kishor is said to be referring to the murder of three persons including Vimalbai by the accused. The relevant statement in that regard in Kishor's testimony reads thus:- ""The accused came to our factory at about 9.00 to 9.30 a.m. and threatened our contractor Shankarlal Yadav whatever we had seen we should not tell to anybody; otherwise he would kill all of us."" 13. It is pertinent to note that the above statement by the witness Kishor is after narration of the incident seen by him prior to the alleged threat by the accused to Shankarlal. It is pertinent to note that the above statement by the witness Kishor is after narration of the incident seen by him prior to the alleged threat by the accused to Shankarlal. There is nothing on record apart from the statement of Shankarlal himself referring to any admission on the part of the accused of having killed any person by him, otherwise than intimation to the witness by Kishor regarding throwing of Chanda by the accused into the well. In other words, the statement in the testimony of the witness Kishor to the effect that he and other persons were threatened by the accused that they should not disclose to any one whatever they had seen, refers to the incident which was seen by Kishor at the time when Kishor and Sham had been to the house of Vimalbai to fetch milk. Obviously, the statement of Kishor relates to the incident of assault on Vimalbai by the accused and throwing of Chanda into the well, and not to any other incident. Therefore, the expression used in the testimony to the effect ""whatever we had seen"" by the Kishor relates to the incident which had been witnessed by Kishor and narrated by him to others and the incident which was stated to have been seen by Kishor relates only to two facts; first assault by iron tomy on the head of Vimalbai and second throwing of Chanda into the well. Kishor, admittedly, nowhere disclosed to have seen any other act on the part of the accused in relation to Vimalbai and therefore, the said expression cannot be used to be referring to some other acts allegedly committed by the accused which prosecution wants to infer on the basis of the evidence of Shankarlal. To what extent Shankarlal's evidence will help prosecution to improve the expression ""whatever we had seen"" to include the alleged acts of murder of Vimalbai and Pankaj that can be seen while analyzing the testimony of Shankarlal. 14. The testimony of Shankarlal (P.W. 5) is heavily relied upon by prosecution for the alleged extra-judicial confession by the accused. Perusal of his testimony would disclose that he was not informed anything about the incident either by Kishor or Sham, who were allegedly eye-witnesses to the incident. His testimony discloses that one Nandalal informed him as to what was allegedly communicated to him by Sham and Kishor. Perusal of his testimony would disclose that he was not informed anything about the incident either by Kishor or Sham, who were allegedly eye-witnesses to the incident. His testimony discloses that one Nandalal informed him as to what was allegedly communicated to him by Sham and Kishor. Undoubtedly, Kishor, in his testimony, has stated of narration of the incident to Nandalal. The exact version from Kishor's testimony on the record reads thus: ""We told entire incident to Nandalal."" This statement in Kishor's testimony is to be found immediately after the narration of the fact of rushing to the factory consequent to the alleged threat by the accused which was preceeded by the act of throwing of Chanda into the well. Apparently, the expression ""entire incident"" in the testimony of Kishor relates to the incident of assault with a blow of iron tomy on the head of Vimalbai and throwing of Chanda into the well and no other incident. This is also apparent from the testimony of Shankarlal who has deposed that, ""Sham and Kishor told to Nandalal first that accused had thrown away Chanda into the well. Then Nandalal came to me by running and told me that accused had thrown away Chanda into the well."" Apparently, neither Sham nor Kishor had told to Nandalal anything beyond throwing of Chanda into the well by the accused. Admittedly, on the face of testimony of Shankarlal, he was informed by Nandalal only about the incident of Chanda being thrown into the well by the accused. Apparently, therefore, Shankarlal had no information of any act other than throwing of Chanda into the well by the accused. The witness Shankarlal, however, thereafter claims to have been informed to him by accused when the accused had come to the factory, that the accused had made all the three persons to sleep. The exact words used by the witness Shankarlal are to the effect ""Teeno ko sula diya"". It is pertinent to note that this filmy style expression does not find any corroboration by any of the witnesses of the prosecution. Apart from the fact that this is totally contrary to the normal human conduct that he would openly make such an admission after having threatened the people that they had not seen anything and they should not tell anybody as to what they had seen. Apart from the fact that this is totally contrary to the normal human conduct that he would openly make such an admission after having threatened the people that they had not seen anything and they should not tell anybody as to what they had seen. Apparently, if the accused was so conscious to warn all those people that those people should not disclose the alleged act of assault on Vimalbai and throwing of Chanda into the well to anybody so that the accused is not nabbed or arrested for the offence, it is unbelievable that the very person, at the very next moment, will make an admission of the nature which is alleged to have been made by the accused before Shankarlal. That apart, neither Kishor nor Raghuveer Singh, who happened to be the persons present in the factory, support the theory of this filmy dialogue. Neither Kishor discloses in his testimony of any such admission on statement on the part of the accused before Shankarlal nor Raghuveer Singh states anything in that regard though he confirms the fact of accused having come to the factory and threats having been given to the contractor. In other words, Raghuveer Singh was very much present when the accused had approached Shankarlal in the factory and if the accused had made any such statement admitting the offence of commission of murder of all three persons in the manner it is stated to have been made, certainly Raghuveer Singh would not have forgotten the same to narrate before the Court when he was examined nor prosecution would have forgotten to bring the said fact on record. Extra-judicial confession is not a negligible piece of evidence. Had the prosecution been armed with such an evidence, if at all it was really available to prosecution, there would not have been any sort of hesitation on the part of prosecution to bring the same on record when Raghuveer Singh was examined after examination of Shankarlal, if at all they had forgotten about it at the time when Kishor was examined prior to examination of Shankarlal. Being so, it is not possible to believe Shankarlal in relation to alleged extra-judicial confession on the part of the accused in relation to the alleged murder of three persons by the accused. 15. Being so, it is not possible to believe Shankarlal in relation to alleged extra-judicial confession on the part of the accused in relation to the alleged murder of three persons by the accused. 15. Besides, the alleged statement can, by no stretch of imagination, be said to be a confession of any offence by the accused in absence of there being absolutely no elaboration of any sort regarding contents of the extra-judicial confession. The statement of witness as regards the alleged extra-judicial confession reads thus: ""When I asked accused what happened, he told that he had slept all three persons i.e. ""Teeno ko sula diya"". He further told that he would sula denga to Vasanta also in the evening time."" The witness, apparently, quotes meaning of ""sula diya"" to mean ""persons were made to sleep"". What is the import of this phrase expressed by the accused? Does it mean that they were made to sleep permanently? Does it mean that they were made to sleep for the time being? Is there any normal meaning attached to the words ""sula denga"" to mean that ""the person is made to die""? There is absolutely no evidence in that regard on record and yet prosecution expects the Court to infer and indulge in guess work in favour of the prosecution in a criminal case where the accused is charged of murder of three persons. 16. The alleged extra-judicial confession cannot be believed for yet another reason. The statement refers to the alleged intention on the part of the accused to make Vasanta ""to sleep"" in the evening time. The evidence on record, which has come through the testimony of Vasanta himself, discloses that Vasanta, after the alleged statement by the accused to Shankarlal, had met the accused for not less than two occasions on the same day and on both these occasions, the accused had flatly refused to accept any involvement in the death of any of the family members of Vasanta. If at all the intention of the accused was also to assault or to kill Vasanta, as is said to be the meaning derived by prosecution from the alleged statement of accused to Shankarlal, certainly there would have been at least violent reaction by the accused vis a vis Vasanta when he met the accused. If at all the intention of the accused was also to assault or to kill Vasanta, as is said to be the meaning derived by prosecution from the alleged statement of accused to Shankarlal, certainly there would have been at least violent reaction by the accused vis a vis Vasanta when he met the accused. However, the testimony of Vasanta discloses a friendly conversation with the accused by Vasanta even after the alleged incident. Being so, there is absolutely no justification for believing Shankarlal in relation to the alleged extra-judicial confession by the accused in relation to the alleged three murders by the accused. 17. At this stage, it is also to be noted that the so called extra-judicial confession was not even brought to the notice of accused while the accused was being examined under section 313 of the Code of Criminal Procedure. There is absolutely no question put to the accused under 313 of Cri.P.C. regarding the alleged extra-judicial confession stated by witness Shankarlal. There is no doubt that any such a lapse on the part of the trial Court can be remedied by the Appellate Court. However, there is absolutely no need of questing the accused on this aspect because the alleged confession is itself unbelievable and therefore, there is no need to question the accused on that point as by no stretch of imagination said alleged piece of evidence can be said to be in any manner incriminating evidence against the accused in the facts and circumstances of the case. 18. Perusal of testimony of Shankarlal would disclose that it merely confirms narration of information by Nandalal to him and further that Kishor and some others along with Shankarlal had been to the field during morning hours on 23rd February, 2002 when they had seen the accused near the well and that, thereafter, Shankarlal had told Vasanta about the accused having murdered his wife and two children and having thrown them into the well and that, thereafter, Vasanta should lodge report to the Police Station. Apart from this, the testimony of Shankarlal is of no help to prosecution in any manner. One thing, however, remains totally unanswered by Shankarlal as to on what basis he had stated that all the three persons were murdered by the accused and thrown into the well. Nandalal did not inform him anything about the same nor Kishor and Sham. Apart from this, the testimony of Shankarlal is of no help to prosecution in any manner. One thing, however, remains totally unanswered by Shankarlal as to on what basis he had stated that all the three persons were murdered by the accused and thrown into the well. Nandalal did not inform him anything about the same nor Kishor and Sham. He did not witness any act on the part of the accused killing any of the three persons. He did not verify dead body of any of these three persons in the well any time prior to intimation of alleged murder of three persons to Vasanta. In the circumstances, Shankarlal had no information with him to justify his intimation to Vasanta except the alleged extra-judicial confession by the accused. Once it is seen that in spite of the fact that Raghuveer Singh was present at the time the accused had approached Shankarlal, as also, Kishor and neither of them support any such extra-judicial confession on the part of the accused to Shankarlal nor there was any intimation to Shankarlal about any such acts having been committed by the accused, the extra-judicial confession being unbelievable, the entire testimony of Shankarlal becomes doubtful and therefore, cannot be held to be in any manner helpful to prosecution. The witness is thoroughly unbelievable. The witness has no hesitation in exaggerating the things to any extent without any basis and therefore, it is risky to rely upon the testimony of such a person. 19. It is also pertinent to note that neither Kishor nor Raghuveer Singh disclose any intimation having been given by them to Shankarlal in relation to the alleged offence by the accused and Shankarlal himself also does not claim any intimation having been received from any one of them in relation to the alleged offence by the accused. But, on the contrary, he was specific about the informant to him being Nandalal. There is no confirmation about the alleged intimation by Nandalal to Shankarlal. In the circumstances, even the statement of Shankarlal that Nandalal had informed him is also doubtful. The said statement is preceded by another statement that Nandalal was informed about throwing of Chanda by the accused by Sham and Kishor. There is no confirmation about the alleged intimation by Nandalal to Shankarlal. In the circumstances, even the statement of Shankarlal that Nandalal had informed him is also doubtful. The said statement is preceded by another statement that Nandalal was informed about throwing of Chanda by the accused by Sham and Kishor. Nodoubt, Kishor, in his testimony, has stated that the incident was narrated to Nandalal, but one fails to understand as to how that fact can be corroborated by Shankarlal who had no first hand knowledge about the same. Indeed, as rightly observed by my learned brother, the trial Court has totally forgotten the rules of evidence while recording the evidence. Section 60 of the Indian Evidence Act, 1872 clearly provides as under: ""Oral evidence must, in all cases, whatever, be direct; that is to say, if it refers to a fact which could be seen, it must be the evidence of the witness who says he saw it, if it refers to the fact which could be heard, it must be the evidence of the witness who says he heard it and if it refers to the fact which could be perceived by any other sense or in any other manner, it must be the evidence of the witness who says he perceived it by that sense or in that manner."" It was an elementary thing to know for the prosecution as well as for the trial Court that intimation regarding the alleged incident having been stated to have been given by Sham and Kishor to Nandalal, it was necessary for prosecution to bring this fact on record either through Sham or through Kishor and to get the corroboration thereof by Nandalal. As far as Shankarlal is concerned, it is purely hearsay evidence. Besides, it was not for Shankarlal, a person who can go to any extent in his testimony, to make any attempt to make the Court to believe that he is telling the truth, to establish the alleged fact of narration of incident by Kishor to Nandalal. The testimony of Shankarlal is a typical example of Marathi saying ""Raicha Parvat"". 20. Coming to the testimony of Raghuveer Singh, the same merely confirms the fact that Sham had come running to Nandalal and again one finds repetition of same mistake which was committed in relation to the testimony of Shankalal i.e. hearsay evidence. The testimony of Shankarlal is a typical example of Marathi saying ""Raicha Parvat"". 20. Coming to the testimony of Raghuveer Singh, the same merely confirms the fact that Sham had come running to Nandalal and again one finds repetition of same mistake which was committed in relation to the testimony of Shankalal i.e. hearsay evidence. Apart from that, it only confirms the fact that the accused had come to the factory and had threatened the contractor and others that they should not tell others whatever they had seen. However, in the course of cross-examination, he has confirmed the fact that after fishing out all the bodies from the well, police did not talk anything about the incident to him nor he gave any information to the police regarding involvement of the accused or otherwise. 21. Before proceeding to other witness, one common factor in the testimony of all these three witnesses, which is to be noted, is that Vasanta, on that day, had come to his house at around 11.00 a.m. He found his wife and children missing from the house. He was informed by Shankarlal that they had been done to death and their bodies were thrown into the well; yet, there was no reaction of whatsoever nature by Vasanta. Even though different persons behave in different manner in a similar situation and may react in different manner to the same incident, yet total absence of reaction on the part of a married person on the intimation of wiping out of his entire family consisting of wife and two children is totally unbelievable and gives rise to various doubts. Vasanta, therefore, appears to have had a casual talk with all these persons during all the time in relation to disappearance of his wife and children without any reaction by him. 22. Witness Vasanta (P.W. 15) confirms that the contractor Shankarlal had told him that his wife and children were thrown into the well after being assaulted and that the said acts were stated to have been done by the accused. 22. Witness Vasanta (P.W. 15) confirms that the contractor Shankarlal had told him that his wife and children were thrown into the well after being assaulted and that the said acts were stated to have been done by the accused. Neither the testimony of Kishor nor that of Shankarlal or of Raghuveer Singh discloses that after the alleged intimation by Shankarlal to Vasanta, Vasanta had made any attempt to verify said intimation either by going to the well to ascertain whether the bodies of his wife and children were lying in the well or by verifying as to whether any sign of assault on any of those persons were available either in the house or near the well. On the contrary, Vasanta coolly deposes that on receipt of such intimation, he went to his brother's place and narrated the incident to his sister-in-law. It is pertinent to note that when he narrated the alleged incident to his sister-in-law, he was not convinced about the said information and that too, without any verification. Furthermore, he deposed that he waited for his sister-in-law to arrive at the site in order to ascertain from the accused whether he had really killed his wife and children. As already observed above, various persons may react in a different manner to a similar situation. However, a person married to a lady for number of years and having two children; one of the age of 13 years and another of 7 years, having found them missing from the residential house during the period of alleged absence of such person and further informed that all those three members of his family were murdered and their bodies were drown at a particular place, can it be believed that such a person would proceed to his brother's place without even trying to see whether he can save his family members or any one of them? Even if a person is informed that his family members are done to death, will he not try to make an attempt with the hope that he may be able to save some of them at least? Entire conduct of Vasanta, after alleged intimation of death of all these three persons, is not only unusual but unbelievable in the given circumstances. It is not that a person cannot behave abnormally in a given situation. Entire conduct of Vasanta, after alleged intimation of death of all these three persons, is not only unusual but unbelievable in the given circumstances. It is not that a person cannot behave abnormally in a given situation. Vasanta's conduct in the circumstances is sufficient to raise doubt about his involvement in the alleged offence. This conclusion is inevitable after considering the testimony of Vasanta along with that his sister-in-law Lata, as is contended by the learned Advocate for the appellant. 23. P.W. 9 Lata has deposed that on 23rd February, 2002, at about 12.00 noon, Vasanta came to her house and he was frightened. When he was asked about the reason for being frightened, she was informed by Vasanta that the accused had thrown his wife and children into the well after quarrelling with them. As already observed above, neither the testimony of Vasanta nor of any other witness disclose any verification on the part of Vasanta regarding alleged intimation given by Shankarlal to him regarding murder of all three persons and throwing their bodies into the well and yet Vasanta ventures to narrate to his sister-in-law about the same and that too, when he appears to be frightened. If the wife and both the children of Vasanta were done to death by the accused and their bodies were thrown into the well, then without verifying the said intimation given to him by Shankarlal, what was the reason for Vasanta to get frightened about? It is pertinent to note that Vasanta himself had stated in his testimony that when he narrated the incident to Lata he was not convinced about the intimation given by Shankarlal to him and yet he appeared as frightened to Lata. What could be the reason? Neither the investigation machinery thought it proper to inquire into the matter nor prosecution made any efforts in that regard to get more information from any of the witnesses including Vasanta and Lata. Obviously, every one appeared as if was in hurry somehow to send the accused to gallous. I do not find any reason to discard the argument of the learned Advocate for the appellant in this regard that the police are merely interested in adding feathers to their cap by getting the accused convicted somehow without making any efforts to find out the truth. I do not find any reason to discard the argument of the learned Advocate for the appellant in this regard that the police are merely interested in adding feathers to their cap by getting the accused convicted somehow without making any efforts to find out the truth. Nodoubt, as has been held by the Apex Court, lapses on the part of the investigating machinery cannot benefit the accused in case prosecution is able to establish guilt of the accused otherwise by bringing necessary evidence on record. But, here is a case where investigating machinery has been totally negligent in the matter of investigation and prosecution also does not lack in any manner in the race of negligence. 24. Yet another aspect in relation to Vasanta is that in spite of wife and children being found missing from the residence all through out the day, he did not take steps to confirm about the alleged murder of all three persons by the accused and he also did not venture to approach the police authorities on the very day and that too, in spite of being made aware of the necessity of such report by the contractor Shankarlal to him. Furthermore, Vasanta nicely enjoys dinner at his brother's house and thereafter, on the next day, he thought of finding out whereabouts of his wife and children after distributing milk. Does it show a normal reaction from a person to a situation where his wife and children were disappeared and messages being received by him were to the effect that they had been murdered by someone else and their bodies were thrown into the well situated hardly at the distance of 20 ft. from his house? All the above referred evidence in relation to Vimalbai, therefore, nowhere makes out any case regarding the accused having murdered Vimalbai or having thrown her body into the well after her murder. Inspite of the fact that the house and the well were visible from the factory and that the workers in the factory were made aware of throwing of Chanda into the well by the accused and also inspite of alleged knowledge to those workers about absence of Vasanta at the residence at the relevant time, nobody has seen the accused either committing murder of Vimalbai or throwing her body into the well. Nobody has seen the accused going to the house of Vasanta after the alleged act of throwing of Chanda into the well. No witness has confirmed any such incident on having seen the accused going to the house of Vasanta after he had thrown Chanda into the well. The learned A.P.P. has strenuously argued that in such case the last seen theory would be applicable. But for making the theory of last seen applicable, the victim and accused must be seen together at the last time when they were seen by some one else. In the case in hand, the accused was last seen with Chanda when he had thrown her into the well, which incident had occurred after assault by accused on Vimalbai. It is the testimony of Kishor which admittedly, discloses that after inflicting the blow of iron tomy on Vimalbai's head, the accused came out of the house at a distance of 10 ft., where Kishor was standing at that time, dragged Chanda from there to the well which was situated at a distance of 20 ft. away from the house and threw Chanda into the well after assaulting her. There is no evidence on record to show that the accused, thereafter, was seen going back to the house of Vasanta. But, on the contrary, even after the said incident, the accused was seen near the well and that is confirmed by Shankarlal as well as other witnesses, who have deposed that when they had come to the field after getting intimation about the act by accused of throwing Chanda into the well, the accused was standing near the well and threatened them not to come near the well, otherwise they would be assaulted. In other words, the evidence on record shows that since throwing of Chanda into the well by the accused, the accused was all throughout near the well or in the field and he had not gone to the house of Vasanta. Added to this, the medical evidence shows that Vimalbai expired on account of two injuries which were caused on two sides on her head. The evidence of Kishor is that only one blow was given on the head of Vimalbai by the accused. Here the question arises as to who gave the second blow on the head of Vimalbai and when. The evidence of Kishor is that only one blow was given on the head of Vimalbai by the accused. Here the question arises as to who gave the second blow on the head of Vimalbai and when. Absolutely there is no evidence in that regard and yet prosecution wants to invoke the theory of last seen together, when the accused and Vimalbai were not seen in company with each other after the accused was seen near the well after he had thrown Chanda into the well. Therefore, there is absolutely no scope for invoking the last seen together theory in relation to death of Vimalbai. There is no evidence to show as to who caused the injury on the head of Vimalbai by giving second blow. There is no evidence to show as to which was the injury caused on account of blow by the accused on Vimalbai. Undoubtedly, the evidence, does disclose that one blow was give to Vimalabi and it was on the head of Vimal and on account of two injuries suffered on the head of Vimalbai, she had suffered death. There is absolutely no evidence to show that after the death of Vimalbai her dead body was transported from the house to the well by the accused and thereafter, thrown into the well. 25. It is also to be noted that there is no evidence collected by the investigating machinery or placed before the Court by the prosecution regarding any of the signs of violence on the part of the accused in relation to assault on Vimalbai or any other person at the site on the said day. Considering the injury suffered by Vimalbai on her head, it is but natural that lot of blood must have oozed out from her body. The evidence on record shows that after the blow by the accused Vimalbai had fallen on the ground. Neither any attempt was being made to collect any sign of body having been either dragged to the well from the house or any other material which can link the accused with the second injury on the head of Vimalbai or that she had expired before being carried to the well or that her dead body was carried from her house and thrown into the well by the accused. There is absolutely no evidence to establish these missing links. 26. There is absolutely no evidence to establish these missing links. 26. As already seen above, the doctor, in his testimony, has disclosed that the injuries found to the skull of Vimalbai were possibly caused by the weapon like Chhani (Article 13). Undisputedly, according to prosecution itself, the only person who had seen the incident and examined before the Court in relation to assault by the accused on Vimalbai is Kishor (P.W. 3). Kishor, in his testimony, has stated that Vimalbai was assaulted by an iron tomy. He has further stated that tomy is a weapon which is used for uprooting of nails from the walls. There has been no attempt by prosecution at any time to get the weapon seized by the investigating machinery in the course of investigation, to get it identified by witness Kishor. The panch witness Alokkumar (P.W. 4), undoubtedly, has stated that the article No. 13 to be tomy. He has also said that it was recovered from the well at the instance of the accused. However, in the course of cross-examination, he has candidly admitted that Chhani is different from tomy and tomy is used for plucking nails from walls, whereas Chhani is used for digging purpose or cutting wood. He has further stated that article 13 is used for digging well and it is called as Chhani. Prosecution did not venture to seek any explanation as regards contradictions in the examination-in-chief where the panch has identified article 13 to be tomy which is used for plucking nails from wall, whereas in the cross-examination, he has explained the same to be Chhani used for digging well. The learned trial Court was also happy to be a silent spectator to the said proceeding in this regard. The matter does not end here. Mr. Devichand Chavan, P.C. B. No. 1640 (P.W. 8), in his testimony, while trying to confirm the recovery panchanama, has stated that the accused had informed the panchas that he was ready to hand over Chhani which was concealed by him in the field of Kulkarni. First of all, this evidence again was not admissible considering the provisions of section 60 of the Evidence Act. But, having brought on record, it sufficiently adds to the confusion and certainly, weaken the case of prosecution. First of all, this evidence again was not admissible considering the provisions of section 60 of the Evidence Act. But, having brought on record, it sufficiently adds to the confusion and certainly, weaken the case of prosecution. Neither the recovery panchanama nor the panch witness anywhere states that the accused had any time referred to any weapon as Chhani. The witness Kishor specifically refers to the weapon used by the accused for inflicting blow to be tomy. The panch witness also, initially, has stated that what was recovered was iron tomy. Whereas, the Police Officer all throughout refers to the weapon which was referred to as Chhani. As already observed above, in spite of the fact that Kishor (P.W. 3) was having full knowledge about the difference between tomy and Chhani, prosecution did not get the weapon identified by the witness Kishor. The discrepancy in the descriptions of the weapon given by the panch and Police Officer and totally different description regarding alleged weapon used for assault on Vimalbai being given by the eye-witnesses, there is nothing on record to establish the link between the weapon which was allegedly used by the accused for assault on Vimalbai and the one stated to have been recovered at the instance of the accused. It is to be noted that there is no panchanama drawn nor there is any evidence brought on record of any attempt made by the police authorities to ascertain whether there was any other weapon like tomy available in the said well or not at the time when the alleged Chhani was stated to have been recovered from the well. The panchanama in this regard was absolutely necessary in view of the statement on the part of Kishor that the weapon used for assaulting Vimalbai was tomy and the witness very well knew the difference between tomy and Chhani. As the accused had identified the place where the weapon was kept and such a place being a well with sufficient water in it, it was necessary to ascertain whether any weapon of the nature which was stated to have been used for assaulting Vimalbai by the accused in terms of the description given by the witness Kishor was hidden in the well. Neither such an effort was made nor the weapon seized was identified by Kishor. Neither such an effort was made nor the weapon seized was identified by Kishor. Being so, prosecution evidence is not sufficient to established the act of the accused in assaulting Vimalbai with the weapon which is allegedly recovered at the instance of the accused. Prosecution, in that regard, has utterly failed to establish the same. 27. There is yet another piece of evidence which is also to be noted. The spade having some human blood stains on its handle was found near the well from which the bodies were fished out. The injuries on the bodies of Vimalbai were apparent. Was there any link between the spade and the injuries on Vimalbai? What is the evidence collected by the investigating machinery or brought on record by prosecution in relation to any activities being noticed or having taken place in the house of Vasanta after the accused had thrown Chanda into the well? Apart from the alleged last seen theory, what is the other material on the record to link the accused with death of Vimalbai or throwing of her body into the well? These and all above referred points which are of vital importance remain unanswered. This is not a mere negligence or lapses on the part of the investigation or prosecution, but there are too many wide gap left in the evidence and therefore, the necessary chain of events required to link the accused with the alleged offence in relation to death of Vimalbai has not been established and therefore, in my considered opinion, there is no case made out by prosecution for conviction of the accused under sections 302 and/or 201 of the Indian Penal Code in relation to Vimalbai's death. 28. It is also to be noted that the scene of offence is not far away from the school building. The incident is said to have occurred on 23rd February, 2002. It was Saturday. It is not the case of prosecution or anybody that was a holiday for the school the incident is said to have occurred around or between 8.00 to 9.00 a.m. There is nothing on record to disclose at what time the school opens for its regular classes. No attempt has been made either by the investigating machinery or prosecution in that regard to bring any evidence on record. 29. No attempt has been made either by the investigating machinery or prosecution in that regard to bring any evidence on record. 29. The deficiencies disclosed above in the evidence produced by prosecution in relation to the alleged murder of Vimalbai by the accused can by no stretch of imagination be said to be of minor nature or can be ignored while appreciating the evidence and arriving at the finding in relation to the accusation of the charges against the accused. 30. Argument was canvassed on behalf of prosecution that false answers given to the questions by the accused are to be considered against him and they are to be considered as sufficient to establish the missing links. Reliance was placed in that regard in the decision of the Apex Court in the matter of (State of Maharashtra v. Suresh)1, reported in 2000(5) Bom.C.R. (S.C.)736 : 1999(7) Scale 386 . Attention was drawn in that regard to paras 26 and 27 thereof. The Apex Court therein has held in those paras as under: ""26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the Criminal Court that his knowledge about the concealment was on account of one of the last two possibilities the Criminal Court can presume that it was concealed by the accused himself. This is because accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the presumption is a well justified course to be adopted by the Criminal Court that the concealment was made by himself. Such an interpretation is not inconsistent with the principles embodied in section 27 of the Evidence Act. 27. It is regrettable that the Division Bench had practically nullified the most permittable incriminating circumstance against the accused spoken to by P.W. 22 Dr. Nand Kumar. Such an interpretation is not inconsistent with the principles embodied in section 27 of the Evidence Act. 27. It is regrettable that the Division Bench had practically nullified the most permittable incriminating circumstance against the accused spoken to by P.W. 22 Dr. Nand Kumar. We have pointed out earlier the injuries which the doctor had noted on the person of the accused when he was examined on 25-12-1995. The significant impact of the said incriminating circumstance is that the accused could not give any explanation whatsoever for those injuries and therefore, he had chosen to say that he did not sustain any such injury at all. We have no reason to disbelieve the testimony of P.W. 22 Dr. Nand Kumar. False answer offered by the accused when his attention was drawn to the aforesaid circumstance renders that circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing ""a missing link"" for completing the chain."" 31. It is pertinent to note that the above observations were made in relation to the evidence pertaining to recovery under section 27 of the Evidence Act wherein recovery of the dead body was pursuant to the statement of accused under section 27 of the Evidence Act and statement by accused was to the effect that ""her dead body is kept concealed in the field; I will take it out and produce the same; come with me."" Referring to this, the Apex Court had observed thus:--- ""One of the formidably incriminating circumstances against the accused was that dead body was recovered as pointed out by the respondent."" 32. All the inferences which were said to be permissible to be drawn in para No. 26 were in the circumstances which were prevailing and available in the said case wherein recovery of the dead body was pursuant to the statement of the accused and in that context, the Apex Court has said that even when the opportunity was given to the accused, instead of giving proper explanation in that regard, the accused preferred to give false statement. In these circumstances, such a statement can be used against the accused and can be used for establishing a missing link. In these circumstances, such a statement can be used against the accused and can be used for establishing a missing link. The false answer which has been stated to have been given in the case in hand is in relation to recovery of Chhani and that, in spite of the fact that he had stated before the panchas and the panchas having confirmed the fact that recovery of Chhani was at the instance of the accused, and the accused has ventured to deny the said fact by calling it to be false. As regards whether the answer is false or not, it will be analysed subsequently. But, at this stage, suffice it to say that the ruling of the Apex Court is in relation to the fact where the dead body of the person was recovered at the instance of the accused. It was not in relation to any weapon used for or in the alleged offence that was recovered in the matter. Mere recovery of weapon by itself does prove the involvement of the accused in a crime. However, the knowledge about concealment of the dead body itself can give rise to various inferences. The Apex Court in (M. Narsinga Rao v. State of A.P.)2, reported in A.I.R. 2000 S.C.W. 4427, while dealing with the law regarding presumptions, has observed that: ""Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances."" In a case where the dead body of the victim itself is recovered at the instance of the accused, apparently, three conclusions would follow as has been observed by the Apex Court in para No. 26 quoted above. In those circumstances, certainly a false answer given to a reply in relation to recovery of the dead body at the instance of the accused can certainly be of great significance and can be used against the accused even to provide a missing link for completing the chain. In those circumstances, certainly a false answer given to a reply in relation to recovery of the dead body at the instance of the accused can certainly be of great significance and can be used against the accused even to provide a missing link for completing the chain. However, that cannot be some rule applicable in case of any weapon stated to have been recovered at the instance of the accused and that too, in a case where identity of the weapon itself has not been established nor it is established that the same being the weapon used in the alleged offence. 33. As regards the argument pertaining to the missing link based on the decision of the Apex Court in Suresh's case, it is to be noted that a false answer by the accused in the course of his examination under section 313 of the Code of Criminal Procedure can undoubtedly lend assistance to the prosecution case to establish the missing link for completing the chain. But, the same can be in relation to the subject matter of the question in respect of which the accused gives a false answer and it cannot be extended to any other missing link. Being so, when the argument is sought to be canvassed on behalf of prosecution that the false answer given by the appellant in relation to recovery of the weapon would suffice to provide the missing link for completing the chain in relation to the charge of murder of Vimalbai, it would be necessary to scan through not only the relevant questions and answers but also through the testimony of the panch witness relating to recovery as well as other evidence in that regard and to ascertain as to what extent the missing link in relation to the alleged murder of Vimalbai by the accused is established. The question to the accused in relation to recovery of the weapon is in relation to testimony of P.W. 4 Alokkumar and P.W. 8 P.C. Chavan. The question No. 13 in relation to P.W. 4 Alokkumar was to the effect that he had deposed that on 26-2-2002 police had called him in Police Station, Shegaon and in his presence, the Deputy Superintendent of Police Rathod had inquired with the appellant and the appellant told that he had thrown the weapon into the well and accordingly, Dy. The question No. 13 in relation to P.W. 4 Alokkumar was to the effect that he had deposed that on 26-2-2002 police had called him in Police Station, Shegaon and in his presence, the Deputy Superintendent of Police Rathod had inquired with the appellant and the appellant told that he had thrown the weapon into the well and accordingly, Dy. S.P. Rathod prepared the memorandum panchanama and in that connection what the appellant had so say. In answer the appellant had stated that, ""It is false. They have obtained my signature forcibly."" As regards the testimony of P.W. 8 P.C. Chavan, the appellant was told that the said witness had deposed that on 26th February, 2002 the appellant had showed his readiness to hand over Chhani or tomy concealed and accordingly, memorandum panchanama was prepared and police staff, panchas, S.D.P.O. Rathod went near the well at Sawarna Fata and in the well, the appellant had shown the spot where Chhani was concealed. The answer to the question by the appellant was to the effect that ""It is false"". The second question in relation to the testimony of Chavan was to the effect that the witness had further deposed that he then got down into the well with the help of a and took out Chhani which was identified by the appellant and then, they went to the appellant's house, spread the ashes of burnt clothes and found some pieces of burnt clothes. To that, the answer by the appellant was that ""It is false"". The further question on the matter in issue was in relation to the testimony of S.D.P.O. Rathod being question Nos. 41 and 42. Under question No. 41, the appellant was informed that the witness Rathod had deposed that on his direction A.P.I. Turakmane had arrested the appellant and sought his P.C.R., during which the appellant had shown willingness to produce the chisel and therefore, the memorandum panchanama was prepared and as per the say of the appellant, they proceeded to Khamgaon-Shegaon road and at marking of mile stone No. 11, the appellant asked them to stop and took them near the well where the appellant had thrown the chisel and P.C. Chavan got down into the well and took out the said Chisel. On having asked as to what appellant had to say about the same, it was the answer by the appellant that ""It is false. I was not taken anywhere."" Question Nos. 42 was to bring to the notice of the appellant that witness Rathod had further deposed that when the appellant took them to his house and near his hut, the appellant spread over the ashes and handed over pieces of burnt clothes and in Police Station, Shegaon his black pant was seized and accordingly, the seizure panchanama was prepared and on 26th February, 2002 he was referred for medical examination and for collecting blood sample and nails and that on 26-2-2002, 27-2-2002 and 28-2-2002, witness Rathod recorded statements of witnesses and on 3-3-2002 witness Rathod sent the seized property to the C.A., Nagpur and then, on 4th March, 2002, he sent requisition to Magistrate for recording statement of Shyam and Kishor under section 164 of the Code of Criminal Procedure. To the said question, the appellant replied that ""It is false. Nothing was seized from me"". 34. Reading of questions and answers in relation to question Nos. 13, 14, 22, 23, 41 and 42 referred to above, undoubtedly, shows that the appellant had stated that prosecution witnesses have deposed falsely and further he has stated that his signature was obtained forcibly and that, he was not taken anywhere. If one reads the questions which were asked in relation to deposition of three witnesses and the answers given by the appellant, the appellant has nowhere raised a specific defence in relation to the facts which have been stated to have been deposed by those witnesses and brought to the notice of the appellant in the course of statement under section 313 of the Code of Criminal Procedure. The only additional facts which have been stated by the appellant are that his signature was taken forcibly and he was not taken anywhere. These statements, according to the Public Prosecutor, if read with the defence raised in the course of cross-examination of the same witnesses, would disclose falsity on the part of the appellant. It would, therefore, be necessary to test his argument by referring to the testimony of each of the witnesses. These statements, according to the Public Prosecutor, if read with the defence raised in the course of cross-examination of the same witnesses, would disclose falsity on the part of the appellant. It would, therefore, be necessary to test his argument by referring to the testimony of each of the witnesses. As far as witness Alokkumar (P.W. 4) a panch witness on recovery is concerned and if one peruses the cross-examination of said witness, it will be seen that there is no specific case put forth to the said accused except to the extent that the well from which the weapon was taken out is near the road and anybody could have approached to the said well and the fact that the article No. 13 is used for digging well and it is called as ""Chhani"" and it is different from tomy. Apart from this, whatever, cross-examination of the witness has been done, it nowhere discloses any specific case having been putforth to the witness to discredit the witness or to bring out further information in relation to the alleged recovery of weapon. To say that the appellant has putforth his specific defence to the witnesses and to say that it is revealed from the suggestions given to the witnesses, it is necessary that such suggestions must relate to the main case which the accused person is required to meet in relation to the charges against him. All other suggestions or questions which are put to the witnesses may be either to discredit him or to take out further information from the witnesses which can lend support to the case of the accused or which can destroy the case of prosecution. But that may not be the specific case of the accused himself. The information sought for from the witness as to who had accompanied on the occasion or whether they had prior information as to whether they are required to go at a particular place, cannot be said to be related to specific defence of the accused, but such question are necessary either to discredit the witness or prove to the Court that the witness cannot be believed in relation to the subject matter on which he is deposing or to bring on record an information which can assist the accused in discrediting the evidence on record or to weaken the case of prosecution. But, that by itself cannot be said to be a specific defence of the accused as far as panch witness is concerned. Therefore, cross-examination of the said witness nowhere contradicts the statement of the accused under section 313 of the Code of Criminal Procedure in answer to the question where he had said that the testimony to be false or that he had said that his signature was obtained forcibly or that he was not taken anywhere. 35. Much is sought to be made out by prosecution regarding the statement that ""I was not taken anywhere"" in answer to question No. 41 and it is sought to be contended that this statement discloses falsity on the part of the accused which establishes the missing link. It is not possible to accept the contention of the prosecution in this regard. If we properly read question No. 41, it relates to the testimony of S.D.P.O. Rathod in relation to the alleged expression of willingness by the accused to produce chisel and their proceeding to Khamgaon-Shegaon road at marking on mile stone No. 11 and there the appellant-accused stopping them and took them to the well where allegedly the appellant had thrown the chisel. 36. Needless to say that whether recovery at the instance of the accused is established by the prosecution or not is to be ascertained basically from the testimony of panch witnesses in that regard. The testimony of Police Officers at the most be utilized for the purpose of corroboration of such testimony and not independently unless there are specific reasons to believe such police testimony independently. Statements to any Police Officers in relation to recovery are admissible in evidence only when such statements are confirmed by panch witnesses and not otherwise, or else section 161 of the Code of Criminal Procedure would be rendered nugatory, knowing well the provisions of section 27 of the Indian Evidence Act. Bearing this in mind, if we peruse the testimony of panch witness, he nowhere refers to any mile stone. On the contrary, he specifically refers to the place as ""Savarna Fata"". Neither witness Chavan (P.W. 8) nor S.D.P.O. Rathod corroborates this fact that the place where the jeep had stopped in order to proceed to the well was Savarna Fata, where the weapon might have been thrown by the accused. On the contrary, he specifically refers to the place as ""Savarna Fata"". Neither witness Chavan (P.W. 8) nor S.D.P.O. Rathod corroborates this fact that the place where the jeep had stopped in order to proceed to the well was Savarna Fata, where the weapon might have been thrown by the accused. Therefore, it was necessary for the investigating machinery first to draw clear identification panchanama of the well wherein the weapon is said to have been thrown because it was not possible for prosecution to identify the exact place of concealment of the weapon unless water from the well was thrown out and the well was dried. Identity of the place of concealment in such cases will have necessarily to be of the entire well itself and therefore, it was necessary for the investigating machinery to get a clear description of the well or record. Neither the panch gives any such description nor the Police Officers. On the contrary, the panch refers to the place at Savarna Fata whereas the Police Officers refers to a place at the mile stone No. 11. There has been no effort on the part of prosecution to establish the link between Savarna Fata and mile stone No. 11. Bearing this in mind, can the statement of the appellant-accused that he was not taken anywhere be stated to be totally false and can it be said to be helpful in establishing the missing link to establish chain? In order to avail any benefit of any statement which can be considered as a sort of admission on the pat of the accused so as to lend help to the prosecution to establish the missing link, it is necessary to know in what respect and in relation to what subject the answer has been given and such an answer cannot be allowed to be used beyond such subject. Once the prosecution itself was confused about the exact place of the well, can an irrelevant or inconsistent answer given by the accused be stated to be of use to prosecution to establish the missing link? 37. Thus, even assuming that the answer can be used for the benefit of prosecution to establish the missing link, as already observed above, it has to be in relation to the subject in respect of which the answer has been given. The answer was in relation to recovery of weapon. 37. Thus, even assuming that the answer can be used for the benefit of prosecution to establish the missing link, as already observed above, it has to be in relation to the subject in respect of which the answer has been given. The answer was in relation to recovery of weapon. As already seen above, the weapon referred is a Chhani. The eye-witness Kishor has referred to the weapon as iron tomy. All the witnesses invariably admit that Chhani is different from tomy. Being so, to what extent the answer stated to be false answer in relation to recovery of Chhani can be held to be establishing the missing link to complete the chain where it is the case of eye-witness that the weapon used for assaulting Vimalbai was totally different from the one which is stated to have been recovered. At the cost of repetition, it is to be borne in mind that the eye-witness was not shown the weapon recovered in the course of investigation. There is no explanation forthcoming from prosecution as to what prevented prosecution from showing the said weapon to the witness Kishor when he was in the witness box. In case the prosecution had forgotten to show the said weapon to Kishor at the time when he was in the witness box, then why no attempt was made even thereafter to recall the witness with the permission of the Court to get the weapon identified. Whether, ultimately, permission could have been given or not by the Court is totally a different issue, but there is no explanation for failure on the part of prosecution in that regard. These are not mere simple lapses or irregularities. These goes to the root of the case. It is absolutely necessary for prosecution to establish that the weapon which is said to have been recovered at the instance of the accused was the one which was used for committing the offence and if no link is established, irrelevant and inconsistent answers given by the accused cannot be of any help to prosecution to claim that the same would establish the missing link in the chain. 38. It was repeatedly argued on behalf of prosecution that the accused has nowhere disputed that he had accompanied the panch witness at the time of recovery and therefore, the statement that he was not taken anywhere is patently false. 38. It was repeatedly argued on behalf of prosecution that the accused has nowhere disputed that he had accompanied the panch witness at the time of recovery and therefore, the statement that he was not taken anywhere is patently false. As already pointed out above, the answer given by the accused, apparently discloses discrepancy in the testimony of the prosecution witnesses and if bearing in mind the same fact, the accused has sought to dispute the testimony of witness Rathod which is contrary to the testimony of panch in respect of location of the well, certainly accused cannot be stated to have taken a false defence in 313 statement merely because he had disputed that he had accompanied the panch witness. The panch witness, as already stated above, has stated in his testimony that they had gone to the place called ""Savarna Fata"", whereas witness Rathod speaks of mile stone No. 11. Certainly, the answer has to be construed as referring to the mile stone No. 11 and not in relation to Savarna Fata. Prosecution cannot try to take benefit of its own mistakes by accusing the accused of giving false answers in 313 statement, in order to contend that the answer establishes the missing link. 39. The very argument on the part of prosecution that the statement establishes the missing link discloses that prosecution is fully conscious about the missing links and instead of trying to point out cogent evidence, if any, on record which can establish the chain, prosecution appears to be trying to shift burden of proof on the accused. In my considered opinion, therefore, no answer in 313 statement given by the appellant can be of any help to prosecution to establish the chain necessary to prove guilt of accused in relation to the offence for which he was charged pertaining to death of Vimalbai and/or throwing of her dead body into the well. 40. It is also to be noted that in a criminal case it is well settled that the burden of proof lies upon prosecution. Mere failure on the part of accused in raising specific defence or even denying the statement of witnesses is not sufficient to contend that prosecution has established its case. The entire evidence has to be analysed in proper perspective. Mere failure on the part of accused in raising specific defence or even denying the statement of witnesses is not sufficient to contend that prosecution has established its case. The entire evidence has to be analysed in proper perspective. The testimony of a particular witness can be shown to be unbelievable even on the basis of any material on record other than his own testimony on record, and nothing prevents the accused from taking benefit of such materials and disclosing the weakness of the prosecution case and therefore, mere failure on the part of the Advocate for the accused even to cross-examine the witnesses in relation to the statements made by the witnesses that by itself cannot benefit prosecution, where the prosecution primarily failed to establish the case against the accused. 41. One cannot afford to forget the time tested rule that acquittal of a guilty person should be preferred to a conviction of an innocent person as has been repeatedly warned by the Apex Court and reiterated in the matter of (Rang Bahadur Singh and others v. State of U.P.)3, 2000(3) Supreme Court Cases 454, wherein it was held that: ""Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal Court cannot afford to deprive liberty to the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."" 42. As rightly submitted by the learned Advocate for the appellant, it is well settled that prosecution has to come up with the true story and when materials on record sufficiently raise doubt about its credibility, it is unsafe to convict the accused for the offence for which he is charged, as well as in the case where two views are possible, the courts have always to lean in favour of the accused. It is not the case that justice is only meant for the accused and not for the accused, but no person can be convicted on mere suspicion howsoever grave it may be and unless there is sufficient proof about his guilt. Indeed, the ruling of the Apex Court in (Raghunath v. State of Haryana and another)4, 2003(1) Supreme Court Cases 398, is very clear in that regard. 43. Indeed, the ruling of the Apex Court in (Raghunath v. State of Haryana and another)4, 2003(1) Supreme Court Cases 398, is very clear in that regard. 43. The Apex Court in Rang Bahadur Singh and others v. State of U.P., 2000(3) Supreme Court Cases 454, had clearly held that: ""When the amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt, certainly, the accused will have to be acquitted of the offence for which he is charged, even though considering the nature of crime it is not a matter of satisfaction for all to conclude of the case by way of acquittal."" It has been further observed therein that: ""We remind ourselves of the time tested rule that acquittal of a guilty person should be preferred to conviction of the innocent person. Unless prosecution establishes guilt of the accused beyond reasonable doubt, conviction cannot be passed on the accused. A Criminal Court cannot afford to deprive liberty to the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."" 44. In other words, unless the Court is satisfied that on analysis of the materials on record that the accused and the accused alone is the real culprit in the matter, it is unsafe to accept the case of prosecution to hang somebody who is innocent. The Apex Court in (Subhash Chand v. State of Rajasthan)5, 2002(1) S.C.C. 702 has ruled that: ""Though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused."" 45. Referring to its earlier decision in (Shankarlal Gyarasilal Dixit v. State of Maharashtra)6, 1981(2) S.C.C. 35 , it was observed by the Apex Court that it had held time and again that between ""may be true"" and ""must be true"" there is a long distance to travel which must be covered by clear, cogent and impeachable evidence by the prosecution before an accused is condemned as a convict. It was observed that: ""The ends, which the administration of criminal justice serves, are not achieved merely by catching hold of the culprit. It was observed that: ""The ends, which the administration of criminal justice serves, are not achieved merely by catching hold of the culprit. The accusation has to be proved to the hilt in a Court of law. The evidence of the Investigating Officer given in the Court should have a rhythm explaining step by step how the investigation proceeded leading to detection of the offender and collection of evidence against him. This is necessary to exclude the likelihood of any innocent having been picked up and branded as a culprit and then the gravity of the offence arousing human sympathy persuading the mind to be carried away by doubtful or dubious circumstances treating them as of ""beyond doubt"" evidentiary value."" 46. It was strenuously argued on behalf of prosecution that whatever discrepancies are there in the testimonies of the witnesses, are of minor nature and therefore, ought to be ignored. Analysis of testimonies done earlier would apparently disclose that the discrepancies are not of minor nature, but they are in relation to the relevant facts and therefore, they cannot be ignored. Reliance was sought to be placed in that regard in the decision of the Apex Court in (Leela Ram (D) through Duli Chand v. State of Haryana and another)7, A.I.R. 1999 S.C. 3717. The Apex Court therein held that, ""there is bound to be some discrepancies between the narrations of different witnesses when they speak on details and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases."" While laying down the general principle of law in relation to the matter of appreciation of evidence and particularly, the testimonies of the witnesses, the Apex Court has reiterated its earlier decision in the matter of (State of U.P. v. M.K. Antony)8, A.I.R. 1985 S.C. 48. The relevant portion of the extract from the decision in M.K. Antony's case reads thus: ""Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."" 47. Indeed, the above observation is the ratio of the said decision. The relevant portion of the extract from the decision in M.K. Antony's case reads thus: ""Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals."" 47. Indeed, the above observation is the ratio of the said decision. The Apex Court has clearly ruled therein that the discrepancies in relation to ""details unrelated to the main incident"" have been stressed as may differ in the testimonies of different witnesses. Nevertheless the witnesses have to confirm the main incident. The ruling of the Apex Court regarding no much value to be attached to the contradictions is accompanied by the warning that ""unless contradictions are of material dimensions"". In other words, the witnesses may differ in relation to details about unrelated or minor incidents while narrating the main incident, but if there are contradictions in the description of the main incident itself, certainly such discrepancy can never be said to be of minor nature or negligible or to be ignored. The discrepancies noted above in the testimonies of Shankarlal, Vasanta and Raghuveer Singh vis a vis that of Kishor on the main incident, therefore, cannot be ignored and in that connection, decision of the Leela Ram's case rather than of being helpful to prosecution, supports the contentions on behalf of the appellant. 48. The Apex Court in (Ashish Batham v. State of M.P.)9, reported in 2002(7) S.C.C. 317 , has reiterated the ruling that mere suspicion howsoever strong cannot take place of legal proof and has ruled that: ""Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between ""may be true"" and ""must be true"" and this basic and golden rule only helps to maintain the vital distinction between ""conjectures"" and ""sure conclusions"" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."" 49. For the reasons stated above, in my considered opinion, prosecution has utterly failed to establish the charge of murder of Vimalbai by the accused-appellant. 50. This, however, does not absolve the accused-appellant from the liability of injuries suffered by Vimalbai on account of assault which was witnessed by Kishor. The doctor has opined that Vimalbai had suffered severe injuries on her head and they have contributed towards death of Vimalbai. However, as already pointed out above, there is no medical evidence available on record to disclose whether any one of the injuries could have contributed towards death of Vimalbai. Being so, there is no material on record to hold Vimalbai having suffered homicidal death amounting to murder at the hands of the accused. The act of the accused can be considered at the most to be rash and negligent act not amounting to murder but an act amounting to homicidal death not amounting to murder punishable under section 304, Part II of I.P.C., in relation to the death of Vimalbai. 51. As regards the charge of murder of Chanda, as already referred to above, the testimony of Kishor (P.W. 3) reveals that he had witnessed the act of assault on Chanda by the appellant and throwing her into the well. 51. As regards the charge of murder of Chanda, as already referred to above, the testimony of Kishor (P.W. 3) reveals that he had witnessed the act of assault on Chanda by the appellant and throwing her into the well. The statement in that regard by the witness reads thus: ""He caught hold hair of Chanda and took her near well situated in the field and there he inflicted tomy blow on her head and thereafter, he threw her into the well."" Undoubtedly, in the case of Chanda also, prosecution had not taken care to get the weapon identified by the said witness nor the other evidence on the record supports the witness as regards identity of the weapon. Nevertheless, the medical evidence clearly discloses that Chanda had suffered severe injuries on account of assault on her by hard substance. This evidence coupled with the evidence of eye-witness Kishor and communication of this incident by Kishor and Sham to Nandalal as stated by Kishor himself and further repetition of such intimation by Kishor and Sham to Nandalal and to others by other witnesses including Raghuveer Singh and Vasanta lends support to the testimony of Kishor in the matter of assault and throwing of Chanda into the well by the accused. My learned brother in this regard has elaborately dealt with the issue and I am in respectful agreement in the findings on the same issue. 52. As regards the charge of murder of Pankaj @ Sunny by throwing him into the well and thereby drowning him to death, apart from the charge itself, there is absolutely no material or evidence on record to establish the same and to link the accused with death of Pankaj. Nodoubt, Kishor had referred to the fact that Pankaj was seen in the house near Vimalbai when he had gone to fetch milk, but, as already seen above, once the accused had come out of the house and had carried Chanda to the well, the entire evidence on the record discloses that the accused was near the well till he came to the factory and there is absolutely no evidence on record to show that the accused had gone back go to the house where Vimalbai was assaulted and where Pankaj was seen standing at the time of assault on Vimalbai. 53. 53. Being so, merely because the medical evidence discloses that Pankaj died due to drowning and that three dead bodies were found in the well and merely because Pankaj was seen standing in the house at the time of assault on Vimalbai, that itself cannot be a justification to link the accused with death of Pankaj. The analysis of evidence on record in relation to Vimalbai also justifies to arrive at a conclusion that prosecution has utterly failed to establish the charge in relation to death of Pankaj and it is not necessary again to discuss the evidence elaborately. 54. For the reasons stated above, I find that the appellant is justified in contending that prosecution has failed to establish the charge in relation to death of Vimalbai and Pankaj. However, there is no substance in the appeal as far as the charge of murder of Chanda is concerned. Hence, the appeal needs to be allowed as far as the charge of murder of Vimalbai and Pankaj is concerned and to be dismissed as far as the conviction in relation to the charge of murder of Chanda is concerned. The appellant is, therefore, entitled to clear acquittal as far as the charge of murder of Pankaj is concerned. As far as death of Vimalbai is concerned, he can at the most be convicted under section 304 Part II of the Indian Penal Code. As far as conviction on the charge of murder of Chanda is concerned, it needs no interference. Per BRAHME P.S., J.:---This case is a dismal story of an ill-starred woman who had to meet a cruel death at the hands of the appellant/accused, who had clandestine illicit relations with her. A gory episode is narrated in this case, the gravement of which is a grisly perpetrated murders of the said married woman Vimalbai w/o, Vasant Deshmukh and her children Chanda and Sunny @ Pankaj. 2. The learned Additional Sessions Judge, Khamgaon in Sessions Trial No. 28 of 2002, by the judgment and order passed on 23rd December, 2002, convicted the appellant for the offences under sections 302 and 201 of the Indian Penal Code and sentenced to extreme penalty of death subject to confirmation of the High Court and to pay a fine of Rs. 1,000/- each on both counts in default to undergo further rigorous imprisonment of six months each. 3. 1,000/- each on both counts in default to undergo further rigorous imprisonment of six months each. 3. The prosecution case, in brief, is stated thus:--- The victim Vimalbai and her two children Chanda and Pankaj, who are also the victims, was living with her husband Vasanta Deshmukh (P.W. 15) in the field of Ramchandra Joshi (P.W. 2). The said field is situated within the revenue limits of Shegaon. There is one factory namely Ganesh Tiles, so also, two Dal mills near the field. The witness Shankarlal Yadav (P.W. 5), who was a labour contractor, was working in the factory and Kishor Raghuveer Singh (P.W. 3), Sham, Nandalal, Raghuveer Singh (P.W. 12) were the labourers working in the factory under the contractorship of witness Shankarlal. The appellant-accused Manohar Singh, as stated by him in his defence, was working in the Dal mill. He used to go to the field, where Vasanta Deshmukh was living, to assist him in his work. He had clandestine illicit relations with the victim Vimalbai. 4. The incident which gave rise to this prosecution against the appellant took place in the morning on 23rd February, 2002 in the field. The witness Vasant Deshmukh had gone to Shegaon on his bicycle to supply buffalo milk as usual. The witness Kishor (P.W. 3) accompanied by Sham, had gone to the house of Vasanta to fetch buffalo milk. The victim Vimalbai, who was in the house, gave them buffalo milk. At that time, these two persons, while they were about to leave the field, they saw quarrel going on between the appellant and Vimalbai and in that the appellant was abusing her. When they were about to proceed towards their house, they saw the accused assaulting Vimalbai giving a blow with a chisel on her head and as soon as Vimalbai was hit on her head, she fell down. That time, her daughter Chanda, who was there, rushed towards Vimalbai to save her from further beating and assault by the appellant. She also shouted for help uttering the words ^^ekek] ekek] ekÖ;k vkÃyk okpok^^. The appellant suddenly rushed towards Chanda and caught hold her by her hair and brought her near the well situated in the field and then he inflicted a blow by the chisel on her head and then threw her in the well. The appellant told Kishor and Sham to leave the place. 5. The appellant suddenly rushed towards Chanda and caught hold her by her hair and brought her near the well situated in the field and then he inflicted a blow by the chisel on her head and then threw her in the well. The appellant told Kishor and Sham to leave the place. 5. Kishor and Sham, frightened as they were, went to the factory and disclosed to Nandalal as to what had happened in the field which they had witnessed. Nandalal then told about this incident to Santosh, Mohan, Kaccharu and Shankarlal and all of them came to the field. That time, they noticed that the accused was there holding a big stone in his hand. It is alleged by the prosecution and in particular the witness Kishor, as stated in his evidence, that when they went to the field the accused prohibited them from further entering the field and threatened them saying, ""If you come forward, you would be killed"". 6. It was about 9.00 a.m. on that day the accused came to the factory and threatened Shankarlal Yadav (P.W. 5) saying that whatever they had seen should not be disclosed to anybody otherwise he would kill them. Shankarlal asked the accused to leave the factory. At about 11.00 a.m. on that day, Vasanta Deshmukh (P.W. 15) returned to the field and when he gave call to his wife, nobody responded. He could not see his wife Vimalbai and children in the field. The labourers including Shankarlal told Vasanta that the appellant has done to death Vimalbai and children Chanda and Pankaj and that they were thrown into the well. Vasanta immediately went to his brother's house and returned to the field along with Latabai (P.W. 7), his sister-in-law to whom he disclosed the fact that the accused has killed his wife and children and thrown them into the well. It so happened that when they came to the field they saw the accused coming by the way and when Vasanta asked him as to the incident of killing his wife and children, the accused denied and that is how Vasanta took the accused to the factory where the labourers were. It so happened that when they came to the field they saw the accused coming by the way and when Vasanta asked him as to the incident of killing his wife and children, the accused denied and that is how Vasanta took the accused to the factory where the labourers were. In the factory, when in fact the accused was to be confronted, he himself asked Shankarlal as to where they had seen him killing Vimalbai and her children, that time Shankarlal told that they would give statement before the police about the same. 7. A.P.I. Turakmane (P.W. 16) attached to Police Station, Shegaon, who was incharge of the said Police Station, on 24th February, 2002 at about 10.10 a.m., received one unknown telephone call informing that, in the field of Shankarlal Dhanukar, in the well, three dead bodies were floating. He made an entry to that effect in the station diary vide entry No. 17 and immediately proceeded towards the field along with his staff. After reaching the field, three dead bodies were taken out from the well. Vasanta Deshmukh identified the dead bodies as that of Vimalbai, Chanda and Pankaj. A.S.I. Turakmane, on the basis of that, having recovered the dead bodies from the well, lodged report against unknown person for the offences under sections 302 and 201 of the Indian Penal Code. On that report, the offence was registered vide Crime No. 28 of 2002 at about 7.00 p.m. in the Police Station, Shegaon. As it was a crime of triple murder, A.P.I. Turakmane handed over the investigation to S.D.P.O. Mr. U.D. Rathod (P.W. 17). He took up the investigation in the matter. F.I.R. inquest panchanama, spot panchanama and other concerned material was handed over to Mr. Rathod by A.P.I. Turakmane. He recorded the statements of Labourers whose names were disclosed in the course of inquiry. The dead bodies were sent to the Medical Officer for conducting post mortem. The appellant was arrested in the night on 24-2-2002. In the course of investigation, a chisel came to be seized in pursuance of the statement made by the appellant while in the custody, so also, his clothes. The property that came to be seized in the course of investigation was sent to the Chemical Analyser for analysis. The appellant was arrested in the night on 24-2-2002. In the course of investigation, a chisel came to be seized in pursuance of the statement made by the appellant while in the custody, so also, his clothes. The property that came to be seized in the course of investigation was sent to the Chemical Analyser for analysis. After completing the investigation, the charge-sheet was filed before the Judicial Magistrate, First Class, Shegaon, who in turn, committed the case to the Court of Sessions, Khamgaon. 8. Before the Sessions Court, the charge for the offence punishable under sections 302 and 201 of the Indian Penal Code came to be framed vide Exhibit 7. The accused pleaded not guilty and claimed to be tried. Prosecution examined in all seventeen witnesses including Kishor (P.W. 3), Shankarlal (P.W. 5), Dr. Pandit (P.W. 13) who conducted post mortem, Latabai (P.W. 9), Vasanta (P.W. 15) and police authorities including A.P.I. Turakmane (P.W. 16) and S.D.P.O. Uttamrao Rathod (P.W. 17) who carried out investigation in the matter and filed charge-sheet. 9. The accused was examined under section 313 of the Code of Criminal Procedure after prosecution led evidence. I have already stated that the accused denied the charge and claimed to be tried. But, at this stage, it is appropriate to note as to the replies given by the accused to the questions which were put to him in his examination under section 313 of Cri.P.C. To majority of the question which were put to him, his reply was ""It is false."" So far as rest of the question that were put to him, his reply was ""I do not know"". The appellant denied to lead defence evidence nor he examined himself on oath. His answer to question No. 44 is ""I am working in Maroti Dal Mill which is situated on No. 1 and Ganesh factory on No. 3. One day Shankarlal worker from Ganesh factory demanded me my bicycle. I refused to give it. On that count there was exchange of words between us. That time Shankarlal threatened me to see. Since then they are not behaving properly with me"". 10. The learned Judge, at the trial, on taking into consideration the evidence of witnesses, more particularly that of Kishor, Vasanta, Latabai, Shankarlal and that of Dr. I refused to give it. On that count there was exchange of words between us. That time Shankarlal threatened me to see. Since then they are not behaving properly with me"". 10. The learned Judge, at the trial, on taking into consideration the evidence of witnesses, more particularly that of Kishor, Vasanta, Latabai, Shankarlal and that of Dr. Pandit came to the conclusion that Vimalbai, her children Chanda and Pankaj died homicidal death and that the accused-appellant was the author of the crime. Consequent upon these findings, the learned Judge convicted the appellant and also awarded sentence as stated above. 11. Mr. Joshi, the learned Counsel appearing for the appellant, in the first place, submitted that the trial Court has committed an error in placing reliance on the evidence of witness Kishor. He submitted that prosecution has intentionally kept back the material evidence of Nandalal and Sham. Their evidence was relevant in the sense that Sham was the person who had accompanied the witness Kishor to the field for collecting buffalo milk. Therefore, his account as to the incident that took place would have been that of an eye-witness account lending assurance to the evidence of witness Kishor. So far as Nandalal is concerned, his evidence would have been of immense relevance as, according to prosecution witnesses Kishor and Sham, after they went to the factory, they disclosed about the incident to Nandalal, who in turn, divulged that information about the incident to Shankarlal. So, according to the learned Counsel, due to absence of evidence of these two persons, in the first place, there is paucity of evidence and its significance in the background of apparent inconsistency in the evidence of witness Kishor and that is more fortified when, even according to prosecution, the case against the accused hinges on the solitary evidence of witness Kishor, who claims to be an eye-witness to the incident. 12. The learned Counsel pointed out that there is disparity so far as the recording of statement of witness Kishor by the Investigating Officer is concerned, as the recording shows that his statement was recorded on 24th of February, 2002. But the witnesses have disowned this fact. 12. The learned Counsel pointed out that there is disparity so far as the recording of statement of witness Kishor by the Investigating Officer is concerned, as the recording shows that his statement was recorded on 24th of February, 2002. But the witnesses have disowned this fact. What is significant and material according to the learned Counsel is that what is stated by the witness Kishor before the Court in his evidence is not at all reflecting in the report which the Investigating Officer first gave on 25th February, 2002 while seeking police custody remand of the accused. In substance, the learned Counsel has submitted that, actually, recording the statement of witness Kishor on 24th February, 2002 has not been brought on the record; that material has been suppressed and it has direct consequence on disparity in the narration that was in the report submitted by the Investigating Officer for asking police custody remand of the accused. He also pointed out that even when the police custody remand was asked for, what was alleged against the accused was the only suspicion when the Investigating Officer was fully aware from the statement of witness Kishor as to actual involvement of the accused. What is stated by witness Kishor before the Court is not reflected in the report. If that is so, the learned Counsel submitted with emphasis that absence of corroboration to the evidence of witness Kishor because of prosecution not examining either Sham or Nandalal, goes to the root of the main fabric of the testimony of witness Kishor and the prosecution case against the accused becomes doubtful. The learned Counsel also pointed out the disparity between the evidence of Vasanta and Latabai. So far as the witness Vasanta is concerned, the learned Counsel made much about his conduct in reacting when the labourers, on the day when the offence took place, informed him that the accused has killed his wife and children and he has thrown them into the well. It is submitted that Vasanta remained stoic; he did not go to the Police Station; even his statement was not recorded by the police. When he was informed by the labourers that the accused killed his wife and children, he expressed that he did not believe. It was most incongruous and it is submitted that this itself is sufficient to discard the testimony of witness Vasanta. When he was informed by the labourers that the accused killed his wife and children, he expressed that he did not believe. It was most incongruous and it is submitted that this itself is sufficient to discard the testimony of witness Vasanta. The learned Counsel submitted that even taking into consideration the evidence of witness Kishor as it is, it is not proved by prosecution beyond reasonable doubt that the accused had his hand in committing murder of Vimalbai and Pankaj as there is no evidence on record to show that Vimalbai was done to death by assaulting her by the accused and so far as Pankaj is concerned, there is no evidence to show that the accused either assaulted him or threw him into the well. The learned Counsel submitted that prosecution has utterly failed to establish that the accused committed murders of three persons. The trial Court has not appreciated the evidence in correct prospective and therefore, the learned Counsel has urged that the appeal be allowed and the appellant be acquitted. 13. Mr. Loney, the learned A.P.P., submitted that there is no inconsistency or disparity so far as evidence of witness Kishor is concerned. According to him the evidence of witness Kishor is to be considered in the background of evidence of other witnesses and more particularly, the witnesses Shankarlal, Lata and Vasanta. The fact that the witness Kishor has stated about presence of the accused at the time and place when the incident took place has not been specifically denied by defence and other witnesses Shankarlal, Vasanta and Latabai in their evidence have fully corroborated as to what the witness Kishor has stated. The learned A.P.P. submitted that there may be disparity so far as the time of recording of statement of witness by Investigating Officer is concerned. But, that does not by itself cast any doubt as to veracity of witness Kishor and his evidence before the Court. As regards the disparity that has crept in having regard to the narration to the report by Investigating Officer Mr. Rathod asking for police custody of the accused on 25th February, 2002, it is submitted that it was narration on the part of the Investigating Officer as to what information was collected by him while making inquiry with labourers and that too, after he took over investigation in the matter. Rathod asking for police custody of the accused on 25th February, 2002, it is submitted that it was narration on the part of the Investigating Officer as to what information was collected by him while making inquiry with labourers and that too, after he took over investigation in the matter. It does not bring out any infirmity in the prosecution case. He also submitted that non-examination of Nandalal and Sham by itself is not sufficient to come to the conclusion that prosecution has failed to putforth true story or that prosecution has suppressed the material facts by keeping behind these two persons. It is submitted that the evidence of witness Kishor is by all means and also as supported by other evidence on record, is of eye-witness account of the incident. The disparities pointed out by the defence nowhere has shaken credibility of the witness. He is a witness on truth and the basic thing that we have to borne in mind is that homicidal death of the victim at the time and place alleged is not at all disputed by the defence. The learned A.P.P. further emphasized by saying that, admittedly, dead bodies were found in the well and consequently, the same were taken out from the well. Presence of the accused at the relevant time has been established by evidence on the record. In the course of conversation, when the accused went to the factory, he disclosed by uttering the words ^^fruks dks dqos esa lqyk fn;k^^coupled with the fact that the accused threatened Kishor, so also, other labourers who had accompanied later on with Shankarlal to the field where the accused was, is a circumstance clinchingly showing complicity of the accused in commission of the crime. It is in this context that no reply given by the accused to the questions put to him assumes importance. At the same time, as it is rightly put by the learned A.P.P. as balatant denial is itself a conduct which can be taken into consideration as supplying the missing link in the background of presence of the accused at the time when the incident took place, justifies conclusions drawn by the trial Court Judge in holding the appellant guilty for the offence. The learned A.P.P., while making this submission, tried to qualify the factum of presence of the accused in the field at the time when the incident took place as a circumstance of last seen which is said to be mitigating against the accused. 14. Before I embark upon the submissions of the learned Counsel for appreciation of the evidence in this case, as it is mandatory even for the Appellate Court, I think it is appropriate to refer to the cases on which reliance has been placed by the learned Counsel for the parties. The Apex Court in Leela Ram (D) through Duli Chand v. State of Haryana and another, A.I.R. 1999 S.C. 3717, while dealing with the appeal against acquittal wherein question of effect of irregularities in the investigation was involved, observed ""Referring to the observations pertaining to the investigation by investigating agency, that it is now well settled principle that any irregularity or even an illegality during the investigation ought not to be treated as a ground to reject the prosecution case."" It is further observed that, ""High Court is within its jurisdiction being the first Appellate Court to reappraise the evidence, but the discrepancies found in ocular account of two witnesses unless they are so vital, cannot affect credibility of the evidence of the witnesses. There is bound to be some discrepancies between narration of different witnesses when they speak of details, and unless the contradictions are of a material dimensions, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye- witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence"". 15. The Apex Court in the case of Raghunath v. State of Haryana and another, reported in 2003(1) S.C.C. 398 , referring to the inconsistencies and contradictions found in respect of material facts found in the prosecution case which render prosecution case unreliable and unbelievable, observed that, ""prosecution has suppressed the material facts and failed to establish its case beyond reasonable doubt and when the defence version is equally possible, the same must be accepted. In the background of this, the Apex Court, in the facts and circumstances of the case, observed that, ""prosecution has not come up with the true story. It has suppressed the facts. Prosecution has failed to establish its case beyond reasonable doubt. It is now well settled principle of law that if two views are possible, one in favour of the accused and the other against him, the view favouring the accused must be accepted. In the case of (Padam Singh v. State of U.P.)10, reported in 2000 Cri.L.J. 489, the Apex Court observed that: ""It is the duty of the Appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be ad judged by the Appellate Court in drawing inference from proved and admitted facts. It must be remembered that the Appellate Court, like the trial Court, has to be satisfied affirmatively that the prosecution case is substantially true and guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial Court. The judicial approach in dealing with the case where an accused is charged for murder under section 302 has to be cautious, circumspect and careful and the High Court, therefore, has to consider the matter carefully and examine all the relevant and material circumstances, before upholding conviction."" 16. Reference is also made to the decision of the Apex Court in the case of Rang Bahadur Singh and others v. State of U.P., 2000(3) S.C.C. 454 . In para 22 of the said judgment, the Apex Court observed that, ""the amount of doubt which the Court would entertain regarding complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction of all concerned. In para 22 of the said judgment, the Apex Court observed that, ""the amount of doubt which the Court would entertain regarding complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction of all concerned. At the same time, we remind ourselves of the time tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes guilt of the accused beyond reasonable doubt, a conviction cannot be passed on the accused. A Criminal Court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits"". 17. Referring to the decision of the Apex Court in Subhash Chand v. State of Rajasthan, reported in 2002(1) S.C.C. 702 , while appreciating the evidence of a child witness examined by the trial Court, the Apex Court observed that: ""Even taking the testimony of a child witness on its face value, no incriminating inference could be drawn against the accused on that basis so as to connect him with the crime. In a case based on the circumstantial evidence, the circumstances from which conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of conclusive nature and consistent only with the hypothesis of the guilt of the accused. It needs no reminder that legally established circumstances and not merely indignation of the Court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof."" 18. It needs no reminder that legally established circumstances and not merely indignation of the Court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof."" 18. In the case of Ashish Batham v. State of M.P., reported in 2002(7) S.C.C. 317 , the Apex Court observed that : ""Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between ""may be true"" and ""must be true"" and this basic and golden rule only helps to maintain the vital distinction between ""conjectures"" and ""sure conclusions"" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."" 19. In the case of (Shivkumar v. Hukum Chand and another)11, reported in 1999(7) S.C.C. 467 , the Apex Court has highlighted the conduct of prosecution case by the public prosecutor and observed that : ""A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle or conceal it. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the Court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle or conceal it. On the contrary, it is the duty of the Public Prosecutor to which it to the fore and make it available to the accused. Even if the defence Counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the Court if it comes to his knowledge. A private Counsel, if allowed a free hand to conduct prosecution, would focus on bringing the case to conviction even if it is not a fit case to be so convicted."" 20. In the case of State of Maharashtra v. Suresh, reported in 1999(7) SCALE 386 , the Apex Court while referring to the false answers offered by the accused while his attention was drawn to the circumstances, observed that: ""The accused could not give any explanation. The false answer offered by the accused renders that circumstance capable of inculpating him. In the facts and circumstances, such false answer would be counted as providing ""a missing link"" for completing the chain."" It is made clear that this observation of the Apex Court is on the basis that presence of the accused at the time of commission of the offence was established on evidence and also there was consistent evidence as to last seen and therefore, it was imperative on the part of the accused to give explanation as to the circumstances or the evidence that was brought on record. It is in this context that the false reply given by the accused was found to be and could be counted as providing ""a missing link"" for completing the chain. 21. Coming to the case before hand, I shall consider first the medical evidence to see whether prosecution has established that the victims died homicidal death. It is the matter of record that Dr. Pandit, who was the then Medical Officer, attached to Saibai Mote Hospital, Shegaon, who, admittedly, carried out autopsy over dead bodies of victims, in the post mortem report Exh. It is the matter of record that Dr. Pandit, who was the then Medical Officer, attached to Saibai Mote Hospital, Shegaon, who, admittedly, carried out autopsy over dead bodies of victims, in the post mortem report Exh. 34 has recorded external as well as internal injuries which he found and in his evidence before the Court he has categorically, in detail, described the injuries which he noticed. In his opinion, external injury Nos. 1 and 2 noted in col. No. 17 which were lacerated wounds over occipital scalp were very serious in nature and were sufficient to cause death. The injuries were ante-mortem in nature. Defence has not disputed the factum of injuries sustained by the victim Vimal. He has categorically stated that death of Vimalbai was not suicidal. Death was homicidal. He has denied the suggestion of defence that the injuries which he noticed could not be possible by one and the same weapon in view of their different size. As regards deceased Chanda, the evidence of Medical Officer shows that she had sustained in all five injuries, external as they are, described in Col. No. 17 of the post mortem report (Exh. 35) and there were three injuries as described in Col. No. 19 of the post mortem report and what is significant is that the first internal injury was fracture of the skull occipital region, as also, second was fracture of the skull right temporal region and there was haematoma and laceration to brain matter in occipital in right temporal region. He has opined that the injury Nos. 1 and 2 were very serious and they were sufficient to cause death in the ordinary course. All the injuries were not self-inflicted. It was not the case of suicidal death. He has opined that death of Chanda was homicidal one. All the injuries were anti-mortem in nature. It is significant to note that the evidence of Dr. Pandit as regards the cause of death and the injuries sustained by Chanda has gone unchallenged. 22. Dr. Pandit, referring to the post mortem in respect of the child Pankaj, in his evidence stated about the external injuries which he noticed and noted in Col. It is significant to note that the evidence of Dr. Pandit as regards the cause of death and the injuries sustained by Chanda has gone unchallenged. 22. Dr. Pandit, referring to the post mortem in respect of the child Pankaj, in his evidence stated about the external injuries which he noticed and noted in Col. No. 17 and he has opined that injury No. 1 which was contusion over frontal scalp was on vital part the said injury may make a person unconscious or semi-conscious and all the injuries, according to him, were anti-mortem in nature and were not self-inflicting. Dr. Pandit, in his evidence, has categorically stated that there was water in both the lungs and respiratory tracks. The cause of death may be drowning as per the injuries mentioned in the post mortem report (Exh. 36). Again, this evidence of the Medical Officer Dr. Pandit relating to the cause of death and the injuries sustained by deceased Pankaj has gone unchallenged. 23. In the earlier part of the judgment, I have referring to the suggestion by defence to a witness in the cross-examination suggesting that the victims died homicidal death as a result of assault on them by some persons. This suggestion has significance of its own as it is no more in dispute or for that there is no controversy regarding the fact that the victims died homicidal death. That apart, on the evidence of Dr. Pandit as has been discussed above, it stands proved beyond reasonable doubt that the victims died homicidal death. In addition to that, it is also not disputed that the dead bodies of the victims were found in the well and the Investigating Officer A.S.I. Turakmane took out the dead bodies and witness Vasanta has identified the dead bodies as that of his wife Vimal and children Chanda and Pankaj. 24. The incident in question has taken place, admittedly, in the morning on 23rd February, 2002 in the field wherein the victims were done to death and their dead bodies were thrown into the well, which is admittedly situated in the field. It is a matter of record that the dead bodies were taken out from the well on 24th February, 2002 i.e. on the next day and A.S.I. Turakmane lodged report in the Police Station on the basis of telephonic message he has received. It is a matter of record that the dead bodies were taken out from the well on 24th February, 2002 i.e. on the next day and A.S.I. Turakmane lodged report in the Police Station on the basis of telephonic message he has received. It is crystal clear that when the report was lodged by A.S.I. Turakmane, the name of culprit was not known and that is why, in the report that was lodged in the Police Station, it has been stated that unknown person has killed the victims. It is a matter of record further and also it is clear from the evidence of witness Vasanta, Latabai, Shankarlal and Kishor that Vasanta was made aware of killing of the victims by the accused. But, nonetheless, the fact remains that Vasanta himself did not go to the police to make report about the murder of his inmates. This lacuna in the conduct of witness Vasanta has been said to be derogatory to the evidence of witness Kishor, as also, that of Shankarlal and Lata. The evidence of witness Vasanta before the Court is, no doubt, very straight forward in the sense that he did not hesitate in stating that he did not believe when the labourers told him that the accused has done to death his wife and children and also they were thrown into the well. In his evidence, he has narrated the facts as to what happened and what he came to know and from whom. His evidence has been tested on the touch stone of the cross-examination by the defence and I have no hesitation in saying that he stood the test and on material particulars, his evidence remained undisturbed. I am aware that the witness Vasanta was not an eye-witness to the incident. He also did not claim to be an eye-witness to the incident. But then, in his evidence, he did state about the labourers having disclosed to him and particularly, the witness Shankarlal Yadav that the accused had assaulted his wife and children and then had thrown them into the well. He did not hesitate in stating that the contractor told him to go to the Police Station and lodge report, but he did not go to the Police Station. Instead of that, he went to the house of his brother. He did not hesitate in stating that the contractor told him to go to the Police Station and lodge report, but he did not go to the Police Station. Instead of that, he went to the house of his brother. The evidence that has come before the Court, undisputedly, goes to show that Vasanta returned from the house of his brother taking with him wife of his brother namely Latabai and wife of other brother namely Saraswatibai and when they were proceedings towards the field, the accused met them and he asked the accused whether he has killed his wife and children and that, after taking oath, the accused replied that he has not done so. Then, he narrated the incident that they had gone to the factory where the accused asked the contractor whether the contractor had seen him while killing his wife and children, on which the contractor told that he would tell whatever he wanted to tell the police and asked the accused to go. This part of evidence of Vasanta has not been challenged at all. His evidence, undoubtedly, goes to show that when the incident has taken place, he was not in the field. His evidence further show that he came to know about the assault and killing of his inmates by the accused when it was disclosed to him by the contractor and labourers, who accompanied him to the field. This fact further strengthens the version of witness Vasanta that he was not in the field or even in the vicinity when the incident has taken place. So, a positive conclusion can be drawn on the basis of the evidence of witness Vasanta that he was not author of the crime and I have stated so with emphasis because in the course of trial some suggestion has been given to the witnesses that victims might have been killed by Vasanta. It is in this context that the conduct exhibited by Vasanta in not reporting the matter to the police has to be understood in correct prospective. It is in this context that the conduct exhibited by Vasanta in not reporting the matter to the police has to be understood in correct prospective. Narration of the knowledge of talk between Vasanta and the contractor Shankarlal, as also, the fact that Vasanta himself having not believed what has been disclosed to him by the contractor Shankarlal that his inmates have been killed by the accused and further he thought it fit to go to the house of his brother and to go back to the field accompanied by Latabai and Saraswatibai, certainly goes to show that Vasanta was a person of timid temperament and in my opinion, his conduct in not reporting the matter to the police cannot be said to be unnatural, much less incongruent. At least, it is not sufficient to out weighs his testimony which otherwise has been found to be credible. 25. There is evidence of witness Kishor (P.W. 3) and he has stated in which circumstances he happened to be at the house of Vasanta in the morning on the day when the incident took place and he has described in his evidence as to what he saw. While narrating the prosecution case in the beginning, I have almost re-produced what the witness Kishor has stated in his evidence before the Court. I am mindful of the fact that witness Kishor is a child witness and it is to be noted that the learned trial Judge has recorded his evidence having regard to the fact that the witness was a child witness. This witness has been cross-examined by the defence at length and I may say that the witness has stood the test of searching cross-examination by the defence. No doubt, there are discrepancies and omissions which have been brought on the record by the defence in his cross-examination, however, as could be seen from the replies given by him. By no stretch of imagination it could be said that the omissions or discrepancies in his evidence are either vital or material so as to discredit his testimony in its entirety. On the other hand, he is found to be a natural witness. He has no reason to tell lies and depose falsely against the appellant. By no stretch of imagination it could be said that the omissions or discrepancies in his evidence are either vital or material so as to discredit his testimony in its entirety. On the other hand, he is found to be a natural witness. He has no reason to tell lies and depose falsely against the appellant. The facts which emerged from his evidence are that the accused was present in the field when he, accompanied by Sham, went to the house of Vasanta for fetching milk. There was quarrel between the accused and Vimalbai and in that quarrel, they were, as stated by witness Kishor, abusing each other. Then, according to him, when they were likely to proceed, the accused inflicted tomy blow on the head of Vimalbai due to which she fell down and at that time, Chanda ran towards them and requested"" ^^ekek] ekek vkÃyk okpok^^. Then accused suddenly caught Chanda by her hair and inflicted tomy blow on her head and then threw her into the well. It has also come in his evidence that they went to Nandalal and told about the entire incident. It is in his evidence that they all came to the field and they saw that the accused was there and he was holding a big stone in his hand and he prohibited them to come forward in the field and also threatened them that if they come, he would kill them. It has also come in his evidence that, later on, the accused himself came to the factory and threatened Shankarlal saying that whatever they had seen, they should not tell to anybody, otherwise he would kill all of them. It has also come in his evidence that, at about 11.00 a.m. Vasanta came there and he searched for his wife and children and then, he himself, Nandalal, Shankarlal and others went to the field and Shankarlal told Vasanta that the accused had thrown his wife and children into the well and they asked him to lodge report. He has also stated about Vasanta coming to the factor at noon at about 3.30 p.m. along with the accused and two ladies and about the conversation that went on between the accused and Shankarlal Yadav. 26. He has also stated about Vasanta coming to the factor at noon at about 3.30 p.m. along with the accused and two ladies and about the conversation that went on between the accused and Shankarlal Yadav. 26. I have already pointed out that what this witness has stated has been corroborated by witness Shankarlal (P.W. 5) on material particulars and particularly, in respect of narration of the incident or disclosure of incident by Kishor to Nandalal, these persons having gone to the field thereafter and the accused having threatened them and also the accused having come to the field giving threats to them and also visit of the accused accompanied by Vasanta and two ladies. There is absolutely no reason to discard the evidence of witness Kishor when his evidence is corroborated by the evidence of witness Vasanta and Raghuveer Singh. Not only that, but as I have stated earlier, nothing has been brought by the defence in the cross-examination of these witnesses to make a dent in their testimonies and at least to doubt their presence at the time and place and also to the narration of events that took place. 27. I would like to refer to the evidence of witness Shankarlal (P.W. 5) and to the extent of disclosure made by him before the Court, wherein he has stated that they saw the accused throwing the foundation of electric motor into the well and that, on seeing them, the accused threatened Kishor and Sham that if they tell anybody about the incident they would be killed. He has also stated that when the accused came to the factory he asked his workers whether they had been anything and asked them not to tell this fact to anybody. What is striking more is the reply given by the accused to the question asked by him as to what had happened. The accused told, ^^fruks dks lqyk fn;k^^. He has also stated about the accused having accompanied Vasanta to the factory and the accused told him that he would sula denga to Vasanta and that time, he asked the accused to go away from the factory. In his evidence, he has further stated about Vasanta having come to the factory along with the accused wherein the conversation took place when he told Vasanta that all of them were thrown into the well by the accused. In his evidence, he has further stated about Vasanta having come to the factory along with the accused wherein the conversation took place when he told Vasanta that all of them were thrown into the well by the accused. At that time, the accused asked him as to who had seen him throwing the victims in the well and at that time, he asked the accused to go away from the factory and that he would tell all these facts to the police. 28. This version of witness Shankarlal strengthens the claim of eye-witness Kishor and also supports the version of witnesses Vasanta and Lata. It is pertinent to note that though this witness has been cross-examined by the defence. It was not even suggested to the witness that he was not present nor the accused was present. A suggestion has been given by the defence to the witness Shankarlal that he had no talks with the accused and that he did not tell that he had slept all the three persons. Therefore, there is reason to accept the version of this witness at least to the extent that Vasanta had been to the factory accompanied by the accused. There is reason to believe in his version when he stated that the accused, when these persons went to the field, threatened them and further when accused came to the factory, he disclosed that all the three persons were killed. All these material facts have been further corroborated by the evidence of witness Latabai. This corroboration by the witnesses lends candid support to the version of child witness Kishor before the Court. There is, therefore, no hesitation in accepting his evidence. 29. The trial Court has also not committed any error in appreciating and accepting the evidence of this witness Kishor. This is the reason why I do not find that the discrepancy that has crept in on account of narration in the report which witness Rathod gave to the Magistrate seeking police custody remand of the accused. I am fully aware of the contents of the report and there is no doubt that what has been stated in the report or what has been deposed by the witness Kishor is not reflected in the report. I am fully aware of the contents of the report and there is no doubt that what has been stated in the report or what has been deposed by the witness Kishor is not reflected in the report. But then, as I have stated earlier, this discrepancy though it may spell out irregularity on the part of the Investigating Officer which reflects on casualness on the part of the Investigating Officer in preparing the report mechanically. That is not sufficient to outweight the intrinsic evidence of the witnesses who have stood the test of cross-examination. There is another reason as to why, in my opinion, no much capital could be made about the discrepancy that has crept in. What has been stated in the report by the Investigating Officer S.D.P.O. Rathod is the narration on the basis of inquiry which he made with the witnesses at night. Therefore, that cannot be read as a disclosure on the part of the witnesses, more particularly the child witness Kishor, about the incident. In view of this, the disparity between the two, does not bring out any infirmity in the prosecution case and much less, it is sufficient to discredit the testimony of witness Kishor. 30. This takes me to consider the incriminating circumstance against the accused as regards recovery of the weapon of assault. The formidably incriminating circumstances against the accused was that the weapon of assault namely chisel (article 13) was recovered at the instance of the accused in pursuance of the statement made by him when he was interrogated by the Investigating Officer Mr. Rathod. This statement which led to discovery of the weapon has been incorporated in the memorandum (Exh. 17) and admissible portion of it reads thus : ""The iron chisel (tomy)....... has been thrown by me into the well having little water and situated in the left side field by just little going ahead."" 31. The factum of above statement or disclosure made by the accused is established through the evidence of witness Alokkumar (P.W. 4) and it is corroborated by Mr. Rathod (P.W. 19) in his evidence before the Court. This disclosure recorded in the memorandum (Exh. 17) is relevant under section 27 of the Indian Evidence Act. The factum of above statement or disclosure made by the accused is established through the evidence of witness Alokkumar (P.W. 4) and it is corroborated by Mr. Rathod (P.W. 19) in his evidence before the Court. This disclosure recorded in the memorandum (Exh. 17) is relevant under section 27 of the Indian Evidence Act. This disclosure is further strengthened by subsequent event of actual recovery of chisel (article 13) which is substantiated by the witnesses in their evidence, so also, seizure memo (Exh. 18). The witness Alokkumar has identified the chisel in his evidence before the Court. 32. Defence has made much about the witness Kishor having referred in his evidence before the Court the weapon of assault as ""Tomy"". It is needless to say that there is substantial difference between to my and chisel. In the seizure memo (Exh. 18), the word ""iron chhani"" is also referred by the word ""tomy"". What is more striking is that in the cross-examination the witness Alokkumar has stated that Article 13 is called as ""Channi"". This is significance because this witness, in his examination-in-chief, has identified the article No. 13 as to my. Therefore, it is clear that the article 13 has been wrongly described at some places as tomy by the police as well as the witnesses. Therefore, accepting that there is incorrect description of the weapon, no infirmity could be found in the evidence of witness Kishor. At least, this disparity referring the weapon as tomy in his evidence, is not sufficient to discredit the testimony of witness Kishor. It is crystal clear from the evidence that the witnesses as well as Investigating Officer Rathod did understand and confirm also that the weapon (article 13) as Channi @ Chisel. 33. So far as the accused is concerned, when this incriminating circumstance was put to him in his statement under section 313 of the Code of Criminal Procedure and more particularly, regarding disclosure made by him and referring of the weapon consequent upon that disclosure, his reply was in the negative. When the factum or recovery of the weapon has been established, three possibilities could be countenanced. One is that the accused himself would have concealed it. Second is that he would have seen somebody else concealing it and the third is that he would have been told by another person that it was concealed by him. When the factum or recovery of the weapon has been established, three possibilities could be countenanced. One is that the accused himself would have concealed it. Second is that he would have seen somebody else concealing it and the third is that he would have been told by another person that it was concealed by him. But, if the accused declines to tell the criminal Court that his knowledge about concealment was on account of one of the last two possibilities, the criminal Court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, presumption is well justified course to be adopted by criminal Court that concealment was made by himself. Such a interpretation is not inconsistent with the principle embodied in section 27 of the Indian Evidence Act. 34. The case in hand is on stronger footing to impute the knowledge on the part of the accused as to the weapon of assault that came to be recovered at his instance in pursuance of the statement made by him. I have already pointed out that the evidence on record clinchingly establishes that the accused made disclosure and in pursuance of that, the weapon has been recovered. In addition to that, on the evidence on record, it has been abundantly shown that the weapon i.e. article 13 was the weapon of assault. It is in this background that authorship of concealment of the weapon of assault with the accused is incriminating circumstance in this case. 35. It is true that prosecution remains satisfied with the evidence of witness Kishor who has given eye-witness account of the matter. Even, according to the case of prosecution, when Kishor witnessed the incident, one person by name Sham was with him and both of them returned to the factory and disclosed about the incident to Nandalal, who, later on, told about the incident to witness Shankarlal. In this sequence, the evidence of Nandalal and Sham was relevant. But, for the reasons best known to prosecution, these two persons were not examined as witnesses before the Court. In this sequence, the evidence of Nandalal and Sham was relevant. But, for the reasons best known to prosecution, these two persons were not examined as witnesses before the Court. The learned Counsel for the appellant has made much of this omission on the part of the prosecution and it is vehemently submitted that this itself rings out infirmity in the prosecution case and that is much more so when there are discrepancies in the evidence of solitary witness Kishor. 36. I do not think that the omission, though very serious as it appears on the part of prosecution in not examining Sham and Nandalal, has any effect to the extent of outweighing the evidence of witness Kishor and other evidence of witnesses Vasanta, Shankarlal and Raghuveer Singh. It is, no doubt, true that had prosecution examined these two persons as witnesses, the prosecution case would have been further strengthened lending assurance to the evidence of witness Kishor. But, merely because these witnesses are not examined by prosecution, there is no reason to cast any doubt on the prosecution case. In this context, the evidence of witness Kishor is of significance and what has been stated by him has been corroborated by the evidence of witness Vasanta, Latabai, Raghuveer Singh and Shankarlal. It is significant to note that the witness Shankarlal has categorically stated in his evidence that Kishor and Sham returned to the field and disclosed about the incident to Nandalal, who, in turn, met him in the factory and disclosed about the incident which Kishor and Sham had witnesses. Had there been nothing in the evidence of prosecution witnesses so far examined, in that case absence of evidence of Sham and Nandalal would have been very fatal to the prosecution. There is another reason in my opinion, this non-examination of witnesses Nandalal and Sham does not bring about any infirmity and it is the state and quality of evidence of witnesses Kishor, Shankarlal, Vasanta, Latabai and Raghuveer Singh. It is very significant to note that narration of the events, as disclosed by these witnesses, so natural and consistent that even defence is not in a position to carve out any infirmity. These witnesses have no reason to depose against the accused. So far as presence of witness is concerned, there is no specific challenge by the defence. It is very significant to note that narration of the events, as disclosed by these witnesses, so natural and consistent that even defence is not in a position to carve out any infirmity. These witnesses have no reason to depose against the accused. So far as presence of witness is concerned, there is no specific challenge by the defence. As stated earlier, their evidence has not been shattered though the witnesses were subjected to scrutiny by the cross-examination of the learned Counsel for the accused. 37. From the evidence of witness Shankarlal, it is brought on record that a) Sham and Kishor told Nandalal that the accused had thrown away Chanda into the well and that Nandalal came running and told that the accused had thrown away Chanda into the well. b) Myself and other workers went to the field and we had seen the accused throwing foundation of electric motor into the well and on seeing us, the accused threatened Kishor and Sham that if they tell about the incident to anybody, he would kill them. c) After an hour, the accused came to the factory and told his workers whether they had seen anything and asked not to tell this fact to anybody. d) When he asked accused as to what happened, he told that he had slept all the three persons i.e. ^^fruks dk lqyk fn;k^^ and he further told that he would sula denga to Vasanta in the evening. e) At about 11.00 a.m. Vasanta came to his house. He told him that he should not search for his wife and children as Thakur murdered all of them and threw them into the well and asked him to lodge report. f) At about 3.30 p.m. Vasanta came along with the accused and two ladies and he told all of them that they were thrown into the well by the accused and at that time, the accused Thakur asked him as to who had seen him throwing them into the well. There is no specific denial by the defence to witness Shankarlal as to what he has stated in his examination-in-chief. That apart, what has been stated as above by witness Shankarlal has been corroborated by witnesses Vasanta, Latabai and Kishor in their evidence. 38. It has come in the evidence of witness Latabai that Vasanta told them that the accused has thrown them into the well. That apart, what has been stated as above by witness Shankarlal has been corroborated by witnesses Vasanta, Latabai and Kishor in their evidence. 38. It has come in the evidence of witness Latabai that Vasanta told them that the accused has thrown them into the well. This statement of Latabai in her evidence that when the accused asked about killing of three persons, he denied the same and he said. ^^ek>s ukao Äsrys rj ,dsdkyk [kykl d:u Vkdhu^^. 39. It has come in the evidence of witness Raghuveer Singh that the accused had held a big stone in his hand and he threatened them when they were proceeding towards the field and when the accused came into the factory, he threatened them and told that they have not seen anything. He has also stated that the contractor, meaning thereby Shankarlal, told as to what had happened. 40. In the earlier part of the judgment, while referring to the medical evidence of Dr. Pandit, he has opined that all the three victims have died homicidal death. So far as Vimalbai is concerned, in the opinion of Dr. Pandit, the cause of death was external two injuries as noted by him, which were sufficient in the ordinary course of nature to cause death. As regards Chanda, her death was on account of the injury she has sustained and more particularly, the injury at the occipital region and the witness Kishor was stated in his evidence that the accused dealt a blow with the chisel on the head of Chanda. He has also stated that the accused having dealt a blow with the chisel on the head of Vimalbai so that evidence of Kishor and medical evidence coupled with the other evidence on record of witnesses Shankarlal, Vasanta,  Latabai, it is established beyond doubt that the accused and the accused alone has committed murders of Vimalbai and Chanda. 41. So far as the victim Pankaj is concerned, the evidence on record is only about his presence at the time when the incident has taken place. There is no direct evidence as to assault on Pankaj and that is because witness Kishor has not stated in his evidence specifically about assault on Pankaj by the accused. 41. So far as the victim Pankaj is concerned, the evidence on record is only about his presence at the time when the incident has taken place. There is no direct evidence as to assault on Pankaj and that is because witness Kishor has not stated in his evidence specifically about assault on Pankaj by the accused. But then, having regard to the sequence of events and other evidence on record, I have no hesitation in saying that the author of killing of Pankaj is no one else than the accused. In order to appreciate this, the sequence of events which have emerged from evidence on record has to be taken into consideration. They are as under :- a) On 23-2-2002 there was quarrel between the accused and Vimalbai at 8.30 a.m. and in that quarrel, the accused assaulted Vimalbai with the Chisel and as a result of that, she fell down. b) When this assault was made on Vimalbai, Kishor and Sham were there and they witnessed it and they saw Chanda who rushed to them saying that ^^ekek] ekek esjh ekWa dks ekj MkysaXks^^- c) At that juncture, the accused caught hold Chand by hair and dealt a blow with the chisel on her head and brought her to the well and pushed her into the well. d) Immediately thereafter, Kishor and Sham went running to the factory and disclosed about what they had seen and then all the labourers returned to the field and they saw the accused standing having a big stone in his hand and threatened them saying that they would be killed if they enter in the field. e) In the morning, at about 9.00 to 9.30 a.m., the accused went to the factory and threatened all the labourers saying that if they had seen anything they should not disclose it to anyone and at that time, he also said. ^^fruks dks dqos esa lqyk fn;k^^- f) At 11.00 a.m. the contractor told Vasanta that Manohar has thrown all the three into the well. g) At about 3.00 p.m. taking the accused with him, Vasanta accompanied by Latabai and Saraswatibai, came to the factory and the accused asked the contractor as to whether anybody has seen his throwing them into the well. 42. It has come in the evidence that when this incident took place in the morning. Vasanta was not in the field. g) At about 3.00 p.m. taking the accused with him, Vasanta accompanied by Latabai and Saraswatibai, came to the factory and the accused asked the contractor as to whether anybody has seen his throwing them into the well. 42. It has come in the evidence that when this incident took place in the morning. Vasanta was not in the field. It has also come on record that after he returned to the field and searched for his wife and children, it was contractor Shankarlal who told him that his wife and children were done to death and thrown into the well by accused Manohar. There is no challenge by the defence to the version of Vasanta and other evidence on record in that regard that in the morning Vasanta was not in the field. However, very surprisingly, a suggestion has been given to Vasanta in his cross-examination by the defence that he himself killed his wife and children. I have already referred to the statement of the accused wherein he has stated that he was involved in this case at the behest of Shankarlal with whom he had enmity. What is surprising is that not a single question is put or any suggestion is given to witness Shankarlal in that regard. All these things, by themselves, are sufficient to establish the guilt of the accused. But these omissions even on the part of the defence in falsely denying the facts is certainly of relevance to lend assistance to the evidence of witnesses, more particularly that of Shankarlal, Kishor and Vasanta. 43. The sequence of events which have been categorically stated earlier, undoubtedly, go to show that it was the accused and the accused alone who killed the third victim namely Pankaj. In this context, I have to make mention of the fact that witness Kishor has not even whisphered about presence of Pankaj at the time of occurrence in the field. But, it is in the cross-examination of defence that his presence has been brought. Sequence of events, first clinchingly goes to show the conduct of the accused. If he was not the author of killing of the victims, why he gave threats immediately when the labourers entered the fields. Why he threatened Kishor and Sham saying that they should not disclose anything whatever they have seen? Why he should disclose labourers that ^^fruks dks lqyk fn;k^^. If he was not the author of killing of the victims, why he gave threats immediately when the labourers entered the fields. Why he threatened Kishor and Sham saying that they should not disclose anything whatever they have seen? Why he should disclose labourers that ^^fruks dks lqyk fn;k^^. How the weapon of assault was then recovered at the instance of the accused. Recovery, on the part of the Investigating Officer at the instance of the accused has implications, as understood, is not as to the factum of chisel but the knowledge on the part of the accused that the weapon is concealed at a particular place. If in pursuance of the statement made by the accused that the weapon is recovered and if it is proved that it was the weapon of assault, then that is an incriminating circumstance. When querry was made to the accused by Vasanta and Latabai as regards the information received from or disclosed by contractor that the accused had killed these three persons, the reaction of the accused was most telling when he said that if he is blamed as accused he would kill every one. In my opinion, this conduct and expression by the accused spells out that of certainty the commission of the crime by the accused. The dead bodies of all the three persons have been found in the well situated in the field. The disclosure made by the accused. ^fruks dks dqos esa lqyk fn;k^ according to me is an extra-judicial confession and it is made in quick succession, has immense value and it militates against innocence of the accused. In my opinion, it is clanging admission of guilt on the part of the accused in respect of killing of all the three persons. 44. So, considering the evidence and the circumstances appearing in this case, I hold that the accused has committed murders of Vimalbai, Chanda and pankaj. The trial Court is absolutely right in its conclusion holding the accused guilty for the offence under section 302 of the Indian Penal Code for committing murders of these three persons. The appeal, therefore, merits no consideration at all. The same deserves to be dismissed. 45. Before parting with the judgment, I would like to refer to some of the infirmities and irregularities on the part of the trial Court as well as investigating machinery. The appeal, therefore, merits no consideration at all. The same deserves to be dismissed. 45. Before parting with the judgment, I would like to refer to some of the infirmities and irregularities on the part of the trial Court as well as investigating machinery. Taking into consideration the gravity of offence, prosecution was required to conduct the matter very diligently. It is in this sense, in my opinion, that prosecution has utterly failed in its duty in not examining Nandalal and Sham as the evidence of these two witnesses was of much assistance to prosecution. I did not find any explanation on the part of prosecution coming through the evidence of Investigating Officer Mr. Rathod as to why these two persons were not made available to the Court. It is prerogative of the witness to state in his evidence before the Court what he thinks. But, in his evidence if his evidence is read, he has stated what the witnesses have stated in their statement which were recorded by him under section 161 of the Code of Criminal Procedure. In this context, he has deposed about what the witness Kishor has stated in his statement recorded by him, as also, by Sham whose statement was recorded by him. At least, I have not understood the propriety of bringing on record in his evidence what the witnesses have stated in their statement recorded under section 161 of the Code of Criminal Procedure. That cannot form part of the evidence. Even the witness whose statement is recorded, cannot make a statement in his evidence before the Court as what he has stated in his statement recorded by the Investigating Officer. It is not permissible to state before the Court in the evidence as to what the witnesses has stated in his statement. Therefore, it is very surprising that Mr. Rathod, who is S.D.P.O., a high ranking officer who carried out investigation and recorded the statements, stated in his evidence before the Court what the witnesses have stated in their statements which he recorded. That is one aspect of the matter. When it comes to the turn of Presiding Officer, who has recorded the evidence, it is very strange to note as to why and how she allowed such evidence to be recorded when it is not permissible under law. That is one aspect of the matter. When it comes to the turn of Presiding Officer, who has recorded the evidence, it is very strange to note as to why and how she allowed such evidence to be recorded when it is not permissible under law. Therefore, though the trial Court has reached to the conclusion correctly after appreciation of evidence, the trial Court equally failed to observe the rules of procedure while evidence of witnesses was recorded. 46. So far as conviction of the appellant for the offence under section 201 of the Indian Penal Code is concerned, considering the fact that the weapon of assault was recovered from the well at the instance of the accused, the trial Court was right in holding the appellant guilty for the offence under section 201 of the Indian Penal Code. ORDER In view of difference of opinion, the matter will have to be placed either before the third Judge or before the larger Bench in terms of section 392 of the Code of Criminal Procedure, 1973. Since the matter involves various questions of law, in our considered opinion, it will be appropriate to place the same before the larger Bench. In view of the appeal being required to be referred to the larger Bench, hearing on the confirmation case stands adjourned. The Registry is, therefore, required to do the needful in the matter, and therefore, place the matter before the Hon'ble the Chief Justice. -----"