Judgment P. V. HARDAS, J. ( 1 ) THE Appellant, who, on the allegations that he had killed his own brother, stands convicted for an offence punishable under Sections 302 and 201 of indian Penal Code and sentenced to imprisonment for life and fine of Rs. 1,000/-, in default R. I. for one year, and R. I. for three years and fine of Rs. 500/-, in default R. I. for 6 months, respectively, by the 1st Ad-hoc additional Sessions Judge, Jalna, by judgment dated 28th March, 2003, in Sessions Case no. 68 of 2002, by this appeal questions the correctness of the conviction and sentence. ( 2 ) SUCH of the facts, as are necessary for the decision of this appeal, can briefly be stated, thus : p. W. 11 P. I. Badag, who was attached to the Ambad Police Station, received a telephone call on 30th January, 2002 at about 9. 00 to 9. 30 p. m. , from acertain municipal councillor named rajput. The said Municipal Councillor is alleged to have conveyed to P. W. 11 P. I. Badag that original Accused Nos. 1 and 2 had committed the murder of deceased Parmeshwar and had buried his dead body. On receipt of this information, P. W. 11 P. I. Badag proceeded to the house of original Accused No. 2, wife of said parmeshwar, and found both the accused present there. Both the accused were brought to the police station and interrogated. Both the accused are alleged to have given information to p. W. 11 P. I. Badag in respect of the place where the dead body was buried. On the next day morning, P. W. 11 Badag requested the Municipal authorities and the Tahsildar to remain present at the time of disinterring the dead body of parmeshwar. At about 10. 20 a. m. , in the presence of P. W. 9 Chunnilal, a Tahsildar and p. W. 4 Shirish, a panch witness. Accused No. 1 is alleged to have made a disclosure memorandum at Exhibit-24 expressing his willingness to point out the place where dead body of deceased parmeshwar was buried. The Memorandum at exhibit-24 was signed by the Tahsildar P. W. 9 chunnilal as well as P. W. 4 Shirish. The Police, panch and the accused proceeded to a house pointed out by Accused No. 1. The Memorandum at exhibit-24 was signed by the Tahsildar P. W. 9 chunnilal as well as P. W. 4 Shirish. The Police, panch and the accused proceeded to a house pointed out by Accused No. 1. The said house was locked and the accused had produced a key and had entered the house. He pointed out the place in the house where the dead body was buried and in the presence of Tahsildar P. W. 9 Chunnilal and the municipal employees the dead body was found. Panchanama, in this behalf, at Exhibit- 37, came to be drawn. Inquest Panchanama at exhibit-27 was drawn in the presence of P. W. 5 sakharam. Scene of the offence Panchanama at Exhibit-42 also came to be drawn in the presence of P. W. 5 Sakharam. Dead body of deceased Parmeshwar was, thereafter, referred for post-mortem examination, which was conducted by P. W. 10 Dr. Rajkumar Gothwal. P. W. 10 Dr. Gothwal noticed the following external injuries: (I) Incised wound on the right foot ankle joint region medical aspect, size of 4 x 2 x 1 cm. skin to muscle deep oblique regular margin, within 7 days caused by hard and sharp object. (II) Incised wound on the skull at right parito temporal region, size of 10 x 2 x 2 cm. Skin to bone deep, red in colour with blood clots seen at the site of wound oblique regular margin edges clear cut, within 7 days and caused by hard and sharp object. (III) Incised wound on right cheek maxillary region extending upto right external ear, size 8 x 4 x 2 cm. red in colour with blood clots seen, edges clear cut, within 7 days, oblique and regular margin, skin to muscle deep, caused by hard and sharp object. (IV) Abrasion on the skull at left side of forehead region, size 4x4 cm. reddish black in colour, oblique irregular, within 7 days and caused by hard and blunt object. (V) Incised wound on the chin below the lower lip size 4x1x1 cm. , red in colour. Transverse regular margin, edges are clear cut, within 7 days, caused by hard and sharp object. (VI) Abrasion on the left shoulder joint region anteriorily, size 6x2 cm. , redish black in colour within crushed formation, oblique irregular, and within 7 days. (VII) Incised wound on the chin, size 4 x 1 x 1 cm. , red in colour. Transverse regular margin, edges are clear cut, within 7 days, caused by hard and sharp object. (VI) Abrasion on the left shoulder joint region anteriorily, size 6x2 cm. , redish black in colour within crushed formation, oblique irregular, and within 7 days. (VII) Incised wound on the chin, size 4 x 1 x 1 cm. , red in colour regular margin with clear cut edges, within 7 days, caused by hard and sharp object. (VIII) Abrasion on the left arm lower part ventral aspect size 2x1 cm. , red in colour, oblique, irregular within 7 days, caused by hard and blunt object. (IX) Incised wound on the left hand palmer aspect, size 8x1x1 cm. red in colour with blood clots seen at the site of wound. Clear cut edges, oblique regular within 7 days, caused by hard and sharp object. (X) Abrasion on the abdomen in the left lumber region size 3x1 cm. , red in colour, oblique irregular, within 7 days, caused by hard and blunt object. (XI) Abrasion on the back at right scapular region extending upto infrascapular region, size 20x 10 cm. , red in colour with crush formation, oblique irregular, within seven days and caused by hard and blunt object. (XII) Abrasion on the back at left infrascapular region size 6x4 cm. , red in colour with crush formation, oblique irregular within 7 days, caused by hard and blunt object. (XIII) Abrasion on the right thigh lateral aspect, size 4x2 cm. , red in colour oblique irregular, within 7 days caused by hard and blunt object. (XIV) Abrasion on the left leg lower part near the ankle joint region, size 2x1 cm. , red in colour, oblique irregular, within 7 days, caused by hard and blunt object. P. W. 10 Dr. Gothwal opined that injury Nos. 1 to 14 were ante-mortem injuries. He also noticed haematoma under the right parietal, right temporal and both frontal regions of scalp. He also noticed fracture of right parietal and right temporal bone with grayish colour, brain matter being exposed. According to him, cause of death was due to cardio respiratory arrest secondary to haemorrhagic shock due to acute head injury with multiple incised wound. The post-mortem report is at Exhibit-15. He also noticed fracture of right parietal and right temporal bone with grayish colour, brain matter being exposed. According to him, cause of death was due to cardio respiratory arrest secondary to haemorrhagic shock due to acute head injury with multiple incised wound. The post-mortem report is at Exhibit-15. A complaint at Exhibit- 43, therefore, was filed by P. W. 11 P. I. Badag and he registered an offence under sections 302, 201 read with 34 of Indian Penal Code. He arrested the accused Nos. 1 and 2 and interrogated them. It appears that both the accused have jointly expressed their willingness to point out the place where their clothes were hidden. Memorandum at Exhibit-45 accordingly came to be drawn in the presence of P. W. 4 shirish. In pursuance to that, vide Exhibit-45, certain clothes came to be seized, which are article Nos. 14 to 17. The seized property was referred to theChemical Analyser and the report of the Chemical Analyser at Exhibit-58 shows that the clothes were found stained with blood of "b" group. No blood, however, was detected on axe, earth and small stones and a full pant. However, human blood was detected on stone, cotton swab, shirt, underwear and petticoat, out of which certain clothes were found stained with blood of "b" group. The blood group of deceased parmeshwar, however, could not be determined. Further to the completion of investigation, a charge-sheet against the Appellant and original accused No. 2 came to be filed. ( 3 ) ON committal of case to the Court of Sessions, trial Judge, vide Exhibit-9, framed a charge against both the accused for offence punishable under Sections 302,201 read with 34 of Indian Penal Code. The accused proclaimed their innocence and claimed to be tried. Prosecution, in support of its case, examined eleven witnesses, out of which P. W. 1 meenakshi, P. W. 2 Jijabai, P. W. 3 Shankar, p. W. 5 Sakharam, P. W. 6 Sanjay, P. W. 7 Natha and P. W. 8 Dhondiram were declared hostile. The only circumstance, on which reliance has been placed by the prosecution for conviction, are the two memorandums relating to the discovery of dead body and discovery of clothes. The trial Judge accepted the evidence of prosecution and convicted the Appellant while acquitting original Accused No. 2, wife of deceased Parmeshwar. The only circumstance, on which reliance has been placed by the prosecution for conviction, are the two memorandums relating to the discovery of dead body and discovery of clothes. The trial Judge accepted the evidence of prosecution and convicted the Appellant while acquitting original Accused No. 2, wife of deceased Parmeshwar. ( 4 ) IN order to appreciate the submissions advanced before us by Mr. Chatterji, learned counsel appearing on behalf of the Appellant, it would be useful to refer to the evidence of P. W. 4 Shirish, P. W. 9 Chunnilal and P. W. 11 P. I. Badag. P. W. 11 P. I. Badag states that on receipt of a telephone call from the Municipal Councillor, he brought the accused to the police station and on interrogation he learnt from both the accused the place where the dead body was buried. On the next day, at about 10. 20 a. m. the accused had made the disclosure memorandum at Exhibit-24. Earlier to that, a letter had been sent to the Tahsildar asking him to remain present and the Municipal authorities were also informed. In cross-examination, he has admitted that the houses of accused No. 1 and deceased Parmeshwar are separate. It is further admitted that the house from where dead body was recovered, was owned by changdeo Dhanade and he had given the lock and key to Changdeo Dhanade. The memorandum does not bear the signature of the Panch witnesses and the recovery panchanama at Exhibit-37 does not bear the signature of the accused. P. W. 4 Shirish, a panch-witness, states that he had been called by the police to the police station. P. W. 9 chunnilal Kokani, atahsildar, was also present and in their presence Accused No. 1 had expressed his willingness to show the place where the dead body was buried. According to him, the Accused and Tahsildar had signed on the memorandum. The accused had then taken the police and the witnesses to his house and the police had opened the lock. On the place being pointed out by the Accused, employees of the municipality had dug and the dead body of deceased Parmeshwar was found. The Panchanama at Exhibit-37, thereafter, came to be drawn. In cross-examination, he has admitted that when he reached the police station, the Tahsildar was already present in the police station. On the place being pointed out by the Accused, employees of the municipality had dug and the dead body of deceased Parmeshwar was found. The Panchanama at Exhibit-37, thereafter, came to be drawn. In cross-examination, he has admitted that when he reached the police station, the Tahsildar was already present in the police station. He has further stated that the employees of the municipal council were already present at the spot of the incident. He states that, after the place was pointed out by the Accused, he came out of the room and was not present when actually the digging was done or the dead body was taken out of the pit. He has stated that, the house of Accused No. 1 and deceased are different and he could not state if the parents of the Appellant resided with him. ( 5 ) P. W. 9 Chunnilal Kokani, a tahsildar, states that on 31 st January, 2002 he received a letter at Exhibit-36 from the Police inspector of Ambad. According to him, he went to the police station at about 10. 00 a. m. on 31 st January, 2002. According to him, both the Accused were present in the police station, as well as the two Panchas. Accused No. l then expressed his willingness to point out the place where the dead body of Parmeshwar was buried. He then states about the accused taking the police to a house from where dead body of deceased Parmeshwar was found. In cross-examination, he has admitted that he had received the letter, while he was working in his office, hours of which are from 9. 45 a. m. to 5. 45 p. m. He has denied the suggestion that the said letter was received at 3. 20 p. m. He was confronted with the endorsement at exhibit-36 that he had received the letter at 3. 20 p. m. He has admitted that prior to going to the police station he had an idea where the dead body was buried. He has also stated that he did not receive any other letter apart from letter at Exhibit-36. He has admitted that it was not mentioned in the Panchanama that the lock was opened by the accused. 20 p. m. He has admitted that prior to going to the police station he had an idea where the dead body was buried. He has also stated that he did not receive any other letter apart from letter at Exhibit-36. He has admitted that it was not mentioned in the Panchanama that the lock was opened by the accused. ( 6 ) A brief reference to the evidence of P. W. 6 Sanjay would be material as P. W. 6 sanjay has admitted that the house from where the dead body was found, was of deceased parmeshwar. ( 7 ) MR. Chatterji, learned counsel for the Appellant, has urged before us, and according to us, correctly, that the police had already prior information as to the place where the dead body was buried. Evidence of P. W. 11 P. I. Badagis clear that on the previous evening he had interrogated the Accused and had learnt from them the place where the dead body was buried. This information, which was alleged to have been conveyed by the Accused, was not reduced into writing and the dead body was not discovered pursuant to this information. P. W. 11 P. I. Badag, instead, informed the Tahsildar P. W. 9 Chunnilal kokani and the employees of the municipal council and in their presence made a show of recording the memorandum at Exhibit-24 as if this information was being conveyed by the accused to him, for the first time. We find that the evidence, apart from being replete with various infirmities, also is doubtful whether the accused No. 1 really made the disclosure statement at Exhibit-24. According to P. W. 4 shirish and P. W. 11 P. I. Badag, P. W. 9 Chunnilal kokani was present in the police station when the disclosure statement was made. P. W. 9 chunnilal, however, states that he had received the letter at Exhibit-36 during the office hours and it was in pursuance to this letter that he had gone to the police station. He could not explain the endorsement appearing at Exhibit-36 that he had received the letter at 3. 20 p. m. He has further admitted that, apart from this letter, he had not received any other letter. He could not explain the endorsement appearing at Exhibit-36 that he had received the letter at 3. 20 p. m. He has further admitted that, apart from this letter, he had not received any other letter. If P. W. 4 Shirish and p. W. 11 P. I. Badag are to be believed that P. W. 9 chunnilal Kokani was present, it is extremely doubtful whether the disclosure memorandum was made in the morning, at the time so stated in the memorandum at Exhibit-24. Apart from that, P. W. 9 Chunnilal Kokani has admitted that when he went to the police station, he knew the place where the dead body was buried. If that be the case, since the police had already prior information as to the place where the dead body was buried, the disclosure memorandum at exhibit-24 and the recovery of dead body, pursuant to that memorandum, is wholly inadmissible in evidence. We further find considerable force in the submission of Mr. Chatterji, learned counsel for the Appellant, that there is no evidence that the house belonged to the accused. P. W. 11 P. I. Badag has stated that the house belonged to the father of Appellant and deceased Parmeshwar. P. W. 4 Shirish has stated thatthe house belonged to the Appellant/ accused. Evidence of P. W. 6 Sanjay indicates that it was the house of deceased Parmeshwar. Undisputedly, the Appellant and deceased parmeshwar were residing separately. There is, thus, no cogent and convincing evidence that the house from which the dead body of deceased parmeshwar was recovered, belonged to accused. We find considerable force in the submission of Mr. Chatterji that the evidence in respect of discovery of the clothes also does not inspire confidence. Witnesses have admitted that the clothes came to be recovered from the same house which had not been locked. The house was open and accessible to all. There is no evidence that the house belonged to Appellant/ accused. Moreover, there is no evidence to suggest that the clothes which were recovered in pursuance to the statement of the accused, were the clothes worn by the accused, respectively. ( 8 ) THE trial Judge has not taken into consideration these infirmities and has not appreciated the evidence of the prosecution from that point of view. Moreover, there is no evidence to suggest that the clothes which were recovered in pursuance to the statement of the accused, were the clothes worn by the accused, respectively. ( 8 ) THE trial Judge has not taken into consideration these infirmities and has not appreciated the evidence of the prosecution from that point of view. According to us, since the police had already prior information as to where the dead body was buried, the memorandum in respect of dead body is inadmissible in evidence. We have also found that it is extremely doubtful if the Accused had, in fact, made such a disclosure statement. The evidence of seizure of clothes also does not inspire confidence. There is absolutely no evidence regarding illicit relations of Accused nos. 1 and 2. In view of this, we find that there is hardly any evidence to support the conviction of the Appellant/accused for offence punishable under sections 302 and 201 of Indian penal Code. According to us, the Appellant/ accused is entitled to be given the benefit of doubt. ( 9 ) ACCORDINGLY, Criminal Appeal no. 261 of 2003 is allowed. The conviction and sentence passed on the appellant is hereby quashed and set aside and the Appellant is acquitted of the offences with which he was charged and convicted. Fine, if paid by the appellant, be refunded to the Appellant. Since the Appellant is in jail, he be released forthwith, if not wanted in any other case. Appeal allowed.