Judgment C.L. PANGARKAR, J.:- , Accused appellant was convicted by Adhoc Additional Sessions Judge, Nagpur for having committed an offence punishable under Sections 302 and 201 of Indian Penal Code. He was sentenced to undergo imprisonment for life. Accused appellant, hereinafter shall be referred to as accused. 2. The facts shorn of details are as under: Bebibai the sister of Dilip was married to the accused in the year 1991. After the marriage she went to live at the house of accused at Nurapur. Since the accused did not possess any agricultural land he came in search of an employment at Nagpur. He was engaged as a Poojari in Rammandir at Nagpur. A theft occurred there and, therefore, the accused was required to leave that job and leave the house. Subsequently, Dilip the complainant who is the brother of deceased Bebibai set up a Tea Stall for the accused. The accused ran that tea stall for some time but closed it after words. He thereafter went away to his village. After some years again the complainant Dilip helped the accused in setting up a tea stall at Kalamna. After running that Tea Stall for a month or so, accused closed that tea stall and went away. He had taken away the ornaments of Bebibai since he did not make any money out of business. Since the accused was not earning anything there used to be quarrels between the husband and the wife. Accused had tried to assault the deceased once but was saved by neighbours. Thereafter she came to reside with her brother. Accused expressed his remorse subsequently and both started living together once again separately. The accused was then working in the grocery shop. There also he did not pull on well. He left the service and again went away to his village. Since three months prior to the incident both were living separately. 3. On 25th April, 2002 it is alleged that Bebibai left the house in the morning for cooking food at the house of one Bhagwat. It is also alleged that on her way accused met her and he took her away on the bicycle. He killed her in the forest in Hudkeshwar village and then went to his own village Nurapur. It is alleged that he was shouting there that he had killed his wife which was overheard by Nilimabai. It is also alleged that on her way accused met her and he took her away on the bicycle. He killed her in the forest in Hudkeshwar village and then went to his own village Nurapur. It is alleged that he was shouting there that he had killed his wife which was overheard by Nilimabai. In the meanwhile Dilip had already lodged a report that his sister was missing. When on 28th he came to know that the accused was saying that he had killed his wife he lodged another report with the police. Police went to Nurapur where it was found that the accused was already taken away by Hinganghat police. Accused was questioned at the Hinganghat police station, where he stated that he had killed his wife and has thrown the body in the forest and he would show it. The police party, complainant and relatives along with the accused came to Nagpur. They took search of the dead body in the night but could not find it. It is alleged that on the next day the accused, police party again went in search of dead body. It was found in Hudkeshwar forest. It was in decomposed condition. It was identified by Dilip. Postmortem examination was carried out. It was found that the deceased was done to death with a knife. Before coming to Nagpur police seized from the house of accused blood stained clothes and the knife. Clothes and the knife were sent to Chemical Analyser. After the investigation was over charge-sheet came to be filed. 4. The learned Sessions Judge framed the charge. The accused pleaded not guilty. He raised the defence of total denial. The Sessions Judge upon considering the evidence on record found the accused guilty and sentenced him to imprisonment for life. 5. We have heard the learned counsel for the appellant-accused and the respondent-State. We have also perused the record. 6. The prosecution has examined 11 witnesses in this case but none of them is an eye-witness and the case solely rests on circumstantial evidence. 5. We have heard the learned counsel for the appellant-accused and the respondent-State. We have also perused the record. 6. The prosecution has examined 11 witnesses in this case but none of them is an eye-witness and the case solely rests on circumstantial evidence. The law is well settled by catena of cases that : "The circumstances from which the conclusion of guilt of the accused is to be inferred, should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused." The circumstances upon which the prosecution relies are: i) The deceased being seen last in the company of the accused; ii) Seizure of blood stained clothes and knife on the person of the accused ; iii) Discovery of dead body at the instance of the accused; and iv) Extra judicial confession." 7. Before adverting to the evidence we deem it proper to observe here that it was not disputed that the death of the deceased was homidical, Since that is not so disputed the finding as recorded by the trial Court in that regard needs to be upheld. 8. We now proceed to discuss the evidence in connection with the first circumstances i.e. the evidence of deceased being last seen with the accused. It is undisputed that the accused and the deceased were living separate since 2-3 months prior to the date of incident due to strained relations. Normally, therefore, they were not supposed to be together. P.W.2 Dilip the real brother of the deceased had lodged a report of deceased going missing since morning. The said report Ex.15 was lodged by P.W.2 on 25-4-02, it was lodged at 23-15 hours. P.W.2 Dilip claims in his evidence that P.W.S Mahadeo Lotkar met him in the police station itself after he had lodged report EX.IS. This claim of P.W.2 Dilip has much significance. P.W.S Mahadeo has deposed that on the date of incident at about 9.30 a.m. he was proceeding to the place of his duty and saw accused near Udaynagar Garden and he was sitting there. He also states that accused wished him and he therefore got suspicious since that was the usual way of deceased Bebibai to go to her work. He states that he went some distance away and saw Bebibai coming there and also saw accused accosting Bebibai. He also states that accused wished him and he therefore got suspicious since that was the usual way of deceased Bebibai to go to her work. He states that he went some distance away and saw Bebibai coming there and also saw accused accosting Bebibai. He further states that Bebibai stopped there and then she sat on the carrier of the bicycle and both Bebibai and accused went a towards Hudkeshwar. The witness does not s appear to be truthful. He appears to be a got up witness. There is no reason why he should to know either exact time of Bebibai passing or PI exact way to her place of work. Secondly, he had failed to tell the police while recording his statement that he got suspicious and was waiting there for sometime. This is therefore, a clear improvement. There was no reason for him to be suspicious since Bebibai and accused 4-1 were living separately. The witness claims that of on the same night he went to P.W.2 Dilip at 10 p.m. and told him that he saw Bebibai going as with the accused. While this witness claims to have gone to the house of Dilip, Dilip says that 1e he met Mahadeo at police station. Thus they contradict each other on a material point. Secondly, after Mahadeo had come to police e station and told of seeing Bebibai with accused in the morning, no report to that effect seems to have been lodged or no information seems to have been given to the police by them and there on 25th, Had Mahadeo really brought this to the notice of P,W.2 Dilip of having seen Bebibai with the accused in the morning, Dilip would not have failed to bring this to the notice of the police. The evidence shows that until 28th this was not brought to the notice of the police. P.W.2 Dilip in his evidence says that when Nilimabai came and told of accused shouting of killing his wife Bebibai he went to police station on 28th and lodged another report. The fact that P.W.2 and P.W.7 did not inform the police of Mahadeo seeing deceased with accused on 25th itself, leaves us with no alternative but to hold that the witness is got up one, and cannot be relied on safely. 9. The fact that P.W.2 and P.W.7 did not inform the police of Mahadeo seeing deceased with accused on 25th itself, leaves us with no alternative but to hold that the witness is got up one, and cannot be relied on safely. 9. P.W.5 Bhagwat is the Panch on the seizure of the clothes of the accused and the knife, Ex.32 is the panchanama described as search panchanama of the house of the accused. P.W.5 Bhagwat has stated that they had gone in search of the accused to Nurapur where they came to know that the accused is taken away by Hinganghat police. He states that accused was in Hinganghat police station and when questioned there he told that he would show the clothes and knife kept at the house. He also states that they all went to Nurapur and the accused went inside the house, brought out polythene bag containing clothes and knife and police seized it. The contents show that though the clothes were in the bag, knife was elsewhere and not in the bag. It is alleged that it was on the door. This recovery even if called discovery s doubtful. The panchanama Ex.32 is dated 28-02. Police had sought police custody remand accused on 29-4-02 and had produced the accused before the Magistrate. Remand application dated 29-4-02 is in File 'D'; at page No.10. By this application police custody was sought to recover the blood stained clothes and the knife. It is obvious that till 29th these clothes and knife were not at all recovered. Panchanama Ex.32 dated 28-4-02 therefore, does not appear to be true, hence such document cannot at all be relied upon to either hold that accused discovered the clothes and knife or that they were seized from the house of the accused. The report of the Chemical Analyser had been filed at EX.29. Article 3 and 4 are pant and shirt and Art. 5 are nail clippings and Art.6 is the knife. Although the blood stains are found on them their blood group is shown to be inconclusive. Even the group of blood on the clothes of the deceased at Articles 7, 8 and 9 is inconclusive. Hence we do not have either the blood group of the accused or of the deceased. Although the blood stains are found on them their blood group is shown to be inconclusive. Even the group of blood on the clothes of the deceased at Articles 7, 8 and 9 is inconclusive. Hence we do not have either the blood group of the accused or of the deceased. Hence it cannot be said that the blood found on the clothes of accused matches with the blood group of the deceased. Hence this recovery/ discovery has no significance and no inference against the accused on the basis of this can be drawn. 10. The next circumstance upon which the prosecution relies is the discovery of the dead body alleged to be at the instance of the accused. The learned counsel for the appellant-accused assailed the alleged discovery on three counts : i) There is no proper memorandum; ii) It does not bear signature of the accused; iii) Accused was not in police custody. 11. The prosecution relies only on one document i.e. Ex.35. It appears from the contents of this document that on 28-4-02 police and complainant and others had gone to police station Hinganghat, where accused was detained and was questioned there. It also reveals that accused had told that he would show that place where dead body was lying and accordingly they all went to Hudkeshwar, but it was not found in the night. Again on 29th morning he was questioned and he told that he would show that dead body of Bebibai and that took the police to the place and dead body was found. There is no memorandum prepared by the police. It is expected that the information given by the accused must be taken down in the words of the accused. There is no such memorandum. In Ex.35 many other things are written. Further more this Ex.35 does not bear the signature of the accused. There was no difficulty to obtain the signature of the accused, if he had according to the witnesses volunteered to disclose the information which lead to the discovery of the dead body. The learned counsel for the accused submitted that when such panchanama or memorandum does not bear signature it should be treated as unreliable. He had placed reliance on the case reported in Jackaran Singh Vs. State of Punjab, 1995 Criminal Law Journal 3992. The learned counsel for the accused submitted that when such panchanama or memorandum does not bear signature it should be treated as unreliable. He had placed reliance on the case reported in Jackaran Singh Vs. State of Punjab, 1995 Criminal Law Journal 3992. Their lordships have made the following observations: "So far as the conscious possession of the weapon Ex.M/O/4 is concerned, the disclosure statement, two panch witnesses, Yash Pal and Sukhdeo Singh, ASI, have been examined at the trial and secondly because the disclosure statement does not bear the signatures or the thumb impression of the appellant. Even, the recovery memo of the revolver and the cartridges. EX.P-9/ A which is also attested by Yash Pal and Sukhdeo Singh, ASI does not bear either the signatures or the thumb impression of the accused. The absence of the signatures or the thumb impression of an accused on the disclosure statement recorded under Section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement. According to the defence version the appellant had been arrested during the night intervening 15-16 June, 1984 and not on 23rd June, 1984, as alleged by the prosecution. The statement of P.W.4 Surinder Kumar to the effect that "I had seen the accused in the police station for the first time after about 13-14 days of the occurrence" probabilies the defence version, The prosecution case, that the appellant was arrested on 23-6-1984 and led to the recovery of the revolver and the cartridges pursuant to the disclosure statement, therefore, becomes suspect. We are unable to place any reliance upon the alleged disclosure statement and the recovery of the revolver and consequently the opinion of the Ballistic Expert connecting the empties with Ex.M/O/4 becomes irrelevant. The appellant has denied ownership of the crime revolver and the prosecution has led no evidence to show that the crime weapon belonged to the appellant. There is no other circumstance pressed into aid by the prosecution to connect the appellant with the crime. The prosecution has thus not been able to establish the case against the appellant beyond a reasonable doubt. We, therefore, accept his appeal and set aside the conviction and sentence recorded against him. The appellant is on bail. His bail bonds shall stand discharged." 12. The prosecution has thus not been able to establish the case against the appellant beyond a reasonable doubt. We, therefore, accept his appeal and set aside the conviction and sentence recorded against him. The appellant is on bail. His bail bonds shall stand discharged." 12. Learned APP submitted that in the peculiar circumstances of that case Their Lordships made such observations and those observations cannot be applied to every case. It can be seen that Their Lordships' observations are general and not because of peculiarity of that particular case. We do not find that we can deviate from what has been laid down as a general principle by the Apex Court. This Court also in a recent judgment reported in State of Maharashtra Vs. Ashok s/o. Sukhdeo Raut, 2006 ALL MR (Cri) 1033 held that since the memorandum and seizure did not bear the signature of the accused, the seizure of the sword at the instance of the accused is not full proof. We concur with what has been observed in Ashok Sukhdeo's case. Mr. Patel the learned APP for the State had placed before us a ruling reported in K.M. Ibrahim alias Bava and others etc. Vs. State of Karnataka, 2000 Criminal Law Journal 197. Their Lordships of the Karnataka High Court have tried to distinguish the ruling in Jackran Singh's case reported in 1995 a Criminal Law Journal 3992. With respect we are unable to follow what has been observed by Karnataka High Court in K.M. Ibrahim's case since we have before us the ruling rendered by this Court. We deem it proper to follow the same. The alleged discovery, therefore, is of a doubtful nature. This has to be observed particularly because of the fact that even in respect of recovery of clothes we have seen that although there is a panchanama of seizure on 28th in the application for remand dated 29th it was mentioned that the clothes and the knife are yet to be recovered. The manner of investigation is, therefore, not such which inspires confidence. 13. It was contended that accused was not in police custody, hence on that count the discovery/recovery is invalid. It appears that accused was in custody of police though not formally. It is not necessary that the accused must be in formal police custody while making a disclosure statement. The manner of investigation is, therefore, not such which inspires confidence. 13. It was contended that accused was not in police custody, hence on that count the discovery/recovery is invalid. It appears that accused was in custody of police though not formally. It is not necessary that the accused must be in formal police custody while making a disclosure statement. We find that custody does not mean formal custody but includes any sort of surveillance, restrictions or restraint by police. Accused according to the contents in Ex.32 was under a restraint of police and as such could be said to be in police custody. This would be merely an academic discussion because of the fact that we find that the disclosure statement and recovery is not reliable. 14. Next circumstances relied upon by the prosecution is the extra judicial confession said to have been made to P.W.4 Nilima. She claims that she had gone to village Nurapur on 26th and while going to attend to the nature's call she overheard accused saying that he killed his wife and threw her dead body two miles away from Nagpur. There are too many omissions in her statement. Firstly, she had failed to tell the police that she had gone to Shastabad to attend the marriage and that thereafter she came to Nurapur. She had also failed to tell that the house of accused is behind the house of her relative. She also failed to tell that while going to attend the nature's call she had passed over the house of the accused and at that time she heard so. These material omissions certainly create a doubt, if she had really gone to Nurapur and if she had really gone to answer to the call of the nature at that particular time. Her evidence also does not inspire confidence because according to her she overheard accused saying so on 26th itself. This witness claims to be closely related to Dilip, the complainant as well to deceased. If the accused had really spoken of killing Bebibai on 26th she would certainly not have failed to inform Dilip instantly. She told Dilip of this fact on 28th. Thus she kept quiet for a long time even though she had heard of killing of Bebibai. This conduct of the witness renders her evidence to be unworthy of credit. 15. If the accused had really spoken of killing Bebibai on 26th she would certainly not have failed to inform Dilip instantly. She told Dilip of this fact on 28th. Thus she kept quiet for a long time even though she had heard of killing of Bebibai. This conduct of the witness renders her evidence to be unworthy of credit. 15. The accused and the deceased were living separately since 3 months prior to incident. It is not on record that before parting there was any serious dispute. Hence the accused had no reason to take such a drastic step of eliminating the deceased. Hence motive is also not proved. 16. Since the accused is acquitted of main offence under Section 302 he cannot be convicted of offence under Section 201 of Indian Penal Code. 17. We, therefore, find that the evidence as rendered by the prosecution is neither cogent nor reliable. We find it difficult to concur with the finding of the learned Sessions Judge, as such the appeal deserves to be allowed. 18. We, therefore, allow the appeal and set aside the order of conviction and sentence imposed on the accused. Accordingly we acquit him of offences punishable under Sections 302, 201 of Indian Penal Code. Accused be set at liberty forthwith if not required in any other case.