JUDGEMENT. (Per B.P. Dharmadhikari, J) 1. The present Criminal Appeal is directed against the judgment and order dated 11.10.2002, passed by the 2nd Adhoc Additional Sessions Judge, Nagpur in Sessions Trial No. 165/2002, whereby the appellant is convicted for the offence punishable under section 302 of Indian Penal Code and sentenced to suffer R.I. for life. The appellant is also convicted along with other co-accused Biran for the offence punishable under section 201 read with Section 34 of Indian Penal Code and sentenced to suffer R.I. For one year and to pay fine of Rs. 1000/- each. The sentences are directed to run concurrently. 2. The prosecution case in nut sheet is as under :- The prosecution stated that one Kiran Mendjoge (P.W.1) of village Hingna lodged oral report in Police Station on 16.11.2001 vide Exh.35, alleging that accused no.1 [appellant], was residing in a hut constructed in his agricultural field with his wife [deceased - victim] and son [original accused no.2]. On 15.11.2001 when complainant - Kiran was in his field, Rajesh Giri and 7 to 8 boys inquired from him about some murder which has taken place in that area which he denied, as he had no knowledge of the same. He made enquiry with the appellant and the appellant stated that he too had no knowledge. After 1 ½ hour when accused no.1, 2 & two other persons came to hut of accused no.1 (total 4 persons), he again made enquiry about murder and accused no.1 answered in negative. Complainant made enquiry about wife of the watchman i.e. appellant, but both father and son told him that she had gone to village Shivani i.e. their native place. At about 3.30 P.M., one contractor doing civil work of dam on adjacent river came on cycle and he also made similar enquiry. At that time complainant told him that there existed one empty pit which was covered by hip of sand. On 16.11.2001, when the complainant had taken his cattle's to the river, at that time Manoj son of Dhanraj Patil was grazing she goats. Said Manoj Dhanraj Patil told the complainant that watchman - Pandhre i.e. the present appellant, was filling up pit by stones and sand and when appellant saw Manoj, he went away. On 16.11.2001, when the complainant had taken his cattle's to the river, at that time Manoj son of Dhanraj Patil was grazing she goats. Said Manoj Dhanraj Patil told the complainant that watchman - Pandhre i.e. the present appellant, was filling up pit by stones and sand and when appellant saw Manoj, he went away. 15 minutes thereafter, the appellant came back to his hut and the complainant along with some persons went to his hut and at that time the appellant gave admission and confessed that he committed murder of his wife by name - Gendabai. He further told that he buried her in pit. The complainant then came to police station, Hingna and lodged the oral report in police station. 3. The Police registered offence and arrested the accused. Memorandum (Exh.37), under section 27 of Evidence Act was prepared. Appellant agreed to discover the dead body of his wife which he had buried in the pit and same was discovered by him. Clothes of the deceased were burnt and there were burn injuries on the person of the deceased. He agreed to show the said fuel stick as well as iron pipe by which he had beaten his wife and killed her. Further case of prosecution is that, spot was shown by the accused to the police and police seized fuel stick, iron bar and clothes of the deceased. Dead body was exhumed from the pit and Inquest Panchnama (Exh. 19) was prepared. Dead body was then sent for post mortem. Clothes of the appellant were also seized vide Seizure memo (Exh.41). Weapons seized vide seizure memo Exh.38, were sent to Doctor for his opinion. After receipt of post mortem report, clothes and weapons were also sent to Chemical Analyzer with blood samples of the accused persons. After completing investigation charge sheet was filed before the Judicial Magistrate First Class, who committed the case to the Sessions Court. Charge was framed against the appellant and the same was explained to the accused who pleaded not guilty and claimed to be tried. 4. We have heard Ms. Gaikee, Advocate (Appointed), for the appellant - accused and Mr. T.A. Mirza, learned Additional Public Prosecutor for the respondent - State. 5. Charge was framed against the appellant and the same was explained to the accused who pleaded not guilty and claimed to be tried. 4. We have heard Ms. Gaikee, Advocate (Appointed), for the appellant - accused and Mr. T.A. Mirza, learned Additional Public Prosecutor for the respondent - State. 5. The learned counsel representing the appellant has contended that, there is absolutely no material on record against the appellant and the judgment of trial court is based upon mere conjectures and surmises. She contends that the oral report allegedly lodged by P.W.1- Kiran, has not been exhibited and the facts as stated therein are not at all proved. She contends that the story of the prosecution that the complainant got knowledge because of the alleged murmuring by son of appellant under influence of liquor, is not at all established. She further contends that provisions of Section 27 of Evidence Act are not at all applicable, because even according to the prosecution the fact that body was in the said pit, was known to the complainant as also to P.W.2 his brother and other persons. She has contended that the prosecution failed to prove discovery under section 27 of the Evidence Act. The prosecution also could not prove that the appellant had given any extra judicial confession admissible in law. It is argued that the fuel stick allegedly discovered pursuant to the disclosure statement made by the appellant had no blood stains and hence is not incriminating circumstance. She has further submitted that no blood stains were found on the clothes of the appellant. The prosecution failed to establish and prove requisite chain of circumstances which would rule out innocence and would point to the guilt of the appellant and therefore failed to prove the charge beyond all reasonable doubt. There is no evidence to show that the appellant was last seen together with the deceased just before the occurrence. Prosecution also could not establish the motive. It is therefore, contended by the counsel for the appellant that appreciation of evidence done by the Trial Court is perverse and finding of conviction recorded by the trial Court therefore are not sustainable in law. 6. Prosecution also could not establish the motive. It is therefore, contended by the counsel for the appellant that appreciation of evidence done by the Trial Court is perverse and finding of conviction recorded by the trial Court therefore are not sustainable in law. 6. As against this, learned A.P.P. appearing for State has invited attention to the disclosure statement duly proved on record to contend, that the weapons i.e. fuel stick and iron bar were discovered by the appellant only and even dead body was discovered by him. He argued that the Police Sub Inspector - Haribhau, was examined as P.W. 3 and the oral report vide Exh.35 lodged by complainant has been proved through him. He invites attention to various seizures effected and also to the report of Chemical Analyzer to show that the spot of incidence and also clothes of deceased were found to contain blood stains. He further states that even iron rod was found containing human blood. He invites attention to the story as narrated by P.W. 1 and P.W. 2, to state that though appellant's wife was missing or not seen after 12.11.2001, he did not lodge any report with the police station or take any steps to search her. He contends that on the contrary, the appellant had falsely disclosed to the complainant that his wife [deceased] had gone to Shivani. He further states that weapons, blood stained, burnt clothes of the deceased and dead body of the deceased were discovered by the appellant. It is contended by the learned Additional Public Prosecutor that the circumstances brought on record by the prosecution coupled with discoveries effected under section 27 of the Evidence Act and the conduct of the accused including the false explanation given by the accused would show that the prosecution has succeeded in bringing home the guilt of the accused for the offence charged beyond all reasonable doubt. 7. After hearing both the learned counsel, it is to be noticed that finding of homicidal death recorded by the court below has not been questioned before us at all. Post-mortem report (Exh.54), has been proved by examining Dr. Makrand Vyawahare as P.W. No.6 vide Exh.53. In paragraph no.2 of his deposition he has stated that there were 11 external wounds with 3 internal wounds corresponding to the same. Post-mortem report (Exh.54), has been proved by examining Dr. Makrand Vyawahare as P.W. No.6 vide Exh.53. In paragraph no.2 of his deposition he has stated that there were 11 external wounds with 3 internal wounds corresponding to the same. He has further stated that all injuries were ante-mortem and were sufficient to cause death in ordinary course. During deposition he has stated that the injury mentioned against column no.19 were responsible for death. In his cross examination, he has stated that cause of death was head injury caused to the deceased and said injury cannot be caused by fall on the ground. The injuries specified by him in column no.19 are as under : _ 19. Head. (i) Injuries under the Scalp Under scalp haematoma their nature. over right temporo-partial region and left temporal region. 50 c.c. Blood present brownish black & dry. (ii) Skull Vault and base Linear fracture over right describe fractures, their sites partial region, verticle dimensions, directions etc. 3 cm. Depressed fracture over : right temporal transverse 2 cm. Depressed fracture over left temporal transverse, 1 cm. Blood is present in fracture lines of all fractures. (iii) Brain - The appearance of Meninges torn. External its covering, size, weight and haemotoma over right general condition of the organ partial region. 50 cc blood itself and any abnormality brownish-black, dry. found in its examination to be Sybdural haematoma over carefully noted (Weight M.3 gram right fronto-temporo-partial F. 2.75 grams) region. 30 cc blood brownish black. Brain matter soft and Pulpy." Following external injuries on victim described in column no. 17 of Post Mortem Report also show the viciousness with which she was assaulted:- .17. Surface wounds and injuries: 1) Contused abrasion over upper Their nature, position, dimensions lateral quadrant, over left buttock, (measured) and directions to be of size 3 cm x 2 cm. Brownish black accurately stated - their probable in colour. age and causes to be noted. 2) Three contused abrasion over If bruises to present what is left, upper medial quadrant of the condition of the buttock, 1 cm. Apart of size subcutaneous, tissues ? 2 cm x 1 cm. Each brownish black. (N.B. - When injuries are 3) Contused abrasion over left numerous and cannot be size of back, 1cm. Left from mentioned within the space midline, at the level of L1. Apart of size subcutaneous, tissues ? 2 cm x 1 cm. Each brownish black. (N.B. - When injuries are 3) Contused abrasion over left numerous and cannot be size of back, 1cm. Left from mentioned within the space midline, at the level of L1. Available they should be vertebra of size 3 cm x 3 cm.. Mentioned on a separate paper Brownish black. which should be signed.) 4) Contused abrasion over left side of back, 6 cm left from midline, at the level of T 11 Vertebra of size 4 cm. X 3 cm. Brownish . black. 5) Contused abrasion over midline of spine, extending from T8 to T 10 vertebra of size 10 cm x 5 cm Brownish black. 6) Lacerated wound over right temporal region. 3 cm x 2 cm x bone deep. 7) Contused abrasion over right side of forehead, 2 cm above right eye-brow, 3 cm x 2 cm. Brownish black. 8) Contused abrasion over left cheek. 3 cm. X 2 cm Brownishblack. 9) Contused abrasion over nose. 2 cm. X 1 cm Brownish-black. 10) Contused abrasion over dorsum of left palm. 2 cm. X 1 cm Brownish-black. 11) Contused abrasion over extensor aspect of left wrist, 2 cm. X 1 cm Brownish-black.. In view of this material on record it is apparent that the death of Gendabai, wife of the appellant was homicidal death. 8. The complainant who lodged oral report at Exh.35, with the Police Authorities has been examined as P.W.No.1 on 24.07.2002. He has stated that the incident took place about 3/4 months back and at about 11.30 A.M. Son of the appellant had consumed liquor and was murmuring. He has further stated that he then made enquiry from appellant, whether any murder was committed, which the appellant denied. He further stated that he called neighboring field owners and made enquiry about murder and then took search for half an hour, he further stated that prior to 2 to 3 days, they had seen one pit, but on that day this pit was full of mud. He further stated that the appellant who had gone to attend natures' call in the meanwhile came back to his hut, and was asked about murder, by all of them. The appellant told them that his wife had gone to village Shivani. He further stated that the appellant who had gone to attend natures' call in the meanwhile came back to his hut, and was asked about murder, by all of them. The appellant told them that his wife had gone to village Shivani. He thereafter, stated that they all caught him and handed over to police, as he was intending to run away from the spot. He further states that appellant told them initially that he had told falsehood and further stated that he had committed the offence. He disclosed that the appellant told them that dead body of his wife was in the same pit, which was covered by mud. He has thereafter stated that the police recorded his statement. In cross-examination he has stated that the appellant and his wife were only residing in the house in his field. He also denied suggestion that as appellant was not removing his hut from his field, he was given in custody of police and there was no such incident of murder of Gendabai. From this evidence it is apparent that the oral report lodged by him and reduced into writing vide Exh.35 was not put to him and the said oral report is dated 16.11.2001. 9. P.W.No.2 - Mohan, is brother of P.W.No.1 - Kiran and he has stated that when he was going to his field, he heard discussion about murder. They therefore asked present appellant to show his wife Gendabai and appellant told them that she had gone to Shivani. Accused No 2 (son of present appellant) was murmuring under influence of alcohol that his mother was killed. Upon inquiry, appellant told them that he had not committed any murder and they advised him to lodge report to police station but appellant was afraid of doing so. He stated that appellant told police that he killed Gendabai and buried her in pit with the help of his son. In cross-examination he stated that accused did not tell about murder of his wife to him and then he volunteered that said fact was told by appellant to police in his presence and he heard it. 10. He stated that appellant told police that he killed Gendabai and buried her in pit with the help of his son. In cross-examination he stated that accused did not tell about murder of his wife to him and then he volunteered that said fact was told by appellant to police in his presence and he heard it. 10. P. W. 3 - Haribhau was PSI at Hingna police station and he has stated about the report lodged by P. W. 1 to the effect that one body was lying in the pit and since two days there was talk of murder in their village. He thereafter lodged oral report with police station vide exhibit 35 and he stated that, said report bears his signature and signature of panchas. He also proved F. I. R. exhibit 36 which again bears his signature and signature of P. W. 1/complainant. He arrested accused who gave admission of commission of offence and he therefore prepared memorandum - exhibit 37 in presence of Panchas /witnesses. Accused also told that he concealed dead body in one pit near nalah. Accordingly memorandum Exh.37 was drawn. They thereafter went to that spot along with Panchas/witnesses. and accused, and collected bloodstained earth from the hut, wooden fuel stick from the hearth. They also seized bloodstained clothes of deceased from near Sitaphal (custard apple) tree. He stated that he prepared seizure panchnama - exhibit 38 and identified the articles seized before Court. He has also stated that he prepared memorandum - panchnama vide exhibit 39, panchnama of spot of occurrence at exhibit 40, which is in relation to hut and also the spot from where body was recovered. He has also stated that he seized clothes of present appellant and seizure memo is exhibit 41. He also recorded statement under section 164 Criminal Procedure Code, forwarded wooden fuel stick for opinion to medical officer. In cross-examination he has stated that he arrested accused on 16/11/2001 and dead body was taken under custody and inquest panchnama was prepared on 17/11/2001. However, little later he stated that said arrest was on 17.11.2001. His cross-examination is very short and its other portion consists of suggestions given by the defence which were denied by him. 11. P.W.4- Ravindra and P.W.5 - Shaikh Shabir are Panchas witnesses on memorandum panchnama and seizure panchnama exhibit 37 to exhibit 42 and on inquest exhibit 19. However, little later he stated that said arrest was on 17.11.2001. His cross-examination is very short and its other portion consists of suggestions given by the defence which were denied by him. 11. P.W.4- Ravindra and P.W.5 - Shaikh Shabir are Panchas witnesses on memorandum panchnama and seizure panchnama exhibit 37 to exhibit 42 and on inquest exhibit 19. PW 5 is Executive Magistrate. We will make reference to their evidence little latter. PW 6 is Doctor M. S. Vyavahare who has conducted post-mortem on body of Gendabai on 18/11/2001. We have already made reference to his evidence above. He has stated that iron rod was not sent to him for opinion. He also identified article i.e. one wooden fuel stick on which his opinion was sought and reiterated that injuries sustained by deceased could be caused by it. He also proved Exh.55. In cross-examination he stated that injuries to the deceased could not be caused by a fall. 12. So far as memorandum dated 17.11.2001 (Exh.17) is concerned, the portion which is admissible in evidence is that the appellant has buried the dead body in the pit, saree in the bag and stick near hearth and the accused voluntarily agreed for discovery of the same. The evidence of the prosecution further shows that the appellant discovered these articles, coupled with the dead body of the deceased pursuant to the memorandum statement. It is no doubt true that under section 27 of the Evidence Act, the fact which required to be discovered must be solely within the knowledge of the accused, and no other person should have knowledge about it. However, in the instant case, merely because the fact of dead body of deceased was buried in the pit was disclosed by the appellant to P.W.No.1, on earlier occasion, and therefore, that by itself in our view shall not render the discovery of dead body by the appellant in the peculiar facts and circumstances of the case in admissible in law. However in normal set of circumstances, before the fact is discovered it should not be known to anybody and it is the accused alone who must have knowledge about the place where the article is concealed. However, in the instant case, considering the other material circumstances, brought on record by the prosecution it is difficult to discard the evidence of discovery of dead body by the appellant. 13. However, in the instant case, considering the other material circumstances, brought on record by the prosecution it is difficult to discard the evidence of discovery of dead body by the appellant. 13. Exhibit 38 is the seizure memo witnessed by P.W. Nos. 4 and 5 pertaining to articles seized from hut. Wooden stick article .A1. is about 2.5 feet in length and 3 inches in breadth. The seizure memo states that it was having bloodstains on it. Article .A2. is bloodstained earth and article .A3. is plain earth collected from hut. Article .A4. is a Saree bearing stains of blood, burnt at its middle and torn. Article .A5. is blouse also containing stains of blood on its lower portion. Article .A6. is old bed-sheet having stains of blood and Article .A7. is iron bar with bloodstains on the middle portion. Thus spot of crime, weapon i.e. wooden stick and clothes of deceased are discovered & seized at the instance of accused. Exhibit 40 is panchnama of spot of occurrence separately prepared by P.W. 3. It is in relation to hut and also that of pit, the same being shown by accused appellant. Blood was also seen lying on ground. Yellow coloured Saree and blouse were seen lying at a distance of 20 feet under the bushes of custard apple shrubs on the backside of hut. The bed-sheet was seen lying on northern side. It also mentions that the body of a lady was found lying in the pit. It mentions that inquest panchnama was being separately prepared. The inquest panchnama Exhibit 19 states that body was that of Gendabai wife of the appellant. Recovery panchnama (memorandum) exhibit 39 witnessed by P.W. Nos. 4 and 5. It also mentions that stick was identified by present appellant. It also states that appellant stated that he had thrown the clothes and iron bar on the backside of the house and points out spot where the clothes of deceased were found and recovered at the instance of appellant. Thereafter this document points out how the appellant led the party to the pit. The pit in question was 25 feet deep located in southern corner of a cement bund i.e. dam. It also mentions names of five persons who descended down the pit and removal of earth and finding of a dead body lying north-south in supine condition. Thereafter this document points out how the appellant led the party to the pit. The pit in question was 25 feet deep located in southern corner of a cement bund i.e. dam. It also mentions names of five persons who descended down the pit and removal of earth and finding of a dead body lying north-south in supine condition. All these documents are exhibited and are proved by evidence of P.W. Nos. 4 and 5 as also P.W. 3. PW 5 has also identified fuel stick- article 1,iron rod - article 7, Saree- article 4, blouse - article 5 and bed-sheet (Chadar) - article 6. 14. Report of chemical analyzer exhibit 58-A shows that bloodstained earth collected from hut, torn Saree and blouse of deceased and iron rod were found to have human blood on them. These are Articles 2, 4, 5 and 7. Blood on articles 4 and 5 was found to be of "B" Group while blood found on articles 2 and 7, blood group could not be determined. No blood was detected in the sample of earth, on wooden stick, bed-sheet, shirt and pajama of appellant. 15. Argument of Advocate Gaikee that there is no extrajudicial confession given in this case is required to be accepted because specific admission on these lines is recorded as given by appellant after his arrest by police. But it is to be noticed that P.W.1 has specifically deposed that accused accepted that he has committed offences and earlier statement made by him that his wife had gone to village Shivani was false. PW 1 has also stated that appellant told them that his wife Gendabai was in the same pit which was covered by mud. His version has remained un-shattered in cross examination. Similarly though technically there cannot be any disclosure or discovery of the dead body as appellant had already disclosed it before his arrest to P.W. 1 and some others. But here fact remains that it is he and his son who knew where his dead wife was buried. Learned Advocate for appellant has pointed out that clothes of appellant as also wooden stick (alleged weapon) were found not containing any human blood. However, as already observed above said wooden stick (Article 1) was already in hearth and was used for cooking by appellant till his arrest on 17/11/2001 and therefore it may have lost bloodstains due to burning. Learned Advocate for appellant has pointed out that clothes of appellant as also wooden stick (alleged weapon) were found not containing any human blood. However, as already observed above said wooden stick (Article 1) was already in hearth and was used for cooking by appellant till his arrest on 17/11/2001 and therefore it may have lost bloodstains due to burning. Similarly clothes of accused have been seized in police station after arrest on 17/11/2001 and same may not be containing human blood at that time. Mention of fact of appellant putting sand and stone in pit and his going away from pit after noticing the grazer boy Manoj in its judgment and reliance upon it by trial court also cannot be sustained, but it does not help the appellant at all. Absence of any material to show that son of appellant murmured about murder of his mother under influence of liquor is not of help to appellant in present facts when the other material available on record is sufficient to conclusively establish that appellant is guilty of murder of his wife. 16. Thus above evidence on record shows that appellant and deceased Gendabai were residing together in the hut constructed in field of P.W. 1- Kiran. It also shows that appellant was arrested on 17/11/2001 for committing murder of Gendabai on 12/11/2001 as a result of disclosure of offence by him to PW1 and also accepting that earlier he supplied wrong information about Gendabai having gone to village Shivani. It is appellant who pointed out that body of Gendabai was buried in the pit and said body was accordingly found. The appellant also gave false explanation to PW 1 and others that his wife had gone to Shivani with a view to stop them from making further inquiries. He did not lodge any police report that his wife Gendabai had gone missing. He did not disclose to anybody about death of his wife from 12/11/2001 to 16/11/2001. Had P.W.1 and others not persisted in their enquiries and swallowed story of appellant that his wife had gone to Shivani, he would have succeeded in avoiding detection of murder of Gendabai. Not only he suppressed death of his wife and clandestinely buried her in deep pit to avoid its detection. Even in his section 313 Cr.P.C statement, appellant has not given any explanation in this regard. Not only he suppressed death of his wife and clandestinely buried her in deep pit to avoid its detection. Even in his section 313 Cr.P.C statement, appellant has not given any explanation in this regard. The spot of crime was also pointed out by appellant and it is established to be within his hut. Prosecution has proved that earth in hut was stained with human blood. The weapons used in crime i.e. wooden stick and iron rod had bloodstains were procured by prosecution at the instance of appellant. Wooden stick was in hearth in hut while iron rod was thrown away by him behind his hut. Clothes of Gendabai were also thrown away by accused. Torn burnt Saree and blouse of deceased was having bloodstains. Saree obviously got burnt because of beating by burning fuel stick. Article 7 i.e. iron rod is also 31 inches in length and 2 inches in thickness. This evidence coupled with medical evidence conclusively connects appellant with crime and proves the charge of murder beyond reasonable doubt. It is settled law that in such cases, chain of circumstantial evidence has to be so comprehensive and complete as not to leave any doubt about innocence of appellant and this requirement is met here. 17. We now proceed to consider cases cited by learned counsel for appellant. (2003) 9 SCC 67 Anil Kumar Singh vs State of Bihar is the judgment of Hon'ble Apex Court in which Hon'ble Apex Court has mentioned relevant consideration where conviction can be based on circumstantial evidence. The requirement is of establishing each and every piece of incriminating circumstance by reliable and clinching evidence and circumstances so proved must form such chain of events as would permit no conclusion other than the guilt of accused. Mere suspicion, howsoever strong, cannot be permitted to take the place of proof. In paragraph 5 the circumstances on which trial court & High Court relied are mentioned by Hon'ble Apex Court and it has observed that those three circumstances cannot constitute a complete chain so as to fasten liability of guilt on accused. In paragraph 6, Hon'ble Apex Court observes that deceased and his wife were neighbours of accused who was appellant before it. In paragraph 6, Hon'ble Apex Court observes that deceased and his wife were neighbours of accused who was appellant before it. Simply because deceased was persuaded by his wife to leave for railway station in wee hours and thereafter said wife went to the house of accused/appellant, though this fact may raise an eye of suspicion against wife, it cannot be a piece of circumstantial evidence for use against accused/appellant. As already discussed above facts at hand are entirely different hence the said ruling is of no help to the defence. Judgment of Division Bench of this court reported at 2007 All M.R. (Cri.) 1556 - Tulshidas vs. State of Maharashtra, shows that there the Hon'ble Division Bench has considered question whether extra judicial confession has been proved or not. Alleged extra judicial confession was made to police patil in doubtful circumstance and though police patil was alleged to have prepared a written note in presence of panchas, the same was not produced on record. Again, in this case, this ruling has no application. _____ We, therefore, find no merit in this appeal. Conviction of present appellant by trial court is maintained and appeal is dismissed. No cost.