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Act. It was the case of the prosecution that the accused fasten the guilt on the accused. Mr. Patankar the learned
was last seen with Bhagwat on the night and he was seen Advocate appearing for the accused, had no difficulty
running away from the place where the body of Bhagwat in showing that some of these circumstances are totally
was found later. The blood found on the Wakas was of innocuous and could not be said to be incriminating as
'B' group which was also the blood group of deceased against the accused : some of these circumstances are
Bhagwat. A satchel which was allegedly being carried by non-existent and some of them are not proved. We will
the accused on 4th of Oct. 1975 was seized from the shop examine the circumstances in the order in which they
of the brother of the accused. That satchel also disclosed have been mentioned in para 15 of the judgement of the
the presence of human blood of 'B' group. It is on these learned trial judge.
facts that the accused was put up for trial in the Sessions
Case referred to above. 8. The first circumstance is that the accused was seen in
village Tembhurni on the day of the incident. That has
4. The defence of the accused was one of total denial. He been held to be proved on the basis of the evidence of
also pointed out that the house from which the Wakas Shakuntala, the wife of the deceased. We will proceed
was recovered was not his house, but the house of his for the moment on the assumption that this circumstance
uncle. He denied his presence at Tembhurni on 4th of has been proved. By itself this is of innocuous nature
Oct. 1975. and cannot be pressed into service by the prosecution for
fastening the guilt of murder on the accused.
5. The prosecution examined several witnesses who can
be broadly classified into three categories. One was 9. The second circumstance that is mentioned is that,
Shakuntala, wife of the accused, who had seen the deceased Bhagwat was last seen in the company of the
accused at Tembhurni on the evening of 4th Oct. 1975. accused. For the purpose of proving this circumstance
The second group of witnesses consists of persons who several witnesses belonging to Tembhurni have been
are alleged to have seen the accused and the deceased examined. One of them is said to be a respectable School
together in the evening of 4th Oct. 1975. The third set of teacher. We will proceed on the assumption that all
would witnesses be those relating to the discovery and these witnesses are respectable and are probably making
the seizure of the articles. the statements honestly. Nevertheless, one should not
lose sight of the fact that none of these witnesses, who
6. The learned Sessions Judge was sufficiently now claim to identify the accused as the person who
impressed by the prosecution evidence to convict the was seen in the company of Bhagwat on the day in
accused of the offence with which he had been charged, question, had seen the accused any time before 4th
namely under S.302 of the I.P.C. For this offence, the of Oct. 1975. The investigating officer has shown a
accused was sentenced to imprisonment for life. Another marked degree of negligence in his duty in not holding an
charge which was levelled against the accused was one identification parade in such a case. All these witnesses,
under S.201 of the I.P.C. Of this, however, the accused who claim to have seen the accused last in the company
was acquitted. It is the order of conviction and sentence of Bhagwat on 4th of Oct. 1975, have identified the
passed by the learned Sessions Judge of Solapur on 28th accused, according to their own versions, for the first,
of June, 1976 that is the subject-matter of challenge in time in the open Court after the date of the incident.
this appeal. We do not appreciate the competence of these witnesses
to identify a person whom they say they had seen in
7. In para 15 of his judgement, the learned Sessions the company of Bhagwat on the day in question. The
Judge has enumerated the circumstances upon which the explanation given by the investigating officer that the
prosecution relied and these circumstances, according accused after being arrested on 5th of Oct, 1975 had
to the learned Sessions Judge constitute the chain of been kept in the lockup at Tembhurni police Station and,
circumstantial evidence sufficiently strong enough to therefore, an identification parade would not have served
any purpose because the identifying witnesses might
@page-CriLJ2058
have seen the accused in the lockup is so hopelessly
unacceptable that it is to be rejected out of hand. It was
the duty of the investigating officer to see that a person village inhabited by several hundred of people. He has
mho is to be identified by the prosecution witnesses also mentioned, according to the panch, that he would
who had not seen him before must be kept in such produce the same. The memorandum of this statement
circumstance that he would not be exposed to the view was reduced to writing and n is at Ex. 11. We are
of the persons who were going to identify him later in satisfied, after reading Exhibit 11, that, if anything was
the trial. The absence of the identification parade, in out said by the accused it was this that he had kept the Wakas
opinion cuts at the very root of the testimonies of these at Bembale village and not at any particular place.
witnesses who for the first time after 4th of Oct. 1975
are identifying the accused in the Court. In our opinion, 13. Thereafter according to panch Pandurang, the police
the second circumstance mentioned in para 15 of the party along with the panchas and the accused went in a
judgement of the Court below is not established at all. goods truck to Bembale. The truck was stopped at the
S.T. Stand. Thereafter all of them got down and followed
10. For the same reason we hold that the third the accused who, according to the panch, took them to
circumstance mentioned in para 15 of the judgement a house. It is mentioned by the panch himself that the
of the Court below is also not established. That Wakas was in the corner of the house, which shows
circumstance is that the accused was seen running away that it was not discovered. The Wakas was stained with
from the scene of offence. No reliance can be placed blood. The panchanama of this discovery was made and
upon any of the witnesses who pretend in the Court to it is at Exhibit 12. Exhibit 12 shows that the accused
have identified the person who was running away from made a statement that the house in which the Wakas has
the scene of the offence. been kept belongs to his uncle Arjun Bopu and so saying
he went into the house and removed the Wakas which
11. The fourth circumstance, namely the disappearance had been kept in the right hand corner of the house. It
of the deceased Bhagwat on the day is no circumstance is not necessary to make any detailed comments upon
at all which should have been pressed into service by this circumstance which is so hopelessly weak and in
the prosecution. That the deceased Bhagwat disappeared fact irrelevant to the determination of the guilt of the
is an admitted fact. It is a fact which is the basis of the accused before the Court. It is an elementary principle
investigation because Bhagwat had died. incorporated in S.27 of the Evidence Act that what is
not covered cannot be discovered. In the instant case,
12. The most important circumstance which is sought the Wakas was kept in an open place in the corner
to be utilised by the prosecution against the accused of a house which was not belonging to the accused.
is the alleged discovery of the wakas at the instance The statement made by the accused did not distinctly
of the accused. We now proceed to examine this lead to the discovery of this particular weapon. In our
circumstance in somewhat greater details P.W. 3 opinion, therefore, this circumstance has to be rejected as
Pandurang Deshmukh is the panch who is examined irrelevant to the determination of the guilt of the accused.
for the purpose of proving the alleged discovery of
the Wakas pursuant to a statement allegedly made by 14. The next circumstance was the alleged extra-
the accused under S.27 of the Evidence Act. He has judicial confession made by the accused to his brother,
mentioned that on 5th Oct. 1975 the accused who was Mercifully the learned Sessions Judge himself has
in Tembhurni Police Station made a statement in his rejected this circumstance and it is not necessary for us
presence and in the presence of another panch that he had to dwell upon the same.
kept the Wakas at Bembale and that he would produce
the same. At this stage itself we must underline 15. The seizure of a satchel which was, according to the
prosecution witnesses, carried by the accused on 4th Oct.
@page-CriLJ2059 1975 from the shop of the brother of the accused on 5th
Oct. 1975 has also been pressed by the prosecution in
the fact that the accused has not mentioned that he has its service. We do not see how the seizure of an article
hidden the wakas at any place or that he had kept it in from the shop of the accused's brother can be said to be
any particular place. What has been mentioned by him a circumstances against the accused. This circumstance
is that he had kept the Wakas at Bembale which is a also has to be rejected as having no relevance.
Appeal Allowed .