State of Maharashtra vs Pocha Lachama Munkewar

C.S. Dharmadhikari, J.—Deceased Vistari Rama, who was aged about 25 years, was resident of village Yella, tahsil Sironcha, in district Chandrapur. It seems from the record that the deceased had gone in the field for keeping watch, as usual, on 5th December 1973. His headless dead body was found lying in Gitali Jungle in the morning on 6th December 1973, which jungle is between village Yella and village Gitali. Village Gitali came into existence when refugees from East Pakisthan were rehabilitated at that place about 7 or 8 years back. Deceased Vistari had his field near Gitali jungle and he was last seen alive on 5th December 1973, when he had gone to attend to his field admeasuring about 8 acres, out of which 6 acres was under juar cultivation. Accused No. 1 Pocha Lachama, the appellant before this Court, was helping deceased Vistari as a partner in cultivation. As deceased Vistari did not return, Gangubai (P.W. 11), his mother, became worried and consequently she approached accused No. 1 Pocha Lachama to search for him. Accused No. 1 Pocha Lachama did likewise for a couple of hours in the village, but he could not trace Vistari. Then he along with villagers carried out the search everywhere, but the search was abandoned on account of night. On the next day morning again, the search was started and ultimately the dead body of Vistari without head was found.

According to the prosecution, original accused No. 1 Pocha Lachama, committed the murder of Vistari and has thus committed the offence punishable u/s 302 of the Indian Penal Code. Apart from the present accused, original accused No. 2 Pocha Bhima and one Laxman Penta were also prosecuted for the said offence. It was the case of the prosecution that all the 3 accused persons in furtherance of their common intention committed murder of deceased Vistari. It seems from the record the original accused No. 3 died after the committal proceedings, and therefore, ultimately the present appellant Pocha Lachama and original accused No. 2 Pocha Bhima were tried for the said offence in the Sessions Court.

The prosecution was not able to adduce any direct evidence to connect the accused persons with the crime. The evidence led by the prosecution is circumstantial in nature and mainly consists of the discoveries made by accused Pocha Lachama whereby he discovered-(1) the ornaments, which, according to the prosecution, were on the person of Vistari, (2) the discovery of the head of deceased Vistari and (3) the axe and its handle with which, according to the prosecution, the said offence was committed. The prosecution also relied upon the seizure of the blood stained clothes from the house of the accused Pocha Lachama.

The defence of the accused was one of denial. According to the accused No. 1, he did not know when Vistari had gone to his field, though he admitted that he was working in partnership with him. According to accused Pocha Lachama, after his return from Bazar on 5-12-1973, Gangubai (P.W. 11) asked him about deceased Vistari, and therefore, he with other villagers tried to search Vistari. He further stated that on the next day he along with other villagers had come across the headless body of deceased Vistari in Gitali jungle. So far as the discoveries are concerned, he denied to have made any statement before the police or discovered either the ornaments or the head of the deceased, or the axe or its handle. He further stated that the clothes seized from his house did not belong to him. In substance, therefore, it was his case that he has been falsely implicated in the case.

After appreciating all the evidence on record, the learned Sessions Judge. Chandrapur, found accused No. 1 Pocha Lachama guilty of the offence punishable u/s 302, Indian Penal Code and sentenced him to be hanged by neck till he is dead. So far as accused No. 2 Pocha Bhima is concerned, he found him not guilty, and therefore, acquitted him of the charge framed against him. In view of the sentence awarded by the Sessions Judge, he made a reference to this court u/s 366 of the Code of Criminal Procedure, 1973 for the confirmation of the said sentence. Against his conviction and sentence, accused No. 1 Pocha Lachama has also filed an appeal before this Court, which is registered as criminal Appeal No. 16 of 1975. As the confirmation case No. 1 of 1975 and Criminal Appeal No. 16 of 1975 arise out of the same proceedings and the judgment, they are being disposed of by this common judgment.

Shri Ghate and Shri Ranade, the learned counsel for the appellant-accused, contended before us that the learned Sessions Judge has committed an error in appreciating the evidence on record and in accepting the evidence of the prosecution witnesses so far as the discoveries are concerned. According to them, the evidence regarding discoveries is not only tainted but is a manipulated one. It is further contended by the learned counsel that in the present case the prosecution has failed to prove beyond reasonable doubt that it was the accused and the accused alone who has committed the murder of deceased Vistari. It is contended on behalf of accused Pocha Lachamathat initially the prosecution had come with a case that three accused persons in furtherance of their common intention had committed the murder of Vistari. The prosecution has failed to produce any evidence so far as other two accused are concerned. The prosecution has also failed to prove guilt of the accused No. 1 by adducing any direct evidence. According to the learned counsel, however, by manipulation or manoeuvering, the investigation machinery has tried to foist upon the accused the discoveries of the various articles and the said evidence, including the statement made by the accused leading to the discoveries of the articles found, namely, the ornaments, the bead of the deceased, the axe and its handle, is false.

On the other hand, it is contended by Shri Mor, the learned Assistant Government Pleader, that the evidence of discoveries adduced by the prosecution is truthful and trustworthy. From the said evidence it is quite clear that the accused has discovered the ornaments which were on the person of the deceased at the time of his death, the head of the deceased which was lying concealed near a Palas tree and the axe and its handle by which the deceased was murdered. This evidence, according to the learned Assistant Government Pleader, is enough to connect the present accused with the crime, and therefore, the learned Sessions Judge was right in accepting the said evidence and coming to the conclusion that accused Pocha Lachama was guilty of an offence punishable u/s 302 of the Indian Penal Code.

For properly appreciating the rival contentions raised before us, it will be necessary to refer to the material evidence on record in detail. From the evidence of Gangubai (P.W. 11), the mother of the deceased, it is clear that deceased Vistari had gone alone to his field for keeping watch. According to her, as her son did not return, she went to the house of accused Pocha Lachama to make an enquiry. Therefore, from this evidence it is quite clear that on 5-12-1973 deceased Vistari had gone to his field for keeping a watch. It is further clear from her evidence that thereafter Vistari was not seen alive. From the evidence of Gangu (P.W. 11), Ganpati (P.W. 2), Lachha Budha (P W. 3) and Gajanan (P.W. 4) it is quite clear that on 6-12-1973 the dead body of deceased Vistari was found in the jungle known as Gitali Jungle. From the evidence of Dr. Shrihari (P.W. 1 ) it is further clear that when he conducted post-mortem examination on the dead body of deceased Vistari on 8-12-1973 he found following six injuries on his person :

(1) Abrasion of skin 1" size medial to left ankle joint.

(2) Incised wound 2" in length 1" above the left clavicle and 3" away from middle part of sternal angle over the left side of neck directing towards central part.

(3) Incised wound 2" in length over left side of neck 1" below the cut portion of neck directing towards central part.

(4) Incised wound 2" in length over back side of neck about 1" below the cut portion of neck directing towards central part.

(5) The neck along with head is cut off from body in a transverse plane taking in front the lower part of Thyroid Certilage and behind the lower part of Second Cervical Vertebra by multiple injuries in that plane.

(6) Injury over angle of mandible 2" in size. Muscle deep and is incised in nature. Injury Nos. 2 to 6 might be caused by a sharp weapon and their probable age is about 48 to 72 hrs.

From the evidence of Dr, Shrihari (P. W. 1) it is further clear that the probable cause of the death of deceased Vistari was due to the cutting away of the neck from the body resulting in absence of control of vital centres of brain over vital organs and due to severe bleeding and the doctor has expressed his opinion that the death was homicidal one. From the evidence of the doctor it is further clear that the injuries found on the dead body were ante-mortem. Therefore, in our opinion, the conclusion can safely be drawn that the death of deceased Vistari was homicidal in nature. As a matter of fact, this aspect of the case has not been challenged on behalf of the defence either before the Sessions Court or before this Court.

In support of its case the prosecution has examined Lachha Budha (P. W. 3), Dewendra Ananda (P. W. 5), and Nilkantshaha (P. W. 6) as Panchas in the case. Lachha (P. W. 3) has attested the spot Panchanama (Ex. 10) and inquest Panchanama (Ex. 11). Dewendra Ananda (P. W. 5) is examined by the prosecution to prove the statement made by the accused as well as the discoveries made in pursuance of the said statement. The said witness was also present when the house of the accused was searched and the clothes, namely, Articles 14 and 15, were attached from his house, under Panchanama Ex. 15. He is, therefore, also a witness to the memorandum Ex. 16 made by the accused, in pursuance of which the ornaments, namely, Articles 16, 17 and 19, were discovered by the accused from the field of deceased Vistari. He is also a Panch witness to the discovery of the head of deceased Vistari and the axe and its handle, Articles 8 and 9 which were discovered by the accused at a short distance away from the place where the dead body of Vistari was found. These discovery Panchanamas are marked as Exhs. 17, 18 and 19. Nilkantshaha (P. W. 6) was called by the police in the police station when the clothes of the accused were attached under Panchanama Ex. 21,

The prosecution has also examined Ganpati Ramteke (P. W. 2), the son of the Kotwal of the village, who, in the absence of his father had gone to the police station and had made a report which is at Ex. 8. Gajanan Bhana Panemwar (P. W. 4) and Gangubai (P. W. 11), the mother of the deceased are also examined by the prosecution in support of its case.

Apart from these prosecution witnesses, the prosecution has examined Madhukar Laxman (P. W. 12) as an interpreter, whose services were utilised by the prosecution for interpreting the version of Ganga (P.W.11), Uttam (P. W. 9) the police constable was the carrier of Muddemal articles to the Chemical Analyser. Madhukar (P. W. 12) had acted as an interpreter when the statement of the accused was recorded by Police Sub-Inspector Ramchandra Palandurkar (P. W. 13). The prosecution has also produced on record the report of the Chemical Analyser, which is at Ex. 32. The report of the Chemical Analyser shows that the blood detected on the axe (Art-8), axe handle (Art-9), silver Kardoda (Art-12), Baniyan (Art-14) and Dhoti (Art-15) was a human blood. However, the report of the Chemical Analyser shows that the result so far as the group of the blood found on axe handle, axe, silver Kardoda, Baniyan and Dhoti (Arts-8, 9, 12, 14 and 15 respectively) was concerned was inconclusive, though, according to the Chemical Analyser''s report (Ex. 32) other articles found on the person of deceased Vistari had a blood of group ''A''. Human blood was also found by the Chemical Analyser on the silver Kardoda, which is Article-I2.

We have gone through the whole evidence on record. From the evidence on record, therefore, it is obvious that there is no direct evidence on record to connect the accused with the crime. No motive has been suggested nor proved by the prosecution which could indicate that appellant Pocha Lachama could have any reason for committing murder of deceased Vistari. The previous or subsequent conduct of the accused also does not appear to be suspicious in the case. On the contrary, from the evidence on record it is obvious that accused Pocha Lachama had helped villagers as well as the mother of the deceased, in tracing Vistari. There is no suggestion nor any evidence on record to show that accused Pocha Lachama anyway tried to mislead the villagers from tracing the dead body. Therefore, it was an admitted position before the Sessions Judge as well as before us that the only evidence, which, according to the prosecution, connects accused Pocha Lachama with the crime is the evidence of recoveries and the discoveries of certain properties. According to the prosecution, the said evidence is sufficient to reach a conclusion of guilt so far as the present appellant is concerned.

So far as the evidence regarding the seizure of clothes is concerned, from Ex.15, the seizure memo, it appears that on 7-12-1973 from the person of Pocha Lachama, the present appellant, one Dhoti of red border which contained stains of blood at three places and some blood stains had been washed out and one Baniyan of full sleeves which contained stains of blood on left shoulder and some blood-stains appeared to be washed out were seized. Dewandra Ananda (P. W. 5) has stated on oath that on 7-12-1973 when he reached village Yella with Police Sub-Inspector Palandurkar at about 5.00 or 5.30 p. m. the police took the search of the house of accused No. 1 and during the course of said search the police found one Baniyan which is Article-14 and one piece of Dhoti Article-15 in the house of the accused No. 1. He further stated that there were blood stains on these articles. According to him, the police attached these two articles under a Panchanama Ex. 15. He further stated that the contents of the said Panchanama are true and correct.

Madhukar Bogawar, Police Head Constable (P. W. 12) has also stated that on 6-12-1973 Police Sub Inspector Palandurkar received the case diary in the case. According to him, on 7-12-1973 at 5.00 p.m. the house of the accused No. 1 was searched and during the course of said search they found Baniyan and Dhoti (Articles-14 and 15) stained with blood in the house of Pocha Lachama and the same were seized under Panchanama Ex 15. Ramchandra Palandurkar (P. W. 13), Police Sub-Inspector, also stated that on 7-12-1973 they searched the house of the accused at about 7.30 p. m. recovered from him Articles 14 and 15 as per the Panchanama Ex. 15. According to him, both these articles had blood stains. From the bare reading of this evidence, therefore, it is quite clear that though in the Panchanama it is stated that one Dhoti and one Baniyan was seized from the person of the accused Pocha Lachama, in fact these articles were seized by the police from the house of the accused. Apart from this material discrepancy, from the Chemical Analyser''s report (Ex. 32) it is quite clear that Article 14 Baniyan had very few pinhead size blood-stains and Article 15, which is a Dhoti, had two small blood-stains. In the report no reference has been made by the Chemical Analyser to any washed bloodstains found on these articles. The appellant-accused was an agriculturist and obviously, therefore, some small blood stains on his clothes could not be termed as unnatural. Therefore, having regard to the discrepancy in the recitals of the Panchanama Ex. 15 and the oral evidence on record and having regard to the report of the Chemical Analyser, in our opinion, finding of very few pinhead size bloodstains on the Baniyan and two small bloodstains on the Dhoti cannot be termed to be an incriminating circumstance on which conviction can be based. In his statement u/s 313 of the Code of Criminal Procedure, 1973, the accused has stated that these articles did not belong to him. No material has been placed on record by the prosecution to establish the fact that the clothes-seized from the house of the accused No. 1 were the clothes worn by him at the relevant time and belonged to him. In this view of the matter, in our opinion, the learned Sessions Judge committed an error in treating this circumstance as an incriminating circumstance connecting the accused with the crime.

So far as the evidence of discoveries is concerned, the prosecution has examined Dewendra Mandal (P.W. 5), Madhukar, Head Constable (P.W.12) and Ramchandra Palandurkar, Police Sub-Inspector (P. W. 13). The prosecution is also relying upon the memorandum Ex. 16 and the seizure memo of the ornaments discovered by the accused (Ex. 17), as also the seizure Panchanama Ex. 18, the seizure memo Ex. 19 whereby the iron axe and its handle were seized by the police in pursuance of the discovery made by the accused. So far as all these seizure memos and the Panchanamas are concerned, Dewendra (P. W. 5) and one Upen Mandal had acted as Panchas. According to the evidence of Dewendra (P. W. 5) after the house of accused Pocha Lachama was searched on 7-12-1973 and the two bloodstained clothes were seized and attached from the said house, the Panchas, the police and accused No. 1 Pocha Lachama and others went to the house of Police Patel at village Yella. There the accused was arrested and his hands were tied with a rope. According to the Panch witness Dewendra (P. W. 5), the accused then showed his inclination to discover the articles. According to this witness, the accused spoke in Telugu. He has further stated that he knows little of Telugu and Head Constable Madhukar translated what the accused stated before them. According to this witness, the accused stated that he had kept concealed the head portion, the axe and the handle and the ornaments and that he would show the place and produce the articles. After this, the police prepared the memorandum Ex. 16. According to this witness, thereafter the accused led them to Gitali jungle. Initially the accused No. 1 Pocha Lachama took them to the agricultural land of deceased Vistari. He took them near the palas tree and excavated near the trunk thereof with hands and took out one cloth bundle which on opening disclosed Articles Nos. 16, 17 and 18, the ornaments of deceased Vistari. That palas tree was in juar field. According to this witness, the police then attached all these articles under Panchanama Ex. 17. Thereafter the accused led them to village Gitali and through it to the road going towards Narapalli. The accused then took them to the place where the dead body of Vistari had already been found. The accused then from that place took them to a place about 30 paces to the West and took out the head of Vistari from a bush of Garadi tree. According to this witness, the head of deceased Vistari was not visible before it was taken out by the accused. He further stated that at that time the mother of Vistari was not with them. After this, the accused took them to a place about 20 paces to the South from where he produced axe blades (Art-9) kept in an ant hill. According to him. there was blood on the axe blade. From the same place the accused took cut a handle (Art-8) from the bushes nearby and then the seizure memo as regards Articles 8 and 9 was prepared, which is Ex. 19. The police then prepared one more Panchanama to indicate as to what had happened, which is Ex. 18. According to this witness, this was all completed by about 11.00 p.m. In his cross-examination, this witness stated that deceased Vistari used to work as a labourer in their held, and therefore, he had seen him on number of occasions. According to this witness, Vistari was not able to talk very clearly and he used to stammer. He further admitted that when the house of the accused was searched, the accused and the police had some talk, but he did not know what talk had taken place between the accused No 1 and the police. He further admitted in his cross-examination that the Articles 14 and 15 were not attached from the person of the accused, but they were taken out by the accused from his house. This witness further admitted that even though he knew something of Telugu, he could not gather exactly as to what Pocha Lachama was saying. However, according to him, when the Head Constable was translating, he could understand what Pocha Lachama had said. In the cross-examination this witness further admitted that all the 3 places where the ornaments, the head and the axe with handle were found were open places and could be approached easily. However, according to him, none of these articles were visible. There were lot of leaves lying about all over and consequently no footsteps could be seen. He further admitted that on that day the police made six documents. A suggestion was made to this witness that accused Pocha Lachama did not say anything, nor he had discovered any article, as contended by him. From the evidence of this witness, therefore, it is quite clear that the accused was speaking in Telugu and this witness knew little of Telugu. It is further clear from his evidence that even though he knew something of Telugu, he could not gather exactly what accused Pocha Lachama was saying. According to him, he could understand what the accused was saying only after Madhukar Head Constable translated what the accused had stated before them. From his evidence it is further clear that all the 3 places where from the ornaments, the head of deceased Vistari and the axe with handle were found were open places and could be approached easily. According to this witness, he knew deceased Vistari, because he used to work as a labourer in his field and he had seen him on number of occasions,

Gangubai (P. W. 11) has stated on oath that Vistari never used to go for labour work. She further stated that Vistari was a simpleton and that he was not able to speak. According to her, Vistari never used to go out for work and it was she who used to do the work, including household purchases etc. Therefore, it is obvious that the statement made by witness Dewendra (P. W. 5) that Vistari used to work as a labourer in his field is obviously not correct. Further, if Ex. 16 the memorandum is read in the context of the evidence of this witness, we find that the various statements made by this witness are surprisingly absent in the said memorandum. Bare reading of the said memorandum gives an impression that the accused made a statement in Marathi, which was recorded by Ramchandra Palandurkar, the police Sub-Inspector, in the words of the accused. We do not find any reference to the fact that the version incorporated in Ex. 16, the memorandum of the accused, was a translated version. It is pertinent to note that Madhukar (P. W. 12) was not initially cited as a witness by the prosecution. From the record it seems that by an application dated 15-1-1975, the prosecution sought permission from the Court to examine him as a witness. In the said application it was stated by the Public Prosecutor that the evidence of Head Constable Madhukar is very important, but his name was not included in the charge-sheet due to inadvertance. It cannot be forgotten that Dewendra (P. W. 5) was examined by the prosecution as a prosecution witness on 15-1-1975. It is obvious from the record that after the evidence of Dewendra Mandal (P. W. 5) was concluded, the present application came to be filed by the Public Prosecutor. It seems that because in his evidence Dewendra Mandal (P. W. 5) made a statement that he did not know Telugu well and it was Head Constable Madhukar who translated what the accused stated before them, the prosecution chose to examine Head Constable Madhukar as a witness. Therefore, in our opinion, the evidence of Madhukar (P. W. 12) will have to be considered in this background.

Madhukar Laxman Bogawar (P. W. 12) is the Head Constable, who was attached to Aheri Police Station. It is clear from his evidence that he was helping Police Sub-Inspector Palandurkar in the investigation of this crime. According to him, he knew both Telugu and Marathi and he used to speak in both these languages at home. He further stated that he can translate from one language to another. According to this witness, on 7-12-1973 they left the police station in the early morning and reached village Yella same day at 9 00 a.m. First they went to the place of incident and then the inquest Panchanama Ex. 11 and spot Panchanama Ex 10 were prepared. Then they came to village Gitali, it is, however, clear from his evidence that accused Pocha Lachama was with them at that time. Then from village Gitali they came to village Yella and reached there at about 5 00 p.m. on 7-12-1973. There the house of the accused was searched and they found Baniyan and Dhoti (described in the Chemical Analyser''s report as Articles 14 and 15 stained with blood, in the house of accused No. 1 Pocha Lachama. The clothes found were seized under the Panchanama Ex. 15. Thereafter they brought the accused to the house of Police Patel and the accused Pocha Lachama was arrested at 6:00 pm. there. According to him, while interrogating, accused Pocha Lachama stated that he did not know Hindi or Marathi properly and that he was prepared to talk in Telugu. Thereafter the accused stated in Telugu and this witness translated the same to Police Sub-Inspector Palandurkar. According to him, he had truly and faithfully translated what was stated by accused Pocha Lachama before them. He further stated that two Panels Dewendra (P. W. 5) and Upen were present there. According to this witness, the accused stated before them that the head of the deceased had been concealed by him in the bushes of Garadi tree near the dead body and that he had kept concealed the axe in the ant hill near the Garadi tree and that nearby he had kept the handle of the axe. He further stated that the accused told that he had kept gold and silver ornaments in the juar field of Vistari near the trunk of a palas tree. According to this witness, all these statements were made by the accused in Telugu and he translated them faithfully to Police Sub-Inspector Palandurkar and the two panchas in Marathi. In his cross-examination, this witness admitted that he had not signed on any paper showing that he had translated what the accused had stated before them in Telugu. He further admitted that his statement was not recorded in the case. According to this witness, about 10 or 12 villagers of Yella were also present then, but he stated that though they made enquiry, no person knowing both the languages was available. It was not possible for this witness to give a list of witnesses who were present there. Though according to him Police Patel was present, he could not tell the name of the Police Patel. According to this witness, Police Sub Inspector did not ask the Police Patel anything in his presence. This witness further stated that he was putting questions to Pocha Lachama in Telugu, which he was asked to put by the Police Sub-Inspector and then be was translating the answers. However, he did not remember as to what questions he was asked to put to accused Pocha Lachama first. Then the questions were asked to him as to what expressions the accused had used in Telugu for "head", "axe", "handle", "ornaments" etc. He further admitted that he did not know reading and writing in Telugu. The suggestions were made to him in the cross-examination that the articles which were discovered by the accused were already discovered by the Police, even before accused Pocha Lachama was interrogated. Certain Telugu phrases were put to him and in reply to this he stated that those expressions were used in pure Telugu. He further admitted in the cross-examination that they searched for the head of Vistari after the inquest Panchanama, but they did not find it.

Ramchandra Palandurkar (P. W. 13) is the Police Sub-Inspector, who had carried out the investigation of the crime. According to him, on 7-12-1973 when he left Alapalli in the early morning and reached Yella village, Madhukar Head Constable (P. W. 12) was with him. Then they prepared spot Panchanama Ex. 10 and inquest Panchanama Ex. 11. According to him. most of the villagers of village Yella were present at the spot and with their help they tried to search the head of Vistari. He further stated that he then recorded the statement of Accused No. 1 Pocha Lachama. We do not know as to in what language the said statement was recorded by Police Sub-Inspector Palandurkar, According to this witness, thereafter with accused No. 1 Pocha Lachama and some other villagers they went to Gitali to the shop of Upen Pike and there they collected two panchas, namely, Dewendra (P. W. 5) and Upen. They then came to village Yella at about 5.00 p. m. Then they straightway went to the house of accused No. 1 Pocha Lachama and in the presence of panchas took search of his house and recovered therefor Articles Nos. 14 and 15 as per seizure Panchanama Ex. 15. Then they came to the house of Police Patel and arrested the accused. According to him, in the presence of the panchas he interrogated the accused, who stated before them that he would produce the head of Vistari kept by him concealed in the Garadi bush, axe and axe-handle from near that place and kept concealed in the ant-hill and the ornaments of Vistari in the juar field of Vistari near the trunk of a palas tree. According to this witness, on the basis of statement made by accused Pocha Lachama memorandum Ex.16 was prepared. He further stated that this statement was trade by the accused in Telugu and it was translated by Head Constable Madhukar. According to this witness, the contents of Ex. 15 were written by Head Constable Madhukar and Ex. 16 was written by him. After the said memorandum was recorded, accused Pocha Lachama led them first to the juar field of deceased Vistari and discovered ornaments, Articles-16, 17 and 18 tied in a cloth and kept concealed near the trunk of a palas tree. These ornaments were attached by them under seizure Panchanama Ex. 17. Thereafter the accused took them back to the place where the dead body was originally found. From that place the accused Pocha Lachama discovered the head of Vistari from a Garadi bush and produced before them. Thereafter he discovered the axe and its handle from a short distance thereof. The axe head was kept in the ant-hill. The axe and the handle were seized as per seizure memo Ex. 19. According to him, Ex. 18 related to all these discoveries. He further stated that all these articles were not visible before they were taken out by the accused. In the cross-examination this witness admitted that initially they had searched for the head of Vistari, but they could not find it. A suggestion was made to him that they had gone to Gitali as they were suspecting Bengalis and at the instance of Upen Mandal they came back. He admitted in the cross-examination that when the memorandum was drafted other villagers were also present. A suggestion was made to him that he had not taken villagers of Yella as witness as he had to make a false memorandum. Then it was pointed out to him that on Exs. 15 and 17 he has not mentioned the time when the said Panchanamas were drawn.

From the bare reading of the evidence of this witness, it is clear that he had not stated as to what procedure was exactly followed when the statement of the accused was recorded vide Ex. 16, the memorandum. From his evidence it appears that in the presence of the panchas he interrogated accused Pocha Lachama and thereafter he made a statement before him, which is the memorandum Ex. 16. This witness has not stated before the Court that when the accused was being interrogated he stated that he did not know Hindi or Marathi properly and that he was prepared to talk in Telugu alone. He has also not stated in his deposition that it was P. W. 12 Madhukar, the Head Constable, who was putting questions to accused Pocha Lachama in Telugu and the said questions were being put by him as per his instructions. Therefore, obviously he does not support this part of the evidence of Madhukar (P. W. 12). It was also not possible for Madhukar (P. W. 12) to tell as to what questions he was asked to put to accused Pocha Lachama first. Further it is clear from the evidence of Police Sub-Inspector Palandurkar (P. W. 13) that other villagers were present when the statement of accused was recorded. From the evidence of Madhukar (P. W. 12) and Palandurkar (P. W. 13) it is further clear that the accused had made a statement in the presence of Police Patel. One fails to understand that, when the other independent persons whose services could have been used for the purposes of translation were present at the spot as to why the Police Sub-Inspector chose the Head Constable Madhukar as an interpreter. It is pertinent to note that we do not find any where in Ex. 16 that such a procedure was followed for recording the information given by the accused. It is further clear from the evidence of Madhukar (P. W. 12) that his statement was also not recorded during the course of investigation. In the absence of such a material on record, coupled with the fact that initially Madhukar Head Constable (P. W. 12) was not cited as a witness at all, in our opinion, it will not be safe to place complete reliance on the interested testimony of Head Constable Madhukar or Police Sub-Inspector Palandurkar (P. Ws. 12 and 13 respectively). The provisions of section 27 of the Evidence Act are in the nature of a proviso or exceptions to the provisions of sections 24 to 26 of the Evidence Act. As observed by the Privy Council in Pulukuri Kottaya v. Emperor A I R 1947 P C 67:

Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. This condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate.

While considering this aspect of the matter we cannot forget the observations of the Supreme Court in Thimma and Thimma Raju Vs. State of Mysore, wherein a warning has been given by the Supreme Court to the Courts in the following words :

Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of sections 25 and 26 of the Indian Evidence Act is not whittled down by the mere manipulation of the record of case diary.

The said question was also considered by the Supreme Court in Jaffar Hussain Dastagir Vs. State of Maharashtra, . After quoting the provisions of section 27 of the Evidence Act, the Supreme Court observed:

''''In order that the section may apply the prosecution must establish that the information given by the appellant led to the discovery of some fact deposed to by him. It is evident that the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by accused.

Under section 25 of the Evidence Act no confession made by an accused to a Police Officer can be admitted in evidence against him. An exception to this is however provided by section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 is a proviso to section 26 and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confessional or otherwise. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence. The embargo on statements of the accused before the police will not apply if all the above conditions are fulfilled.

From these observations of the Supreme Court it is, therefore, obvious that section 27 insists that, part of the information given by the accused only is admissible which distinctly relates to the facts discovered. It is for the Court to decide as to what part of the information given by the accused distinctly relates to the facts discovered and is, therefore, admissible. Therefore, unless the exact words used by the accused persons in giving the information are known, the Court will not be in a position to decide to what extent of statement of the accused is admissible in evidence. As observed by Privy Council in Pulkuri''s case the ban imposed in the previous sections, namely, sections 24 to 26, was presumably inspired because of the fear and the apprehension of the Legislature that a person under Police influence might be induced to confess by exercise of threat, undue influence etc. Therefore in our opinion, in such matters, it is absolutely necessary that the version of the accused should be recorded by the Investigating Officer as far as possible in his own words. The information given by the accused to the police officers which is provable u/s 27 of the Evidence Act should be clearly and carefully recorded. It should be recorded in the first person, that is to say, as far as possible in the actual words of the accused. In this context a reference can usefully be made to the decision of the Allahabad High Court in Nathu Vs. State, and the decisions of the Madhya Pradesh High Court in The Bilaspur Central Co-operative Bank Ltd. Vs. The State of Madhya Pradesh, and Girdhari v. State 1962 M P L J Note 43.

In the present case, there is no convincing evidence on record to prove as to what were the actual words used by the accused when he gave the information to the police as a result of which the various articles were discovered. The information which is incorporated in Ex.16 is a translated version. The questions for interrogation were framed by the Police Sub-Inspector in Marathi, which were translated by Madhukar (P. W. 12) in Telugu and then they were put to the accused. In reply to the said questions, the accused gave his answers in Telugu, which were again translated by Madhukar (P. W. 12) in Marathi for the benefit of the Police Sub-Inspector and the Panchas and according to the witnesses this translated version is incorporated in Ex. 16. From the evidence of Madhukar (P. W. 12) it is further clear that he does not remember now as to what questions he was asked by the Police Sub-Inspector to put to the accused Pocha Lachama first. It is also clear from his evidence that he does not know reading and writing in Telugu. From the note of the Judge made while recording evidence of witness Madhukar (P. W. 12) it is further clear that this witness has stated in his deposition that the words suggested to him in cross-examination represented pure Telugu while the accused Pocha Lachama was not speaking that type of Telugu. Even if it is assumed that this witness knew Telugu very well and did not know reading and writing in Telugu, the exact words spoken by the accused could have been recorded in Deonagari script. If the evidence of the Panch witness Dewendra (P. W. 5) Head Constable Madhukar (P. W. 12) and Police Sub-Inspector Ramchandra Palandurkar (P. W. 13) is read together in this context, it is not possible for us to know as to what exact words were spoken to or used by the accused. It is also not possible for us to hold in this case that the information given by the accused was faithfully recorded in Ex. 16, having regard to the peculiar facts and circumstances of this case.

Further, in our opinion, the evidence on record regarding discovery itself is to some extent doubtful. Gangu (P. W. 11) has stated in her deposition that when she approached accused Pocha Lachama and enquired from him about her son deceased Vistari, he went round the village in search of deceased Vistari. He returned after about a couple of hours but could not find Vistari and therefore, Gangubai told him to search for Vistari in the field. Thereafter accused Pocha Lachama brought some villagers, including the Police Patel, and they went in search of Vistari. They returned after some time and told her that they had seen all the fields except the Juar field of Vistari as it was near Jungle and that they would search for him on the next day. The next day, when this witness was proceeding to the place where the dead body was kept for the purposes of Panchanama, accused Pocha Lachama on the way told her that the ornaments of the deceased were kept bound in the cloth in the field. From this statement it is obvious that even prior to the discovery of the ornaments by the police in pursuance of the statement made by the accused, the accused had told the witness, who is the mother of the deceased, that the ornaments of the deceased were kept bound in the cloth in the field. Obviously this information was given by the accused to the witness because he came to know about them when he had been in search of the dead body with the other villagers. If this is so, it is quite possible that Gangu (P. W. 11) and other villagers already knew about the ornaments. From the evidence of the prosecution witnesses, including Madhukar (P. W. 12) and Ramchandra Palandurkar (P. W. 13) it is quite clear that a search for the head of the deceased was also made by the police officers and the villagers in the vicinity. Therefore, it is obvious from the evidence that the police officers as well the other villagers had made a search for the head of the deceased in the vicinity of the place where the dead body was found. Such a search was under even in the shrubs wherefrom ultimately it is alleged by the prosecution, the accused discovered the head of the deceased. It sounds unnatural that inspite of the vigorous search by the villagers as well as the police officers, they could not find the head of the deceased, which was lying at an open place just 30 paces away from the place where the dead body of Vistari was found. From the spot Panchanama Ex. 10 it is quite clear that the stains of the blood were found on several places on earth from the spot of the incident to the distance of 1 1/4 furlongs by the footpath going to village Gitali. If this is so, then one fails to understand as to how it was not possible for the police officers as well as the villagers to trace out the head which was lying near about the spot where the dead body of the deceased was found. To us, the evidence in this behalf sounds unnatural and suspicious.

So far as the recovery of the axe is concerned, the axe as well as the handle was also recovered near the Warul, that is, an ant-hill, which was near Garadi tree. The said place was at some distance from the place of occurrence in the forest to the West of Gitali. From the evidence of Gangu (P. W. 11) it seems that Vistari used to take some times an axe with him while going for work in the field, though she has stated that she did not know whether Vistari had taken the axe on that day. It is pertinent to note that the axe found was not shown to this witness for the purpose of identification. If the said axe was shown to this witness she could have thrown some light so far as the ownership of the axe is concerned. It is further clear from her deposition that even the ornaments discovered and seized were never shown to her during the course of investigation. However, she has stated in her deposition before the Court that the ornaments found and which were before the Court belonged to her deceased son.

In her deposition Gangu (P. W. 11) has further deposed that when she accompanied the accused Pocha Lachama to see the dead body she was informed about the ornaments. Pocha Lachama had also informed her that the head had not been discovered. From the Panchanama it is quite clear that the search for the head was made on 7-12-1973 from 9 00 a.m. to 1.00 p.m. From the evidence it seems that the search was made minutely and still we are expected to believe that the head was not found. Dewendra (P. W. 5) had stated in his deposition that when the head was discovered by the accused, the mother of deceased Vistari, namely, Gangu (P. W. 11), was with them. However, in her deposition Gangu (P. W. 11) has stated that when head part of the body was found at night she was not there. Initially the prosecution had proceeded against 3 persons, who were ultimately made the accused in the present trial. As already observed, the third accused, namely, Laxman Panta, died before the Sessions trial started. Therefore, the Sessions trial proceeded against remaining two accused, namely, the present appellant Pocha Lachama and another accused Pocha Bhima. Though Pocha Bhima and original accused No. 3 were made accused in the present proceedings, the prosecution was not able to bring even an iota of evidence so far as the other two accused persons are concerned. It is clear from the judgment of the learned Sessions Judge that the case against the original accused No. 2 Pocha Bhima was conceded by the learned Public Prosecutor as there was no evidence against him. Therefore, it is obvious that initially it was the case of the prosecution that more than one person were responsible for committing the murder of the deceased Vistari. In spite of this, it was not possible for the prosecution to bring any evidence so far as the accused No. 2 Pocha Bhima was concerned. In these circumstances, in our opinion, the evidence of discovery led by the prosecution requires a closer scrutiny. In this context it is contended by Shri Ranade, the learned counsel for the accused-appellant that as the prosecution was not able to collect any evidence against any of the accused persons, this evidence of discovery was anyhow manoeuvred by the investigating machinery. We are not inclined to accept this contention of the learned counsel. However, in our opinion, if the evidence relating to the discovery led by the prosecution is read together with the circumstances referred to hereinbefore, it will not be safe to accept the said evidence on its face value. As observed by the Supreme Court in Jamuna Chaudhary and Others Vs. State of Bihar, , the duty of the Investigating Officers is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a a conviction but to bring out the real unvarnished truth.

The prosecution has not brought on record any evidence to suggest any motive on the part of the present appellant so that he could commit a ghastly crime. No motive has been suggested much less it is proved by the prosecution. There is no direct evidence to connect the accused with the crime. The subsequent conduct of the accused also negatives the case of the prosecution in this behalf. It is quite clear from the evidence of Gangu, the mother of the deceased, that she never suspected the accused. On the contrary she had entrusted the work of searching deceased Vistari to him. From the evidence of Gajanan (P. W. 4) it is clear that the accused Pocha Lachama helped them in searching deceased Vistari. Gangu (P. W. 11) has admitted mat there were no quarrels between Pocha Lachama and deceased Vistari. If subsequent conduct of the accused is considered in this context, it is obvious that his helping the police as well as the villagers in searching out deceased Vistari clearly indicates his innocence rather than his guilty mind, It has not been suggested by the prosecution at any stage that accused Pocha Lachama has tried to mislead the villagers in this behalf. In the absence of any direct evidence on record to connect the accused with the crime, coupled with the absence of motive and the subsequent conduct of the accused referred to hereinbefore, in our opinion, it will not be safe to convict the accused on the basis of such an evidence regarding discoveries.

Apart from this, there is evidence on record to show that deceased Vistari was a simpleton and was not in a position to express himself properly. From the evidence of Gangu (P. W. 11), the mother of the deceased, it is clear that he used to accompany anybody if he was asked to do so. In her deposition Gangu (P. W. 11) has made a wild statement that Bengalis used to murder people and offer them to God. Of course, it is not possible for us to accept this wild statement. But apart from this, from the evidence of Gajanan (P.W.4) it appears that the villagers suspected that deceased Vistari might have been killed by the thieves, because, according to him there were thieves on that side, namely, on the side of Gitali jungle. In these circumstances, it is not possible to hold from the evidence placed on record by the prosecution that it was accused Pocha Lachama alone who was responsible for the murder of deceased Vistari. In any case, having regard to the facts and circumstances of the present case, in our opinion, the appellant Pocha Lachama is entitled to a benefit of doubt.

In the result, therefore, the appeal filed by the appellant-accused Pocha Lachama, being Criminal Appeal No. 16 of 1975, is allowed. The order of conviction and sentence passed by the Sessions Judge, Chandrapur convicting the accused for the offence punishable u/s 302 of the Indian Penal Code is set aside and accused Pocha Lachama is acquitted of the said charge. Consequently, the reference made by the Sessions Judge u/s 366 of the Code of Criminal Procedure, 1973 is rejected. The accused is entitled to be set at liberty forthwith.