Important Point
Where the conducted of the witness to whom accused allegedly made confessional statement showed that his entire evidence was artificial, conviction made on the basis of alleged extra judicial confessional statement could not be sustained.

Judgment

S.P. Kurdukar, J.-The appellant accuesd after obtaining special leave has filed this Criminal Appeal challenging the legality and correct­ness of the judgment and order dated December, 1996 passed by the Gujarat High Court whereby the conviction of the appellant for the offences punishable under Sections 302 and 201 Indian Penal Code has been confirmed.

2. The prosecution case as disclosed during the trial is as under :-

Noorbhai since deceased was working as a Watchman with Allana Mill at Veraval. This mill was closed down some ten years back prior to 1988 and Noorbhai was to look after the property and machinery that was lying at Allana Mill. He was residing inside the compound of Allana Mill. According to the prosecution, Noorbhai on 12.2.88 was on duty from 9.00 A.M. to 12 Noon and from 4.00 P.M. to 7.00 P.M. Usually, Noorbhai used to return from his work at about 7.00 P.M. Since he did not return, Mohd. Hus­sain (P.W. 2) went in search of him and after making enquiries he learnt that Noorbhai had left the mill premises at about 7.00 P.M. Till late in the evening the whereabouts of Noorbhai were not known nor he returned on the following day. Mohd. Hussain (P.W. 2), there­fore, started making further enquiries with his relatives but he could not get any useful information. Haji Noorbhai (P.W. 3) who happen to be another son of Noorbhai then went to Junagarh and Rajkot in search of his father but he was not found there. For nearly three days the family members of Noorbhai could not get any information about the whereabouts of Noorbhai. On 15.2.88 it was learnt that a dead body was floating in the pond situated near the Allana Mill compound on the back side. The sons of Noorbhai then went to the pond and it was found that the dead body was of Noorbhai. Immediately a message was sent to Veraval Police Station and the police party arrived at the scene. The dead body of Noorbhai was taken out of the Pond with the help of fire brigade. The inquest Panchnama was then carried out wherein several injuries on the person of Noorbhai were recorded. An iron strip was also found to have been inserted in the mouth. The dead body was then sent to the hospital at Veraval. Dr. Jairajbhai (P.W. 1) held the autopsy on 16.2.1988 at about 10.30 A.M. and noted as many as six injuries. Dr. Jairajbhai (P.W. 1) opined that the cause of death was “haemorrhage shock due to major vessels injury over the front of the neck”. Injury No. 1 was sufficient in the ordinary course of nature to cause death. During investigation it was suspected that the appellant who was also working as a Watchman in the mill would know something about the incident. During interrogation he made a statement which led to the discovery of certain incriminating articles. On 16th February, 1988 Deva Rama (P.W. 4) during investigation stated that the appellant on 12.2.88 had confessed before him at about 7.30 p.m. that he had committed the murder of Noorbhai and requested him to help him in this behalf. The prosecution sought to rely upon this extra judicial con­fession alleged to have been made by the appellant to Deva Rama (P.W. 4). The Investigation Officer, thereafter, arrested the appellant and during interrogation he made a statement which led to the discovery of certain clothes of the deceased and hoe which were buried near the pond. These articles were seized under various Panchnamas. The clothes of the deceased and other articles were sent to Chemical Analyzer for examination. After completing the investigation, the appellant was put up for trial for offences punishable under Sections 302 and 201 Indian Penal Code and under Section 135 of Bombay Police Act. The appellant denied the charge and claimed to be tried. According to him, he is innocent and has falsely implicated in the present crime.

3. As the outset it may be stated that it is a case of circumstantial evidence and the courts below relied upon only two circumstances which according to them were proved by the