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2. Parshi Motya Valvi, the deceased was the brother of the appellant and they were residing together. Motibai, P.W. 4 is the widow of Parshi Motya Valvi. Appellant was married to one Daharibai Who was subsequently divorced. Appellant was keen to contract second marriage and was persuading his brother deceased Parshi Motya to arrange for cash, if necessary, by sale of some cattle heads belonging to the family, but the deceased was putting off the appellant under one pretext or the other and this reluctance on the part of deceased Parshi Motya to provide necessary cash to enable appellant to contract second marriage is proffered by the prosecution as a motive for the crime. On the night of 1st Oct. 1970 both the appellant and the deceased Parshi Motya consumed two bottles of liquor and then took dinner and decided to go in search of extra helping of liquor which led them to the house of Bhikjya P.W. 8 residing at a distance of three miles from the house of the deceased. When both the brothers were at the house of Bhikjya, original accused No. 2 Bhamta is alleged to have joined them. Two bottles of liquor were purchased from Bhikjya and one was consumed at the house of Bhikjya and thereafter both the brothers and original accused No. 2 Bhamta left the house of Bhikjya together during the night. In the early hours of morning of 2nd Oct. 1970 the appellant alone returned to the house and on a query by Motibai, P.W. 4, the widow of the deceased, as to where her husband had gone appellant was found to be evasive in his reply. Motibai thereupon contacted Bhikjya who acquainted her with the events of the previous night. She contacted her father who was staying at Kalipada and Sarpanch Leta, P.W. 3. Leta, P.W. 3 accompanied by Fatya, P.W. 5 and Bhongya, P.W. 7 visited the house of deceased Parshi Motya where appellant was present and he was questioned about the whereabouts of deceased parshi Motya when appellant is alleged to have made some extra-judicial confession. Thereupon Police Patil Kutrya, P.W. 11 was contacted and on his questioning the appellant dead body of deceased Parshi Motya was recovered from the side of a nala. Immediately thereafter Police Patil Kutrya went to Dhengaon Police Station and gave information of the offence. An offence was registered and PSI, Mr. Patil, P.W. 14 commenced investigation. Appellant and Bhamta original accused No. 2 were charge-sheeted for having committed offences under Sections 302 and 201 read with Section 34 of the Indian Penal Code.

7. On these established circumstances the High Court was of the opinion that no other view is possible except that the appellant was responsible for the murder of the deceased.

8. We propose to examine each one of the circumstances relied upon by the High Court in the order in which they have been set out.

9. The first and the second circumstances relied upon by the High Court can be examined together. It is alleged that the deceased and the appellant left their house together around 10 p.m. on 1st Oct. 1970 on their way to the house of Bhikjya in search of liquor. There is evidence of Bhikjya, P.W. 8 to that effect and it has been accepted by both the Courts. Ordinarily, when a person is accused of committing murder of another, the fact that the accused and the deceased were last seen alive in company of each other and the failure of the accused to satisfactorily account for the disappearance of the deceased is considered a circumstance of an incriminating character. According to Bhikjya, P. W 8 the appellant and deceased Parshi Motya came to his house around midnight time and asked for two bottles of liquor. But further according to Bhikjya, at about that time accused No. 2, Bhamta also joined them. According to Bhikjya all the three, i.e. deceased, appellant and Bhamta left his house together. Undoubtedly thereafter deceased was not seen alive by anyone but two persons were in company of the deceased, viz., appellant and Bhamta when they left the house of Bhikjya. Now, Bhamta was the co-accused. This very circumstance has not been found to be of some importance against Bhamta. To some extent the circumstance ceases to be of an incriminating character because not only the appellant should account for the disappearance of the deceased but simultaneously on evidence of Bhikjya, original accused No. 2 Bhamta would also be required to explain the same circumstance. Not only was Bhamta acquitted in respect of the offence, the State even did not choose to question his acquittal though it did prefer appeal against the acquittal of the present appellant. In this background the fact that deceased was seen last alive in the company of the accused would cease to be a circumstance of an incriminating character.

The High Court uses the pronoun 'I' at two places. We, with the assistance of both the learned Counsel proficient in Marathi language read the original statement. The reading of the statement by the High Court appears to be far-fetched. Even the High Court is conscious of it when it observes in para 20 of the judgment that the authorship of the act of concealment of the spear would be implied and would be none other than the appellant, and then observes that this circumstance which is one of the strongest links stands duly established. The Marathi word 'Me' is to be found at the commencement of the statement followed by the wholly inadmissible portion and then there is reference to the place where the spear was hidden. The Marathi expression 'Thevalela' would more appropriately be translated has been kept and not 'I have kept' because in the case of 'Have kept it,' the Marathi word would be 'Thevala'. It may be that being not conversant with Marathi language our translation may not be appropriate but if this recovery of bloodstained spear is the only important circumstance of an incriminating character established in this case and if the authorship of concealment is not clearly borne out by cogent and incontrovertible evidence but as the High Court observes left to be inferred by implication, we have considerable hesitation in placing implicit reliance upon it. More so when it is a confessional statement which becomes admissible under Section 27 of Evidence Act though made in the immediate presence of a Police Officer. The recovery of a bloodstained spear becomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the appellant who gave information leading to its discovery was the person who concealed it. And in this case Bhamta was another co-accused. The appellant may have only the knowledge of the place where it was hidden. To make such a circumstance incriminating it must be shown that the appellant himself had concealed the bloodstained spear which was the weapon of offence and on this point the language used in the contemporaneous record Ext. 28 is not free from doubt and when two constructions are possible in a criminal trial, the one beneficial to the accused Will have to be adopted. Therefore, this linchpin of the prosecution case ceases to provide any incriminating evidence against the appellant.