JUDGMENT
M.F. Saldanha, J.
1. The appellant in this case, a tailor, who was resident alongwith various members of the joint family in a small building situated at village Kapil, Taluka-Karhad, Dist. Satara, was charged with having committed the murder of his wife Sahida. It was alleged that at about 8.30 a.m. on the morning of 6-4-1989, that the accused had inflicted a number of stab injuries principally around the neck area of deceased Sahida with a pair of scissors. Having regard to the fact that the injuries were several and that the blood vessels were ruptured Sahida died instantaneously. The brother of the accused who was at that time in the market, by name Sikandar Mulla was informed of the death of his sister-in-law and he thereupon sent his younger brother to verify the correctness of this news. On coming to know that Sahida had in fact been murdered, he lodged a complaint with the Police which is treated as the F.I.R. The Police thereafter proceeded to the spot, commenced their investigations and placed the accused under arrest. It is alleged that the clothes of the accused which were attached by the Police under a panchanama had certain blood stains on them. These clothes were sent for chemical analysis and the analysis discloses that the blood stains on the clothes of the accused were of ‘O’ group which happens to be the blood group of the deceased Sahida and not that of the accused. On completion of the investigation, the accused was charge-sheeted for an offence under section 302 I.P.C. The evidence in this case consists essentially of the depositions of the various members of the family, the brother Sikandar, the father Gulab Mulla, the mother Khudijabi, the two sisters-in-law Hajmatbi and Lailabai and some supportive evidence in the form of the depositions of the brother of the deceased Ismile Patel, the uncle of the deceased Gani Mohmad Patel and a neighbour Arjun Kumbhar. The prosecution had examined a large number of witnesses apart from the formal evidence of the panch, the doctor, the Police Officer etc. and the learned trial Judge even though he took congnizance of the fact that all the family members had turned hostile when examined before the Court, convicted the accused principally on the ground that there was sufficient evidence to establish his guilt. The learned trial Judge took note of one fact namely that the statements under section 164 Cr.P.C. had been recorded by a Special Executive Magistrate Shivaji Nalawade and that regardless of the witnesses having turned hostile, they were contradicted on the basis of the statements recorded by the learned Magistrate. The learned trial Judge has stated that obviously all these witnesses have initially attempted to lie in order to save a member of the family but that their statements recorded earlier before the learned Special Executive Magistrate do in fact represent the truth and that this material is capable of being relied upon. Apart from this the learned Judge has based his conviction on one very strong circumstance which he has held to have been established against the accused namely that the blood stains that were found on his clothes have on analysis indicated that they belong to the ‘O’ group which is the blood group of the deceased. The accused had put forward an explanation that he had been out of town in connection with his cattle business and that on returning he came to know about the unfortunate incident, that he rushed to the house and that he had embraced the body which explains how the blood of the deceased got on the clothes. It is necessary to record that the prosecution has attempted to establish that the accused was addicted to alcohol and that he used to do hard by any work and that he used to illtreat his wife for the purposes of extorting money from her with which to satisfy his addictions. The brother of the deceased Sahida has given evidence along these lines and he has also stated that he has presented the sister with a sewing machine and that she was doing tailoring work in order to earn money and to look after herself and her children and obviously the husband. Apart from this, there is a suggestion that Sahida was also doing small business in bangles to supplement her income. The learned trial Judge has placed reliance on these aspects of the evidence for the purposes of concluding that the accused was a person given to vices and that this was the cause of the hostility between the spouses and that this obviously explains the accused having lost his temper and assaulted the wife with the pair of scissors. The prosecution has also attempted to suggest, though it has not been established, that the accused suspected that his wife Sahida was carrying on an illicit affair with one Allauddin and that this was a possible cause for his fury. A lot of this material is in the realm of conjecture but it appears to have created a heavy prejudice in the mind of the learned trial Judge and accepting the remaining material, the accused was convicted for the offence punishable under section 302 of the I.P.C. The learned trial Judge awarded him a sentence of rigorous imprisonment for life and fine of Rs. 5,000/- in default rigorous imprisonment for six months. The present appeal assails the correctness of this conviction and sentence.
2. Mr. Shirodkar, learned Counsel appearing on behalf of the appellant has at the very outset pointed out to us that he seriously challenges the legal basis for the conviction. That the entire set of family members have turned hostile is a matter of record. That the statements of the mother Khudijabi and the two sisters-in-law Hajmatbi and Lailabi were recorded by the Special Executive Magistrate under section 164 of the Cr.P.C. is not disputed but in this regard Mr. Shirodkar draws our attention to one very important circumstance namely that this recording was done approximately two months after the incident. He emphasizes not so much so the delay, but the fact that these three witnesses have stated in their deposition before the Court that they were taken before the learned Magistrate by the Police and that they were made to give the statements implicating the accused under threat and coercion. It is Mr. Shirodkar’s contention that the delay apart, the statements recorded by the learned Special Executive Magistrate in these circumstances can be used for a very restrictive purpose and that the fundamental error committed by the learned trial Judge is that he has proceeded almost on the assumption that these statements can be regarded as evidence.
3. In this context Mr. Shirodkar has drawn our attention to the deposition of the Special Executive Magistrate Shivaji Nalawade as also to the transcript of the statements that are attributed to these three witnesses. Mr. Shirodkar points out that if as all a statement under section 164 of the Cr.P.C. has to be given some degree of credibility it is because of the requisite safeguards that are attached to the procedure prescribed for the recording of such a statement and he has demonstrated to us from the evidence of the Special Executive Magistrate that in the present case those safeguards had not been complied with. He has specifically illustrated that the Police had brought the witnesses there and the fact that they were very much around, destroys the voluntariness. The learned A.P.P. has sought to contend that these are minor blemishes and that they would not affect the value of the statements in question. Unfortunately a careful scrutiny of the record does indicate that the learned Counsel for the appellant is fully justified in attacking the value of the three statements because the learned Special Executive Magistrate had not scrupulously observed the safeguards which the law required of him to do.
4. Elaborating here, it is necessary to record that the principal reason for attaching a relatively high degree of credibility to statements recorded under section 164 of the Cr.P.C. is obviously because the authority who takes those statements down is a judicial authority and therefore, it is presumed that the material in question is relatively free of the possible blemishes which could be attributed to the statements recorded by a Police Officer. As learned Counsel has pointed out in this case, it is however the duty of the Court to scrutinize whether the requirements that must accompany those statements have in fact been complied with. Two of these requirements are significant, the first of them being that the learned Magistrate is required to ensure the aspect of voluntaryness in its entitity which could presuppose apart from questioning the witness as to whether the statement is voluntary, that the authority is satisfied that all possible coercive or inducive pressures are absent. In cases where confessions are recorded, it is invariably the practise to ensure that the investigating authority’s influence is not is there at all and in case such as the present one the absence of the Police over a period of time is undoubtedly necessary. It is also customary in these situations to defer the recording of a statement by some time in order to give the witness an opportunity of reflecting over the decision and more importantly, so that any pressures that might have been in play are completely neutralized. Apart from this it is also not only a healthy, but a necessary practice to ensure that the safeguards that have been taken by the Magistrate are duly recorded as otherwise, it may be difficult for a Court at a later point of time to merely accept the oral statement of the Magistrate from the witness box that he had complied with the safety requirements of law. We have applied these tests while scrutinizing the statements under section 164 of the Cr.P.C. that are the subject matter of the controversy in this appeal, and we have found that the statements and the evidence is wanting in this regard. The point of time when the statements were recorded is of some significance. The learned A.P.P. has contended that the witnesses though family members came out with the truth at the earliest point of time and that the investigating authorities apprehended that sentiment, emotion and family feelings would possibly overcome their duty to tell the truth at a later stage and that consequently they would resile from the statements and that this was the reason that the witnesses were taken to the Magistrate. The concerned witnesses however have stated before the Court that their subsequent statements under section 164 of the Cr.P.C. were under duress. It is for this reason that they have totally and completely resiled from the statements in question. On the basis of the record as it exists, it would be difficult for us to hold as the learned trial Judge has done, that the witnesses have committed perjury and to this extent therefore it would be necessary that the subsequent action ordered against the witnesses will also have to be dropped.
5. Mr. Shirodkar also points out to us that as far as P.W. 4 Sikander is concerned, since he has stated before the Court that certain portions of his initial complaint which was treated as the F.I.R. namely the reference to the bad conduct of the accused had never been mentioned by him to the Police that similar action has been directed against him. In the view that we are taking in this appeal to our mind it would be unnecessary to proceed with any such steps.
6. The learned A.P.P. has submitted before us that the evidence with regard to the find of blood stains on the clothes of the accused which match the blood group of the deceased is a circumstance that is strong enough to sustain the conviction. She submits that there was no other rational explanation for the blood of the deceased to have come on the clothes of the accused unless he was responsible for the commission of the offence and that the explanation given by him is manifestly false. In the first instance, the submission advanced by Mr. Shirodkar is that assuming the circumstance is held against the accused that it is a lone solitary circumstance with virtually no other material whatsoever to support the theory that he was the assailant and under these circumstances it would be tantamount to sustaining a conviction for murder on the basis of this single circumstance alone. The law with regard to circumstantial evidence is well crystallised and it has been consistently laid down that in such cases a chain of circumstances or the web of circumstances must be so conclusive both individually and collectively to point to one and only one hypothesis namely the guilt of the accused. A single circumstance cannot form either a chain or web and therefore, cannot form the basis of a conviction on the ground of circumstantial evidence. Mr. Shirodkar relies on a decision of the Supreme Court in the case of S.P. Bhatnagar v. State, reported in 1977 Criminal Law Journal page 567, wherein this proposition has been enunciated. Quite apart from this, he advances a submission that the relationship between the accused and the deceased was that of husband and wife, admittedly they were residing together and even assuming there was considerable amount of hostility or skirmish in their day to day existence that where an incident of this type took place if as stated by accused that he returned home and found his wife lying in a pool of blood, there is every reason to accept that he would have touched the body and some of the blood would have got on his clothes. We do not require to examine the validity or otherwise of this explanation but suffice it to say that it is a plausible one.
7. Having regard to the state of the record, on a very careful consideration of the material adduced before the trial Court and on an examination of the position in law, it would be impossible to sustain the findings arrived at by the learned trial Judge. The appeal consequently succeeds. The conviction and sentence recorded by the trial Court are set aside. It is directed that the appellant who is in custody be set at liberty forthwith if not required in connection with any other offence. Fine, if paid, is directed to be refunded.