ORDER This appeal is by the State against the judgment dated 14-10-1968 passed by the Additional Sessions Judge at Panjim in sessions case No. 14/68 by which he acquitted the respondent herein holding that the charge for the offence under Section 302, I.P.C. framed against him was not proved. 2. The case for the prosecution was this :- The respondent herein Jose Gaspar Noronha is a resident of Cortalim. One Sebastiao Gama was also residing in that village. The house in which Sebastiao Gama was residing is at a distance of about 5 metres from the house of the respondent. On 30th August, 1966 at about 6.30 p.m. or 7.00 p.m. while P.Ws. 2, 5, Sebastiao Gama and Cruz were in the verandah of Sebastiao Gama house the respondent returned from is work. While coming he brought a tender banana tree and threw it in the balcony of Sebastiao Gama's house. Sebastiao Gama picked up that tree and went towards the back of his house in which direction the respondent was going. P.W. 4 whose house is near the houses of Sebastiao Gama and the respondent was then cutting fire-wood near her house. She found the respondent hitting Sebastiao Gama on head with bamboo stick (M.O. 1) soon after Sebastiao Gama threw the banana tree in front of the house of the respondent, picking it up from in front of his (Sebastiao Gama's) house. Sebastiao Gama fell down on the ground as soon as he received the blow with stick on his head and became unconscious. Seeing it P.W. 4 raised cries. On hearing those cries P.Ws. 1, 2, 5 and Cruz went to the place where Sebastiao Gama was lying, knew from P.W. 4 that the respondent had injured with stick on the head of Sebastiao Gama, found Sebastiao Gama unconscious, carried him to his house and put him there. P.Ws. 2 and 5 had seen the respondent standing holding a stick at a distance of about 4 metres from Sebastiao Gama when they had seen Sebastiao Gama lying unconscious on the ground near the back of his house. P.W. 1 went to Cortalim police outpost soon after putting Sebastiao Gama in his house and lodged a complaint there. Police brought P.W. 6, doctor, to the house of Sebastiao Gama by about 7.30 p.m. on the date of the incident. P.W. 1 went to Cortalim police outpost soon after putting Sebastiao Gama in his house and lodged a complaint there. Police brought P.W. 6, doctor, to the house of Sebastiao Gama by about 7.30 p.m. on the date of the incident. P.W. 6 saw the injured, found swelling on his head and advised to take the injured at once to Margao Hospital. The injured was then taken to Margao Hospital and there he died by 12 O'clock in the night. P.W. 8, investigation officer, at about 1.00 a.m. on 31st August, 1966, came to know that one injured person from Cortalim who was admitted in the hospital at Margao had died. At about 8.30 a.m. on 31st August 1066 while he (P.W. 8) was preparing to go to Margao, H.C. of the Cortalim police outpost came to him (P.W. 8) along with the respondent and reported that the respondent had murdered Sebastiao Gama, P.W. 8 then gave instructions for the detention of the respondent in Vasco police station and went to Cortalim. At Cortalim P.W. 1 complained to him (P.W. 8) about the murder of Sebastiao Gama. He recorded his (P.W. 1's) statement and it is exhibit (P. 2). After recording Exh. P-2, P.W. 6 went to Margao hospital and found there the dead body of Sebastiao Gama. He held inquest and prepared Exh. P. 6, panchnama. He handed over the dead body for post-mortem examination and returned to Cortalim. He examined 10 witnesses there and seized M.O. 1, stick, and the banana tree on mother of the respondent producing them. Exh. P. 4 is the panchnama for the seizure of M.O. 1 and the banana tree. From Cortalim P.W. 8 returned to Vasco Police station and registered the crime. On 7-9-1966 P.W. 8 received post-mortem report. It was revealed in post-mortem examination that the deceased had died due to head injury. P.W. 1 (who is examined in the trial Court as P.W. 3 also) identified the corpse to be of Sebastiao Gama at the time of inquest. P.W. 9 had conducted autopsy on 31-8-1966 on the corpse of Sebastiao Gama at Margao. The respondent was shouting and crying while he was in police custody, so he was sent to hospital. The Magistrate later on sent the respondent to mental hospital. P.W. 9 had conducted autopsy on 31-8-1966 on the corpse of Sebastiao Gama at Margao. The respondent was shouting and crying while he was in police custody, so he was sent to hospital. The Magistrate later on sent the respondent to mental hospital. P.W. 7, doctor at the mental hospital, kept the respondent in that hospital giving treatment as he was suffering from schizophrenia (a sort of mental disease). 3. The respondent's case was that he had not thrown banana tree in the verandah of Sebastiao Gama's house, that he had not injured Sebastiao Gama and that P.Ws. 1, 2 and 4 are on inimical terms with him. 4. The learned Additional Sessions Judge, after trial, came to the conclusion that the respondent had injured Sebastiao Gama on head with a stick and due to it he had died but he acquitted him holding that at the time of causing the inquiry, due to unsoundness of mind he (respondent) was incapable of knowing the nature of the act. 5. It is contended by the learned Public Prosecutor that the trial Court was wrong in considering that the respondent was of unsound mind at the time of causing injury with stick on the head of Sebastiao Gama and that it should have convicted and sentenced the respondent for the offence punishable under Section 302, I.P.C. 6. On behalf of the respondent it is urged that the trial Court was not right in coming to the conclusion that it was proved that the respondent had injured Sebastiao Gama on head with stick. 7. I shall first see whether the trial Court was right in holding that the respondent had caused the fatal injury to the deceased Sebastiao Gama. 8. It appears from the record that in all 9 witnesses were examined for the prosecution but in fact only 8 witnesses were examined on behalf of the prosecution. Complainant, Manuel Fernandes was examined twice, once as P.W. 1 and once as P.W. 3. Out of the witnesses examined on behalf of the prosecution P.Ws. 6, 7 and 9 are doctors. P.W. 8 is investigation officer. P.W. 1 when examined as P.W. 3 spoke only about his being taken to the hospital at Margao to hold inquest panchanama on Sebastiao Gama's corpse. He filed Exh. P. 6 inquest panchanama. It is dated 31-8-1966. The evidence of P.Ws. 6, 7 and 9 are doctors. P.W. 8 is investigation officer. P.W. 1 when examined as P.W. 3 spoke only about his being taken to the hospital at Margao to hold inquest panchanama on Sebastiao Gama's corpse. He filed Exh. P. 6 inquest panchanama. It is dated 31-8-1966. The evidence of P.Ws. 3 and 6 to 9 is of no use to the prosecution in establishing that the respondent had injured Sebastiao Gama on head. The only witnesses whose evidence is relevant in connection with the point whether the respondent had injured on the head Sebastiao Gama are P.Ws. 1, 2, 4 and 5. P.W. 4 has given direct evidence and P.Ws. 1, 2 and 5 have given circumstantial evidence P.W. 4 has stated that her house is close to the houses of the respondent and the deceased, that on 30th August, 1966 at about 6 p.m. she was cutting firewood near her house, that then she found the respondent coming towards the house of Sebastiao Gama and throwing a banana tree into the balcony of Sebastiao Gama's house, that soon after the tree was thrown Sebastiao Gama picked it up and went towards the house of the respondent and threw it in front of his (respondent's) house, that on it the respondent hit Sebastiao Gama with bamboo stick on head, that the stick was in the hand of the respondent, that Sebastiao Gama fell down and she raised alarm, that on hearing it P.W. 5 and another came to the spot and that the respondent used to work during day time but was shouting and making noise during nights. The evidence of P.W. 4 does not appear trustworthy for various reasons. The respondent said in his statement under Section 342, Criminal P.C. that P.Ws. 1, 2 and 4 are on inimical terms with him. P.W. 4 admitted in her deposition that she was not on talking terms with the respondent because during nights he was abusing and threatening to beat her and that he was doing like that for about 5 or 6 years prior to 30-8-1966. Exh. P. 2 is said to be the complaint given by P.W. 1 on 31-8-1966 to P.W. 8 about the murder of Sebastiao Gama. In the complaint name of P.W. 4 is nowhere mentioned. Exh. P. 2 is said to be the complaint given by P.W. 1 on 31-8-1966 to P.W. 8 about the murder of Sebastiao Gama. In the complaint name of P.W. 4 is nowhere mentioned. P.W. 1 deposed in the trial Court that on hearing the cries of P.W. 4 he went to the scene of the offence and came to know from her (P.W. 4) that the respondent had injured with stick Sebastiao Gama. In Exh. P. 2 he said that on hearing some disturbance he went to the scene of the offence and there he found P.Ws. 2, 5 and one Cruz. It is mentioned in Exh. P. 2 that after Sebastiao Gama was carried into his house and was put there P.W. 1 inquired P.Ws. 2, 5 and Cruz and came to know that the respondent had injured Sebastiao Gama. It is found in the evidence of the investigation officer, P.W. 8, that he had come to know about the death of Sebastiao Gama first at 1.00 a.m. on 31st August, 1966 and then at 8.30 a.m. on that date. At 8.30 a.m. on 31st August 1966, according to P.W. 8, the respondent was brought to him by Cortalim outpost Head Constable police and that then that Head Constable of police had told him that the respondent had murdered Sebastiao Gama. P.W. 8 did not register the crime and issue first information report when he received information either at 1 a.m. or at 8.30 a.m. on 31st August, 1966. There is room to presume that he suppressed the informations about commission of the offence received by him earlier to his recording Exh. P. 2 statement of P.W. 1, at Cortalim at about 9 a.m. on 31-8-1966. If P.W. 4 had witnessed the incident of the respondent injuring Sebastiao Gama on head with stick and she had told about it to P.W. 1 her name would have appeared in Exh. P. 2. The story given in Exh. P. 2, as noted above, is quite different from the story which was given in the trial Court. When exactly the complaint Exh. P. 2 was sent to Magistrate's Court and when it reached there is not known. It is not possible from the record to make out that occurrence report was sent to Court in time as per the provision of Section 157. When exactly the complaint Exh. P. 2 was sent to Magistrate's Court and when it reached there is not known. It is not possible from the record to make out that occurrence report was sent to Court in time as per the provision of Section 157. Criminal P.C. P.W. 1, who was examined as P.W. 3 also was present when inquest is said to have been held on the corpse of Sebastiao Gama at Margao Hospital on 31-8-1966. In the inquest report also the name of P.W. 4 is not mentioned. In the inquest report there should be statements of the witnesses examined by the police at the inquest. It appears that no witness was examined at the inquest. It is not mentioned in the quest report that injury with stick was caused on the head of Sebastiao Gama. Under Section 174, Criminal P.C. P.W. 8 was bound to investigate at the time of Exh. P. 6 (inquest panchanama) about the apparent cause of death and state in Exh. P. 6 the injuries found on the corpse and the manner in which and with what weapon they were caused. The investigation in this case was quite perfunctory. When in the first information report and in the inquest report the name of P.W. 4 is not mentioned, when the informations received prior to complaint Exh. P. 2 about the death of Sebastiao Gama have been suppressed, when P.W. 4 admits that she is not on talking terms with the respondent and when no witness other than P.W. 4 has given direct evidence it cannot be held that the evidence of P.W. 4 is trustworthy and that the respondent injured on the head of Sebastiao Gama with stick. The doctor P.W. 9 who conducted autopsy on Sebastiao Gama's corpse has no doubt stated in chief examination that one haematoma with slight elevation and bluish in colour was found on the left tempero-parietal region and due to that injury Sebastiao Gama had died but he said in cross-examination that that injury could be caused due to fall also with force on very hard substance. The deceased sebastiao Gama was 50 years old when he died. It is found in the evidence of P.W. 4 that since about 15 days prior to the incident it was raining and that there were three uneven steps to go to the house of the respondent. The deceased sebastiao Gama was 50 years old when he died. It is found in the evidence of P.W. 4 that since about 15 days prior to the incident it was raining and that there were three uneven steps to go to the house of the respondent. Under these circumstances the possibility of Sebastiao Gama falling down and receiving injury on head cannot be ruled out. P.Ws. 1, 2, 4 and 5 who said that Sebastiao Gama was found fallen on the ground behind his house, near the house of the respondent, have not stated which portion of his body touched the ground first when he fell and where exactly he fell. What was the exact time of death of Sebastiao Gama and how many hours before his death he was injured has not been proved by the prosecution. Even though it is alleged by the prosecution that at Margao Hospital Sebastiao Gama was treated and he died in that hospital the doctor that gave the treatment and the doctor who declared Sebastiao Gama dead have not been examined. P.W. 6 Rural Medical Officer who says that he had examined Sebastiao Gama at his (Sebastiao Gama's) house on 30-8-1966 at about 7 or 7.30 p.m. and had found swelling on his (Sebastiao Gama's) head has been stated the age of that injury at the time of his examining it. Prosecution alleges that since the time of receiving injury on the head. Sebastiao Gama was unconscious and he was unconscious till his death but no doctor has come into the witness box to swear that till death Sebastiao Gama was unconscious. It is found in the evidence of P.W. 6 that when he saw Sebastiao Gama, Sebastiao Gama was or seemed to be unconscious. It cannot be said with certainty on the basis of the evidence of P.W. 6 that when P.W. 6 examined Sebastiao Gama Sebastiao gama was unconscious. The facts that the age of the injury found on the head of Sebastiao Gama, the exact time of death of Sebastiao Gama and his mental condition till his death have not been proved also make the evidence of P.W. 4 suspicious. 9. P.W. 1 who is complaint in this case has only said that hearing shouts of P.W. 4 he went to the spot where Sebastiao Gama was lying and carried him into his house with the help of P.Ws. 9. P.W. 1 who is complaint in this case has only said that hearing shouts of P.W. 4 he went to the spot where Sebastiao Gama was lying and carried him into his house with the help of P.Ws. 2 and 5 and that he came to know from P.W. 4 that the respondent had injured with stock Sebastiao Gama. It has been noted above that evidence given by P.W. 1 in the trial Court is not in accordance with complaint Exh. P. 2 given by him. P.W. 1 has not stated that he had seen the respondent at the scene of the offence. P.W. 1's evidence is untrustworthy. The evidence of P.Ws. 2 and 5 is to the effect that while they were in the verandah of Sebastiao Gama's house the respondent came and threw a tender banana tree in that verandah, that Sebastiao Gama picked up that tree and went behind the respondent towards the back of his (Sebastiao Gama's) house, that two or three minutes after it, hearing cries of P.W. 4 they went towards the back of Sebastiao Gama's house and found Sebastiao Gama lying there on the ground by them Sebastiao Gama was brought by them into his house. They added that they had seen the respondent standing at a distance of about 4 metres from Sebastiao Gama, holding a stick. P.W. 5 said that P.W. 4 had told him that the respondent had hit Sebastiao Gama on head with stick. P.W. 5 admitted that he and his relations are not on talking terms with the respondent. P.Ws. 2 and 5 are no neighbours of the respondent or sebastiao Gama. The house of P.W. 5 is at a distance of about 200 metres from the house of the respondent or the scene of the offence. P.W. 2 says that while passing the house of Sebastiao Gama he had entered the house of Sebastiao Gama as it began to rain. In cross-examination P.W. 2 did not admit the suggestion that he was on inimical terms with the respondent. The respondent said in his statement under Section 342, Criminal P.C. that P.W. 2 was not on talking terms with him. In cross-examination P.W. 2 did not admit the suggestion that he was on inimical terms with the respondent. The respondent said in his statement under Section 342, Criminal P.C. that P.W. 2 was not on talking terms with him. P.W. 2 did not state that P.W. 4 had hold that she had witnessed the respondent injuries Sebastiao Gama on head with stick but P.W. 5 says that on his enquiry P.W. 4 had stated that the respondent had hit with stick Sebastiao Gama on head. Even though It is said that one Cruz was present at he scene of the offence he has not been examined. No neighbour of Sebastiao Gama or respondent was examined on behalf of the prosecution excepting P.W. 4 who is on inimical terms with the respondent. It is in the evidence of P.W. 1 that his house is at a distance from the house of the respondent even though it is in the same locality. P.W. 2 is the attestor of panchnama Exh. P. 4 under which it is said that M.O. 1 stick and the banana tree were seized. In Exh. P. 4 it is mentioned that at the house of Dr. Curchorkar at Cortalim another of the respondent had produced M.O. 1 and the banana tree. P.W. 2 says that he cannot say whether that statement in Exh. P. 4 is correct or incorrect. He deposed in the trial Court that he and another panch went to the house of the respondent and there stick M.O. 1 was seized and that under Exh. P. 4 only the banana tree was seized. P.W. 1 deposed that on 30-8-1966 only, soon after the incident, he had gone to police outpost at Cortalim and had lodged complaint. What happened to that complaint is not known. That complaint has been kept away from the court and complaint Exh. P. 2 recorded on 31-8-1966 was produced in Court as the first information report. No panch who attested the inquest report. Exh. P. 6, has been examined. The entire prosecution story is doubtful. The evidence of P.Ws. 1, 2, 4 and 5 is highly suspicious and it cannot be held that the respondent had caused the fatal injury to the deceased. No panch who attested the inquest report. Exh. P. 6, has been examined. The entire prosecution story is doubtful. The evidence of P.Ws. 1, 2, 4 and 5 is highly suspicious and it cannot be held that the respondent had caused the fatal injury to the deceased. I am unable to agree with the opinion of the trial Court that the prosecution succeeded in proving that the respondent had caused the fatal injury to the deceased. Appreciation of evidence by the trial Court is not at all satisfactory. The reasons for believing the evidence of P.Ws. 1, 2, 4 and 5 have not been given by the trial Court. 10. The learned Additional Sessions Judge's opinion that the respondent was of unsound mind on 30-8-1966 at about 6.30 or 7 p.m. does not appear to be correct. The respondent himself had not specifically contended that he was of unsound mind on that day at that time. P.W. 7, medical officer at Mental Hospital, has no doubt stated that from 10.30 a.m. of 3-9-1966 for some months the respondent was given treatment for sehizophrenia but he (P.W. 7) has not stated that prior to 3-9-1966 the respondent was suffering from that disease. P.W. 7 clearly said that he was not in a position to say as to what was the mental condition of the respondent on 30-8-1966. In the trial Court P.W. 7 heard the facts of the case and said that in view of those facts he felt that the respondent might not have been of sound mind at about 6.30 or 7 p.m. on 30-8-1966. That opinion of P.W. 7 is not in his capacity as an expert and no importance can be given to it. It is only his presumption. The learned trial Judge, on the basis of the following facts came to the conclusion that on 30-8-1966 at about 6.30 or 7 p.m. the respondent was of unsound mind :- (1) P.W. 7 said that he feels that the respondent might have been of unsound mind on 30-8-1966 at 6.30 or 7 p.m. (2) Even though the respondent was not on inimical terms with the deceased he threw banana tree in the verandah of his house. (3) The respondent did not go away from the scene of offence after injuring the deceased, but stood there holding a stick for some time and then moved slowly towards his house. (4) The respondent as per the statement of P.W. 2 did not offer himself for arrest at first. (5) The respondent was shouting during the few hours in which he was in police custody. (6) The respondent was shouting at nights though he was working during day times. It has been noted above that the evidence adduced about the presence of the respondent at the scene of the offence is untrustworthy. The house of the respondent is just by the said of the scene of the offence so even if he was present there holding a stick it cannot be concluded that he had injured the deceased on head with stick. It is clear from the statement given by the respondent in the trial Court that he shouted while he was in police custody because he was kept in the lock-up for the first time. The reasons given by the learned trial Judge are not at all sufficient to say that on 30-8-1966 the respondent was of unsound mind. 11. The guilt of the respondent for any offence is not established in this case. The trial Court incorrectly holding that the respondent was insane on 30-8-1966 and that he had caused fatal injury to Sebastiao Gama acted under Section 471, Criminal P.C. The respondent has been incorrectly detained in safe custody. The respondent was produced in this Court yesterday. He is not of unsound mind. He answered correctly to all the questions put by the Court. The appeal is fit to be dismissed as it is not proved that the respondent committed any offence. The appeal is dismissed. The respondent be set at liberty at once. Appeal dismissed.