JUDGEMENT The appellant Panchappa Muttappa has preferred this appeal aggrieved by his conviction and sentence for the offence under Sec. 302, I.P.C. The learned Sessions Judge at Panjim tried the appellant for the offence under Section 302, I.P.C., found him guilty of that offence and sentenced him to imprisonment for life. The contention of the appellant is that he has been wrongly convicted and that his guilt is in no way proved. 2. The case for the prosecution is this :- The appellant and one Selveray alias Annasi were residing in one house at Selauli. They were labourers. On 13-11-1968 at about 2 p.m. they left their house and went on intoxicating themselves at various places. On that date they went to the house of P.W. 4 in the evening, asked P.W. 4 to give food and behaved in quarrelsome manner. P.W. 5 met them there. At about 9 p.m. they left the house of P.W. 4. On 14-11-1968 they drank toddy in the shops of P.Ws. 3 and 10 and by 9 a.m. on that date they reached the rivulet at Bombad, Sanguem. In that rivulet while Selveray alias Annasi was in the water the appellant hit him with stones. P.W. 1 saw the appellant hitting with stones. He went and told about it to P.W. 3. Later on P.Ws. 1, 2, 8 and 16 went to the rivulet but could not find there Selveray alias Annasi. P.Ws. 2 and 8 found some dragging marks and signs of fight near the rivulet. The appellant was seen at the rivulet by P.W. 1 and P.W. 16 when they went there at about 9.30 a.m. on 14-11-1968. On enquiry by P.W. 16 as to where was Selveray alias Annasi the appellant told him that he (Selveray alias Annasi) had gone and questioned him (P.W. 16) saying as to what he had to do anything with him (Selveray alias Annasi). P.W. 2 after seeing at the rivulet signs of dragging and fighting went to police station and gave complaint Ext. P3 on 14-11-1968 at about 2.40 p.m. Police took up investigation, arrested the appellant and recovered at his instance the dead body of Selveray alias Annasi on 14-11-1968 at about 10.30 p.m. from the rivulet at Bombad. P.W. 2 after seeing at the rivulet signs of dragging and fighting went to police station and gave complaint Ext. P3 on 14-11-1968 at about 2.40 p.m. Police took up investigation, arrested the appellant and recovered at his instance the dead body of Selveray alias Annasi on 14-11-1968 at about 10.30 p.m. from the rivulet at Bombad. On 15-11-1968 at the instance of the appellant, police found the place where there was a fight and where there were some dragging marks near the rivulet. A bush shirt was found at the rivulet on 14-11-1968. There were blood stains on it. The dead body of Selveray alias Annasi was sent for post-mortem examination and the doctor P.W. 9 after conducting autopsy on it found that Selveray alias Annasi had died due to shock about 18 to 24 hours prior to autopsy due to the injuries caused to him with blunt weapons. Photographs of the scene of offence etc. were taken and charge sheet was filed after completing the investigation. 3. The appellant admitted that he and the deceased were living in one house and that he was in the company of the deceased on 13th and 14th November, 1968, but he contended that some time after 5 a.m. on 14-11-1968 he parted from the deceased and he did not commit the offence. 4. The appellant contends that he has been wrongly convicted and sentenced. 5. The point for determination is whether the learned Sessions Judge was right in holding that the guilt of the appellant for the offence of murder was proved. 6. It is not contended on behalf of the appellant that Selveray alias Annasi did not die. The evidence of P.W. 9, doctor, who conducted autopsy on the corpse of Selveray alias Annasi on 15-11-1968 found on it injuries caused with blunt weapons like stones and opined that Selveray alias Annasi had died due to shock due to the injuries caused to him. 7. To establish that it is the appellant that had caused the fatal injuries to the deceased, the prosecution adduced direct evidence, circumstantial evidence and evidence about knowing the scene of offence and recovering the corpse of Selveray alias Annasi at the instance of the appellant. 8. Direct evidence in this case has been given by P.W. 1 only. 7. To establish that it is the appellant that had caused the fatal injuries to the deceased, the prosecution adduced direct evidence, circumstantial evidence and evidence about knowing the scene of offence and recovering the corpse of Selveray alias Annasi at the instance of the appellant. 8. Direct evidence in this case has been given by P.W. 1 only. His evidence is that at about 9 a.m. 4 months prior to 27-2-1969 he had been to the rivulet at Bombad, that he had been there to see whether any fish were caught, that he was catching fish in that rivulet fixing 'kul' in it, that when he went to the rivulet he found there the appellant hitting someone with stones, that the person whom the appellant was hitting had fallen into the rivulet and was making some movements as if he was alive, that due to fear he (P.W. 1) went away from the rivulet and told the mother of P.W. 2 that the appellant was hitting someone, that later on he along with his son and Francisco (P.W. 16) went to the rivulet by 9.30 or 10 a.m. and showed the scene of offence to them, that they could not find there the person whom the appellant was injuring, that some blood marks were found on the margin of the river, that they found the appellant coming from the water, that on being questioned by Francisco (P.W. 16) as to where was the person who was with him (appellant) he (appellant) said, "Why do you want to know ? He has already gone" and that after replying in that manner the appellant went away towards mines. In cross-examination P.W. 1 said that he was beaten by the Police. It is to be considered whether the evidence of P.W. 1 can be believed. Why P.W. 1 was beaten by the police he did not state. It is quite possible that to give evidence against the appellant P.W. 1 was beaten by the police. The time of death of Selveray alias Annasi according to the prosecution is between 9 and 10 a.m. of 14-11-1968. The doctor P.W. 9 after conducting autopsy on the corpse of Selveray alias Annasi at about 4 p.m. on 15-11-1968 opined that Selveray alias Annasi had died about 18 to 24 hours prior to autopsy. The time of death of Selveray alias Annasi according to the prosecution is between 9 and 10 a.m. of 14-11-1968. The doctor P.W. 9 after conducting autopsy on the corpse of Selveray alias Annasi at about 4 p.m. on 15-11-1968 opined that Selveray alias Annasi had died about 18 to 24 hours prior to autopsy. If the time of death given by P.W. 9 is considered correct it would be either 4 p.m. or 10 p.m. of 14-11-1968. The time of death given by P.W. 9 does not tally with the time of death given by P.W. 1. There is absolutely no reason to say that P.W. 1 who according to his evidence only was beaten by the police has spoken the truth. P.Ws. 2, 3, 8 and 16 have been examined to strengthen the evidence of P.W. 1. P.W. 3 is the mother of P.W. 2. She said that on 14-11-1968 at about 9 a.m. P.W. 1 told her that the appellant was beating someone with stones at the rivulet and that she told about it later on to P.W. 2 and P.W. 2 went to the rivulet. When the time of death of Selveray alias Annasi is not proved to be between 9 and 10 a.m. of 14-11-1968 the evidence of P.W. 3 that P.W. 1 told her at 9 a.m. on that day that the appellant was beating Selveray alias Annasi cannot be considered correct. Even though P.W. 3 says that P.W. 1 had told her that the appellant was beating "someone" it is stated by P.W. 2 that P.W. 3 had told him that P.W. 1 told her (P.W. 3) that the appellant was hitting a 'ganti'. It is stated by P.W. 2 that on hearing from P.W. 3 that P.W. 1 told her that the appellant was hitting a 'ganti' with stones in the rivulet he went to the rivulet along with P.W. 8 and P.W. 1 and at the rivulet he saw bloodstains and bush coat floating. He further said that he had seen some dragging marks also at the rivulet. P.W. 1 did not state that he accompanied P.W. 2 to the rivulet. It has also not been stated by P.W. 1 that he found dragging marks at the rivulet. He further said that he had seen some dragging marks also at the rivulet. P.W. 1 did not state that he accompanied P.W. 2 to the rivulet. It has also not been stated by P.W. 1 that he found dragging marks at the rivulet. P.W. 2 has said that after 11 a.m. on 14-11-1968 he had been to the rivulet but P.W. 1 said that he had been to the rivulet about 9.30 a.m. or 10 a.m. for a second time on 14-11-1968. P.W. 8 said that he and P.W. 2 went to the rivulet and found there dragging marks and signs of some fight. He did not state that P.W. 1 had come to the rivulet with him and P.W. 2. P.W. 2 did not state that signs of fighting were found at the rivulet. No doubt P.W. 8 said that P.W. 1 told him that the appellant had hit someone with stones but he did not clarify as to when and where he had told him like that. About P.W. 1 telling P.W. 8 that the appellant had hit someone with stones P.W. 1 did not state. P.W. 16 is Francisco, who is said to have gone to the scene of offence at about 9.30 or 10 a.m. along with P.W. 1 on 14-11-1968. In view of the fact that the time of death of Selveray alias Annasi does not appear to be at about 9 a.m. on 14-11-1968 the evidence of P.W. 16 that he went with P.W. 1 at about 9.30 or 10 a.m. on 14-11-1968 to the scene of offence cannot be considered correct. P.Ws. 2, 3 and 16 are toddy tappers. It is said that on 14-11-1968 in the morning the accused and the deceased had drunk liquor at the house of P.W. 3 purchasing it from P.W. 3. In view of the facts that the time of death of Selveray alias Annasi given by the prosecution cannot be said to be correct and that there are material discrepancies in the evidence of P.Ws. 2, 3, 8 and 16, the evidence of those witnesses cannot strengthen the evidence of P.W. 1. 9. P.Ws. In view of the facts that the time of death of Selveray alias Annasi given by the prosecution cannot be said to be correct and that there are material discrepancies in the evidence of P.Ws. 2, 3, 8 and 16, the evidence of those witnesses cannot strengthen the evidence of P.W. 1. 9. P.Ws. 1 and 16 have stated that when they went to the rivulet they found there the appellant, that the appellant talked to P.W. 1 then and that on being questioned by P.W. 16 as to where was 'ganti' P.W. 1 had stated "Why do you want to know ? He has already gone". P.W. 2 who says that he too had gone to the rivulet with P.W. 1 deposed that when they went there the appellant was not there. If the evidence of P.W. 2 is considered correct the evidence of P.Ws. 1 and 16 about their having talk with the appellant becomes false. P.W. 8 too has not stated that at the rivulet he had found appellant when he went there with P.W. 2. On the basis of the material on the record it can neither be said that P.Ws. 1 and 16 had a talk with the appellant at the rivulet at about 9.30 or 10 a.m. on 14-11-1968 nor that P.W. 1 spoke the truth. 10. The circumstantial evidence is about the appellant being in the company of the deceased on 13-11-1968 and 14-11-1968. P.Ws. 4, 5 and 6 have spoken that the appellant was in the company of the deceased on 13-11-1968, P.W. 6 was the concubine of the appellant. She said that she, appellant and the deceased were staying in one house and that at about 2 p.m. on 13-11-1968 the appellant and the deceased left the house and that on 14-11-1968 at about 7 p.m. appellant alone returned to the house and questioned whether the deceased had not returned. P.Ws. 4 and 5 said that on 13-11-1968 in the evening the appellant and the deceased were at P.W. 4's house and that they left that house at about 9 p.m. on that date. P.Ws. 3, 10 and 16 deposed about the appellant and the deceased being together on 14-11-1968. P.W. 3 said that on 14-11-1968 some time before 9 a.m. the appellant and the deceased had drunk liquor at her house purchasing it from her. P.Ws. 3, 10 and 16 deposed about the appellant and the deceased being together on 14-11-1968. P.W. 3 said that on 14-11-1968 some time before 9 a.m. the appellant and the deceased had drunk liquor at her house purchasing it from her. P.W. 16 supports the evidence of P.W. 3. P.W. 10 said that on 14-11-1968 at about 5 a.m. the appellant and the deceased had drunk toddy taking it from him and that they were with him till about 6 a.m. on that date. If the appellant was in the company of the deceased from 2 p.m. of 13-11-1968 upto about 6 a.m. of 14-11-1968 it cannot be concluded that the appellant went with the deceased to the rivulet and caused the fatal injuries to him there. The circumstantial evidence adduced by the prosecution cannot in anyway establish the guilt of the appellant. 11. It is alleged that on 14-11-1968 the appellant showed the dead body of Selveray alias Annasi at the rivulet at about 10.30 p.m. and that on 15-11-1968 he showed at a place, at a distance of about 67 metres from the place where the corpse was found, some fighting and dragging marks. P.W. 7 has been examined to prove that the appellant had shown the place where dragging and fighting marks were found. It is in the evidence of P.Ws. 2 and 8 that on 14-11-1968 only they had found some fighting and dragging marks at the rivulet. P.W. 8, according to his evidence, was present when the appellant was arrested on 14-11-1968. It cannot be said that the police was not knowing the place where there were fighting and dragging marks even before the appellant was arrested. When there is room to presume that that place was known to the police even before the appellant was arrested, the fact that the appellant showed the place after he was arrested can have no importance. Exh. P5 is panchanama about the appellant showing the dead body at the rivulet. According to that panchanama the dead body was at the margin of the rivulet stuck up to the border of the rivulet. The witnesses who spoke about this panchanama are P.Ws. 2 and 8. It should be noted that they are the same persons who were examined to strengthen the evidence of P.W. 1. According to that panchanama the dead body was at the margin of the rivulet stuck up to the border of the rivulet. The witnesses who spoke about this panchanama are P.Ws. 2 and 8. It should be noted that they are the same persons who were examined to strengthen the evidence of P.W. 1. When the dead body was at the margin of the rivulet stuck up to the border of the rivulet everyone could see it and the fact that the appellant showed it cannot have any importance. P.W. 8 said that after the appellant showed the dead body it (dead body) was dragged ashore and police kept watch over it. This evidence is contrary to the evidence of P.W. 2. Besides all this when the learned Sessions Judge examined the appellant under Section 342, Criminal P.C. he did not question him about the evidence that he pointed out the dead body and the place where signs of fighting and dragging marks were found. When no opportunity was given to the appellant about that evidence that evidence cannot be used against him. The appellant due to his poverty could not engage an advocate to defend him in the trial Court. The learned Sessions Judge did not put questions to the prosecution witnesses to find out whether they were speaking the truth. In the judgement the learned Sessions Judge said that the cross-examination was not in a convincing manner. From a labourer and villager like the appellant better cross-examination could not be expected. Appreciation of evidence by the trial Court is not satisfactory. The prosecution evidence is not at all sufficient to hold that the appellant injured or caused the death to Selveray alias Annasi. The appellant has been incorrectly convicted. 12. The appeal is allowed. The order of conviction and sentence passed against the appellant is set aside. The appellant is acquitted. He be set at liberty at once in this case. Appeal allowed.