JUDGMENT - Per S.M. HAJARNAVIS, J.:---These two appeals are filed by the original accused Nos. 5 and 1 respectively against the judgment delivered by the Additional Sessions Judge, Ratnagiri, convicting both of them for the offences punishable under section 302 and read with section 34 of the Indian Penal Code for committing murder of one Dada alias Bhikusheth and under section 25(1)(a) read with section 3 of the Arms Act and sentencing them to suffer imprisonment for life and rigorous imprisonment for one year respectively. Original accused No. 1 Shankar has also been convicted, under section 404 of the Indian Penal Code for dishonestly misappropriating a gun which was in the possession of the deceased at the time of his death, and sentenced to suffer rigorous imprisonment for two years. 2. It is not necessary for the purposes of these appeals to enumerate all the facts in details, nor is it necessary to discuss all the evidence led by the prosecution, as in our opinion, most of the facts which are alleged by the prosecution and which are held to have been proved by the Additional Sessions Judge will not bring any of the offences home against any of the appellants. There is no dispute that the deceased Dada Wate died a homicidal death on or soon after Wednesday, 31st July, 1974 because of the gun show wounds that were detected on his dead body and that his dead body was found on Friday, 2nd August, 1974. The only point which needs determination is who had inflicted those injuries. 3. The deceased Dada alias Bhikuseth used to reside in his farm house away from his village Kolzar. On the farm house, a number of female labourers used to stay with him. It is alleged by the prosecution that he used to have illicit relations with some of the labourers or women staying with him. There were also three female residents with him having a common name "Saraswati". It is alleged that with every one of them, he had illicit connection. One of the Saraswatis has been examined as a witness. 4. That Saraswati is P.W. 24 and her son Yeshwant Gawas who is about 23 years old is P.W. 25. Yeshwant Gawas (P.W. 25) has admitted that the deceased Dada Wate used to have illicit connection with his mother Sarswati (P.W. 24). One of the Saraswatis has been examined as a witness. 4. That Saraswati is P.W. 24 and her son Yeshwant Gawas who is about 23 years old is P.W. 25. Yeshwant Gawas (P.W. 25) has admitted that the deceased Dada Wate used to have illicit connection with his mother Sarswati (P.W. 24). It is in the evidence of these two witnesses that accused No. 5 Suryaji used to visit the farm house of the deceased. They stated that he was prohibited from visiting the farm house by Dada Wate on the ground that he had made overtures to the third Sarswati who was staying with Dada and that is why the relations between Dada Wate and accused No. 5 Suryaji were strained. They have also stated that Yashwants marriage was arranged but it was broken at the instance of accused No. 5 Suryaji who approached the parents of the girl and gave them false information about Yashwant. He also unsuccessfully tried to break his second marriage. They also stated that the cattle of the deceased strayed into the plantation of accused No. 5 Suryaji and that is why accused No. 5, was ill-disposed towards the accused. Their evidence has been accepted by the learned Judge and he held that was sufficient motive for him to conspire against the deceased. In our opinion, this evidence has to be mentioned only to be rejected. Except bare statement of Yashwant (P.W. 25), there is nothing on record to show that the relations between the deceased and accused No. 5 Suryaji were strained. He has also not stated when the relations became strain and from what time accused No. 5 was prohibited by the deceased from visiting the farm house. So far as the part alleged to have been played by accused No. 5 Suryaji in trying to break the marriage of Yashwant, neither he, nor Sarswati had stated what wrong information he had supplied to the parents of the bride, nor any parent of the bride was examined in that respect. Their evidence in that matter was here say and ought not to have been accepted by the learned Judge. So far as the straying of the cattle of the victim in the plantation of accused No. 5 is concerned, there is nothing on record to show when that incident took place. Their evidence in that matter was here say and ought not to have been accepted by the learned Judge. So far as the straying of the cattle of the victim in the plantation of accused No. 5 is concerned, there is nothing on record to show when that incident took place. Accused No. 5 Suryaji has stated in his examination under section 313 of the Code of Criminal Procedure that the plantation was burnt six years prior to the incident. The learned Judge has not made any reference to that statement. In our opinion, the evidence of these two witnesses regarding motive ought not to have been accepted by the learned Judge. 5. It is an admitted position that accused No. 1 Shankar was not a resident of village Kolzar. It is stated that he is a resident of village Utsali or any village nearabout Utsali which is in Chandgad Taluka, District Kolhapur. We have not been able to find out from record the distance between Utsali and Kolzar. We repeatedly asked the Public Prosecutor about it, but he could not give us the details where village Utsali is situated. 6. Accused No. 5 Suryaji is a residential of Hevale Babarwadi which is a nearby village. So far accused No. 1 Shankar is concerned, he is not a resident of nearby village. The prosecution has examined as many as 7 witnesses to show that accused No. 1 Shankar and accused No. 4 Bhikaji were found by the people moving nearabout the village 3 or 4 days prior to the date of the incident. The evidence of these witnesses appears to us artificial and of very little assistance. What they have stated is that they saw two persons either in the hotel or crossing the river and one of the two persons was a fair complexioned person while the other was dark. In our opinion, that evidence is absolutely useless to establish the identity of the person. In Ratnagiri District, most of the people are either of fair or of dark complexion. They have not mentioned any special features of these two persons. In our opinion, that evidence is absolutely useless to establish the identity of the person. In Ratnagiri District, most of the people are either of fair or of dark complexion. They have not mentioned any special features of these two persons. It is true that accused No. 1 Shankar has been identified in the identification parade held subsequently after the arrest of accused No. 1 but that also will not help the prosecution in-as-much as nothing has been brought on record to show that the spot where they were seen was nearabout the scene of offence. Then again they were seen near those places at least 3 or 4 days prior to the date of the incident. There is evidence of Sarswati that the deceased left the place on Wednesday in the afternoon, while all these persons seem to have seen these two accused on proceeding Saturday or Sunday; that means at least 4 days prior to the incident. That being so, the evidence of all these witnesses, even if it is accepted, does not establish that accused Nos. 1 and 4 were found near the scene of offence just prior to the commission of the offence. The evidence of these witnesses is, therefore, a very vague and does not bring home any of the offences against any of the accused. 7. Another circumstances which appealed to the learned Judge was that the accused No. 5 Suryaji was absconding. The evidence about this is useless and ought not to have been accepted by the learned Judge. It is true that one Ghabru Lobo (P.W. 22) has stated that the accused was serving with him when the police came enquiring about him. On learning that the police had come, he escaped on the pretext that he has to go to his village on account of illness. This evidence appears to us unnatural and artificial. This witness has, however, admitted that accused No. 5 Suryaji returned to him after a few days. In our opinion, accused No. 5 would not have returned to the place if he was afraid of the police and wanted to abscond. The learned Judge has committed an error in drawing an adverse inference against the accused on the alleged ground that the accused was absconding. 8. In our opinion, accused No. 5 would not have returned to the place if he was afraid of the police and wanted to abscond. The learned Judge has committed an error in drawing an adverse inference against the accused on the alleged ground that the accused was absconding. 8. The only other evidence against accused No. 5, which has been accepted by the learned Judge, is about the extra-judicial confession made by the accused. It is needless to say that extra-judicial confession is a very weak type of evidence and should not be readily accepted. In this case, there is the evidence of Ghabru Lobo (P.W. 22). He has stated: "I know accused Nos. 2, 3 and 5. I knew deceased Dada Wate. His dead body was found on Friday. On Wednesday previous to the said Friday I went in search of my strayed cow. I asked accused No. 2 Bala Sawant whether my cow had come in his cattle. I asked him this information near his house. He replied in the negative. I turned back. Accused No. 2 Bala asked me to come back. I went towards out-house of accused No. 3 Soma. Accused No. 2 Bala, accused No. 3 Soma and accused No. 5 Suryaji with two other persons were present there. Accused No. 5 Suryaji said that they were guests from the Ghats. Accused No. 5 Suryaji said "Dada Wate was murdered". I asked him as to who murdered him and accused No. 5 Suryaji said "We have murdered him". Accused No. 5 asked me to accompany them to throw the dead body, I told him that I could not see properly and it would not be possible for me to come. Then I went home and did not disclose this fact to anybody out of fear." The evidence of this witness is unnatural and ought not to have been accepted by the learned Judge. He has been cross-examined at length and it has been brought on record that neither in the Police statement, nor in the statement under section 164, he has stated that it was accused No. 5 Suryaji who had stated that he had murdered the deceased. On his own showing, he did not know Suryaji before and there was no occasion for accused No. 5 Suryaji to tell him was Dada Wate was murdered. On his own showing, he did not know Suryaji before and there was no occasion for accused No. 5 Suryaji to tell him was Dada Wate was murdered. There were 5 persons at that place and there that no necessity for them to obtain the help of another person for disposing of the dead body of the deceased Dada Wate. This man, on his own showing had a very weak eye sight and would have been of very little assistance in disposing the dead body of the deceased Dada Wate. In our opinion, his evidence is unreliable and ought not to have been accepted by the learned Judge. 9. So far as the discovery of the weapon belonging to the deceased by accused No. 1 from his uncles place is concerned, apart from the fact that one of the panch witnesses has not supported the other panch and there being discrepancies in the evidence, we find it difficult in accepting the story of the prosecution that it was the accused No. 1 Shankar who had concealed that weapon. We cannot pursuade ourselves to believe that uncle of accused No. 1 would permit accused No. 1 Shankar to conceal a fire arm in his house. It was a 12 bore double barrelled gun which could not be concealed clandestinely in somebody elses house. We, therefore, feel it rather unsafe to rely on the evidence regarding the discovery of the gun. It may be that accused No. 1 Shankar knew that it was concealed there, but mere fact that he showed the place where the gun was concealed will not establish that he himself had concealed the weapon. That being so, in absence of any clinching evidence in the matter of discovery of the weapon, we do not attach much importance to the story of concealment of the gun. These are the only circumstances which are proved against accused No. 1 Shankar. In our opinion, the gun was not recovered from the possession of the accused No. 1. 10. In the result, both the appeals are allowed and the convictions and the sentences imposed on the appellants by the lower Court are set aside, and the appellants are acquitted of all the offences with which they were charged. -----