JUDGMENT - S.C. PRATAP, J.:---This appeal by the original accused Dyandeo Appa Gaikwad is directed against the order of his conviction and sentence under sections 302 and 392 of the Penal Code recorded against him by the learned Additional Sessions Judge, Ahmednagar, in Sessions Case No. 85 of 1975. 2. Prosecution case, briefly stated, has been thus. One Bhivaji Gaikwad of village Devibhoyare owned several goats. He had a daughter by the name of Chandrabhaga who, at the relevant time, was about eleven years old. On the morning of 18th April, 1975, Bhivaji sent with her said daughter about twenty-four goats for grazing. In view of the fact that, as per normal practice, she did not return home for lunch, her elder sister Kaushalya was sent with meals and was asked to return with Chandrabhaga in the evening along with the goats. Kaushalya, however, soon came back saying that neither Chandrabhaga nor the goats was found. Search was then made for Chandrabhaga as also for the goats, but no trace was found. On the morning of the next day 19th April, 1975, Baban Belote and Savleram (the uncle of Bhivaji) went to the weekly Saturday bazar at Ghodnadi to see whether the lost goats could be found in the bazar. At the said bazar, they found the lost twenty goats. One Jankiram was near the goats. He stated that these goats were brought there by one Mahar boy and the two goats were put in the truck nearby. Baban and Salveram went to the truck and found therein two goats which had been taken by Chandrabhaga for grazing. Kasam Ahamad who was near the truck stated that he had purchased those two goats for Rs. 40/- and that the same may be taken back after repaying the amount. Baban and Savleram then met one Namdeo Appa Mulay who had gone to bazar for selling his Kardi seeds and who had introduced the Mahar boy to Jankiram. Thereafter, the twenty goats which were near Jankiram and the two goats which were in the truck were brought back by Baban and Savleram to their village Devibhoyaro. According to the prosecution, these goats were stolen by the accused and had been taken to the weekly market at Ghodnadi for disposing of the same by selling them. Thereafter, the twenty goats which were near Jankiram and the two goats which were in the truck were brought back by Baban and Savleram to their village Devibhoyaro. According to the prosecution, these goats were stolen by the accused and had been taken to the weekly market at Ghodnadi for disposing of the same by selling them. According to the prosecution further, before Baban and Savleram had reached the market, the accused had already sold away three goats to Jankiram who in turn had sold them away to a stranger who had left and could not thereafter be traced. The prosecution story further goes on to allege that after the goats were brought back to the village in question, the complainant Laxman, the son of Bhivaji, informed the police patil of the village. Search for Chandrabhaga and the remaining goats continued, but nothing was found. On the morning of 20th April, 1975, complainant Laxman went to the Police Station and lodged his complaint Exhibit 8. Offence was registered under sections 363, 392 and 411 of the Penal Code. Police Head Constable Sarmane was directed to investigate. In the course of investigation, the accused was arrested at 2.45 a.m. between the night of 20th and 21st April, 1975. According to the prosecution, an offence of murder was disclosed during the interrogation of the accused. Report accordingly was sent by Police Head Constable Sarmane to his superiors. On the morning of the next day 21st April, 1975, the accused is alleged to have made a statement, in pursuance of which Police Head Constable Sarmane and panchas and others went to a well and took out therefrom the dead body of Chandrabhaga. Information aforesaid having reached P.S.I. Mali, offence was registered also under section 302 of the Penal Code and investigation thereafter was taken up by the said P.S.I. The dead body was sent for autopsy. Statements of witnesses were recorded. Various panchanamas were effected and after completion of investigation, the accused was charge-sheeted before the Court of the Judicial Magistrate, First Class, Parner. The learned trial Magistrate committed the accused to stand his trial before the Court of Sessions, Ahmednagar. 3. Before the Sessions Court, the accused was charged under sections 302 and 392 of the Penal Code. Defence of the accused was one of total denial. He denied either having stolen the goats in question or having murdered Chandrabhaga. The learned trial Magistrate committed the accused to stand his trial before the Court of Sessions, Ahmednagar. 3. Before the Sessions Court, the accused was charged under sections 302 and 392 of the Penal Code. Defence of the accused was one of total denial. He denied either having stolen the goats in question or having murdered Chandrabhaga. He pleaded ignorance both regarding the goats as also regarding the death of Chandrabhaga. He also denied having made any statement, in pursuance of which the dead body of Chandrabhaga was taken out from the well in question. He also denied any statement, in pursuance of which one female goat was recovered. It was his further case that the prosecution witnesses were tutored. Some of them were even beaten to make statements in a particular way before the Court. He claimed to be innocent and not guilty of the charges levelled against him. 4. The learned Additional Sessions Judge who tried the case came to the conclusion on the basis of oral and documentary evidence before him that the prosecution had proved that the accused had committed the murder of Chandrabhaga on the noon of 18th April, 1975 and that the prosecution had also proved that the accused had caused the death of Chandrabhaga in order to commit the theft of the twenty-six goats which she had taken for grazing on the morning of the day in question. The accused was consequently held guilty of offence punishable under sections 302 and 392 of the Penal Code. He was accordingly convicted. For offence punishable under section 302, he was sentenced to suffer imprisonment for life and for offence under section 392, he was sentenced to suffer rigorous imprisonment for five years, both the sentences being directed to run concurrently. It is against these convictions and sentences that the accused has preferred the present appeal. 5. In support of the appeal, we have heard Mr. V.N. Kaulgekar, the learned Advocate appointed for the accused. The State is represented by the learned Public Prosecutor Mr. V.V. Kamat. Hearing Mr. Kaulgekar for the accused and Mr. Kamat for the State and going through and considering the entire oral and documentary evidence on record and also going through the judgment of the learned Additional Sessions Judge, we find ourselves unable to sustain the order of conviction and sentence recorded against the accused by the trial Court. V.V. Kamat. Hearing Mr. Kaulgekar for the accused and Mr. Kamat for the State and going through and considering the entire oral and documentary evidence on record and also going through the judgment of the learned Additional Sessions Judge, we find ourselves unable to sustain the order of conviction and sentence recorded against the accused by the trial Court. Indeed, we find the impugned judgment and order of conviction and sentence most unfortunate in the facts and circumstances of the present case. In our view, the learned Additional Sessions Judge has totally misconstrued the relevant tests and principles applicable to a case of circumstantial evidence. He has also not properly appreciated the oral and even the documentary evidence on record. The approach to the case is, with respect to the learned Additional Sessions Judge, more of a perfunctory nature and character. A prosecution involving inter alia a serious charge of murder against a young boy of about eighteen years and based entirely on circumstantial evidence has not been death with and considered with due care and responsibility. Going through the evidence of the prosecution witnesses as also through the judgment of the learned Additional Sessions Judge, impression cannot be said to be unfounded that the attempt all along has been to somehow or the other secure a conviction for the sake of conviction. Even the learned Public Prosecutor Mr. V.V. Kamat was constrained to concede that the prosecution against the accused in the instant case must fail and that the impugned order of conviction and sentence was not sustainable on the facts and material led by the prosecution in support thereof. This, in our view, is a case which must pre-eminently conclude in an acquittal. Furthermore, this is not a case of acquitting the accused on the basis of reasonable doubt but a case where an order of acquittal deserves to be recorded in favour of the accused on the basis and ground that the prosecution itself has miserably failed to bring home the charges levelled against the accused. 6. We will first take up for consideration the lesser charge under section 392 of the Penal Code. The alleged theft is of goats twenty-four in number. No peculiar signs of identification regarding these goats have been brought out or set up. Indeed, the evidence indicates that these were common-place goats found in numerous number anywhere in the villages. 6. We will first take up for consideration the lesser charge under section 392 of the Penal Code. The alleged theft is of goats twenty-four in number. No peculiar signs of identification regarding these goats have been brought out or set up. Indeed, the evidence indicates that these were common-place goats found in numerous number anywhere in the villages. The complainant Laxman himself admits that similar goats were found with other shepherds also. Similar is the evidence of another prosecution witness Baban Abaji who also admits that goats similar to the goats of the complainant Laxman and goats similar to his own goats alleged to be stolen were found with other shepherds and agriculturists. Thus, both Laxman and Baban, the owners of the stolen goats, themselves admit that goats similar to their allegedly stolen goats can be found with other shepherds and agriculturists in the villages. In the circumstances, this by itself, is a vital circumstance against the prosecution and a vital hurdle in the way in establishing that the goats brought from Ghodnadi bazar to village Devibhoyare were the very same goats belonging either to the complainant Laxman or to the prosecution witness Baban. The case of theft set up against the accused must be held to become hopelessly weak in the light of this very vital and significant circumstance against the prosecution. 7. Assuming, however, that the goats brought from Ghodnadi bazar to village Devibhoyare were in fact the goats belonging to the complainant Laxman and Baban, even then we find that there is no cogent evidence on record to establish that it is the accused who can, with confidence and beyond reasonable doubt, be said to have stolen these goats. The prosecution examined one Kasam Ahemad, a trader in goats, who was present at the weekly bazar at Ghodnadi. He stated that he had purchased two goats from a Mahar boy for Rs. 140/-. He further stated that he was willing to hand over the said two goats to Laxman and Baban on receiving Rs. 140/- from them. He thereafter goes on to say that even so he just handed over the said goats to the said persons without taking any amount from them even though he had only a short time back paid as much as Rs. 140/- for the said two goats. 140/- from them. He thereafter goes on to say that even so he just handed over the said goats to the said persons without taking any amount from them even though he had only a short time back paid as much as Rs. 140/- for the said two goats. He admits in his evidence that he had not seen the accused at any time before and that he was not acquainted with the accused. He further admits in his evidence that the police had come to him (in the course of investigation) along with the accused, though he did not remember how many policeman had accompanied the accused at that time. Here is a witness, therefore, who did not know the accused at any time, who was not in any manner acquainted with the accused and who, after the weekly bazar day, saw the accused for the first time when he was brought to him by the police. In this background, it is difficult to accept his testimony involving the accused with the theft of goats. The situation becomes all the more difficult for the prosecution in the light of another circumstance against the prosecution viz., admitted absence of any identification parade. 8. We then have the evidence of another prosecution witness Jankiram Bhaguji. He also is a person trading in goats and he was supported to be present at the weekly bazar at the relevant time at Ghodnadi. According to him, the accused brought about twenty-five goats to him for the purposes of selling them. The witness agreed to purchase three goats for Rs. 300/- and he actually took possession of three goats, though he did not pay Rs. 300/-. The witness says that he sold the said three goats to another trader for Rs. 325/-. He then states that persons from village Devibhoyare came to the goats and that it was at that time he learnt that the goats were stolen. Taking the story of this witness regarding presence of goats at the weekly bazar and negotiations for sale thereof, we find nothing else in the evidence of this witness to link the accused with the goats in question. Indeed, the witness admits that he did not know the accused any time previously. He also admits that he had never seen the accused before. He also admits that the police had shown the accused to him. Indeed, the witness admits that he did not know the accused any time previously. He also admits that he had never seen the accused before. He also admits that the police had shown the accused to him. He also admits that no identification parade was held. He further admits that though he deposed to this particular number of goats, relating to one of the weekly Saturday bazars he was unable to say regarding purchase of goats made by him on the previous Saturday. He further admits that he does not keep any notes for the purchase of goats and he also admits that he may have purchased goats from several persons during the last few years and that he was unable to give names of any of the persons selling the goats to him. In the light of these admissions, it is impossible to hold that this witness who does not remember the name of any person from whom he purchased goats during the last few years, who does not keep the record of several purchases made by him and who had not met the accused at any time before could still pinpoint the accused as the person who had brought the goats for selling them on the day in question 19th April, 1975. Credibility of this witness pinpointing the accused as the person in question is further rendered worthless by his admission that the accused had been brought to him by the police and by his further admission that there was no identification parade. The evidence of Jankiram also does not advance the prosecution case any further. 9. Coming next to the evidence of Baban Abaji who was the owner of some of these goats and who went with the complainant Laxman to the bazar at Ghodnadi, this witness categorically admits that he has no personal knowledge as to who had stolen the goats. He also categorically admits that he has no personal knowledge as to who had taken the goats to Ghodandi. He also categorically admits that goats similar to his goats are found with other shepherds and agriculturists. He also categorically admits that he has no personal knowledge as to who had taken the goats to Ghodandi. He also categorically admits that goats similar to his goats are found with other shepherds and agriculturists. He also states that though he went all the long distance of eighteen miles to the bazar at Ghodnadi to trace the goats in question and though he saw that the stolen goats were actually found in the bazar, he did not even after finding the said goats make any complaint in that behalf either to the police patil or to the police. 10. Almost similar is the evidence of the complainant Laxman. He admits that goats similar to his goats are found with other shepherds also. He further admits that he has no personal knowledge about the finding of the goats. He also admits that he has no personal knowledge as to what happened at the bazar at Ghodnadi. He also admits that nobody told him about the actual theft of goats. In facts, he further admits that Baban who had gone to the weekly bazar at Ghodnadi told him that the goats were unattended and there was nobody with them. The evidence of this witness does not help the prosecution for linking the accused with the alleged theft of goats in question. No reliance can be placed on the evidence of this witness for that purpose. Indeed, even prosecution witness Jankiram did not make any complaint inspite of his statement that he suspected the accused. 11. Turning next to the evidence of Namdeo Appa Mulay and carefully going through the same, we are unable to accept his testimony. He is a chance witness examined by the prosecution to fill up the lacuna in this case. He is examined for the purposes of showing that the accused was introduced by him to one Jankiram, trader in goats, at the weekly bazar. He states that he happened to be at the shop of one Mishrilal when the accused came to him and asked him to introduced him to the trader. This would be a highly unnatural conduct on the part of the accused if he was really guilty of theft and if he had come to the bazar with as many as twenty-four stolen goats after having killed Chandrabhaga. The evidence of Namdeo does not inspire any confidence. This would be a highly unnatural conduct on the part of the accused if he was really guilty of theft and if he had come to the bazar with as many as twenty-four stolen goats after having killed Chandrabhaga. The evidence of Namdeo does not inspire any confidence. This witness further states that though he suspected the accused regarding the goats and though he suspected that the goats were stolen, he did not inform the police in that behalf. 12. We then come to the evidence of the Police Patil Bhau Nana Belote. He says that the complainant Laxman informed him about Chandrabhaga and the goats in the morning of 19th April, 1975 and that thereafter he (the police patil) made a search in that behalf till the morning of the next day 20th April, 1975 but that he could not get any information either about Chandrabhaga or the goats. This witness appears to us to be thoroughly unreliable person. Inspite of his aforesaid evidence on oath which results in an inference that at least till the morning of 20th April, 1975 he had no information regarding the missing Chandrabhaga or the missing goats, he then goes on to State that on 19th April, 1975 itself the goats had been brought from the bazar. He had also the cheek to say that the complainant Laxman informed him on the morning of 20th April, 1975 that neither Chandrabhaga nor the goats were traced till then when Laxmans own evidence shows that the goats had been in fact traced on the 19th instant itself and had been brought back to the village in question on the evening of the same day. The witness also admits that no written complaint was filed with him by Laxman either regarding missing Chandrabhaga or the missing goats and that he was informed in that behalf only orally. He had to later on admit in his cross-examination that the goats were traced on the 19th evening itself and that the learnt about the same at 8 p.m. on the same day. Such then is the evidence of this police patil. 13. Cumulative effect of the aforesaid evidence falls totally short of any proof of the prosecution case of the accused having stolen the goats in question. Such then is the evidence of this police patil. 13. Cumulative effect of the aforesaid evidence falls totally short of any proof of the prosecution case of the accused having stolen the goats in question. Apparently disinterested persons and witness such as Kasam Mohamed and Kasam Ahemad as also Jankiram admit that the accused was shown to them by the police and that there was no identification parade held and that they were not knowing the accused at any time before and that they did not even have any acquaintance with him nor did they know his name or place. The prosecution story is that the accused stole the goats because of his poor financial condition, but even that reason does not stand the test of scrutiny because no lees a person than the complainant Laxman himself admits that the accused had four to five acres of bagayat land with a well. Even Vithal Muktaji, a retired Tahsildar, admits that the accused was possessed of bagayat lands. It is, therefore, not probable that a person so situated would go to the extent of either killing a person for the purposes of goats or stealing goats. The position of the accused cannot be said to be so poor or so run down by property. Possession of four or five acres of bagayat land with a well therein is inconsistent with the prosecution case of the accused being a poor man. Motive for the alleged crime also does not stand the test of scrutiny. 14. It is also highly improbable that an accused, a young boy, would keep in his possession as many as twenty-four goats the whole of Friday, 18th April, 1975 and the whole night following thereafter and take these goats to an open weekly bazar eighteen miles away from his own village. It is highly improbable that a young boy like the accused would go walking all the eighteen miles with twenty-four goats. Evidence indicates that a number of villages intervene this eighteen miles distance from Devibhoyare, the village of the accused, to Ghodnadi where the weekly Saturday bazar was located. In this situation and for this length of time, it is not possible to hold that the accused remained in the open with twenty-four stolen goats in his possession and with a serious crime of murder behind him. The situation is inconsistent with the guilt of the accused. In this situation and for this length of time, it is not possible to hold that the accused remained in the open with twenty-four stolen goats in his possession and with a serious crime of murder behind him. The situation is inconsistent with the guilt of the accused. In any event, such a situation cannot be linked with the only conclusion of guilt of the accused. Indeed, inference of innocence rather than guilt is more probable. 15. In this context, it is surprising to find that the prosecution or the investigation machinery failed to hold any identification parade. Indeed, the case discloses a lax investigation. This was pre-eminently a case where holding of an identification parade was necessary. Witnesses who never knew the accused and who had never seen him before or latter were pointed out to him by the police in their own company. If evidence of such witnesses is to inspire any confidence in the mind of the Court, the identification of the accused at an appropriately held identification parade was necessary. Evidence of witnesses such as Kasam Mohamed and Kasam Ahamad and Jankiram could be scrutinised and tested inter alia on the anvil of an identification parade. The object of such a parade is to test and strengthen the trustworthiness and the credibility of a prosecution witness. Sworn testimony of strangers requires corroboration which, in the circumstances herein, should have been in the form of identification parade. The prosecution must be also to carry conviction to the Court as to why this particular man has been picked up and labelled as an accused. As observed by the Supreme Court in the case of (Rameshwar Singh v. State of Jammu and Kashmir)1, A.I.R. 1972 S.C. 102 : .........It may be remembered that the substantive evidence of a witness is his evidence in Court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the formers arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortieri for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is thus and thus alone that justice and fairplay can be assured both to the accused and to the prosecution. In the facts and circumstances of the present case, we are of the view that the prosecution has taken great risk by not holding an identification parade. Caution and prudence did, in the present case, require the holding of an identification parade. 16. In all these facts and circumstances, the emerging position is, indeed, very closely in favour of the accused. The prosecution has failed to prove against the accused offence punishable under section 392 of the Penal Code. Circumstances sought to be set forth against him by the prosecution are hopelessly weak. Even the said weak circumstances have not been properly established. It is impossible to base a conviction against the accused on such evidence. The conviction and sentence of the accused under section 392 of the Penal Code deserves to be set aside. 17. Coming next to the more serious charge punishable under section 302 of the Penal Code, the prosecution miserably fails even in this behalf. The case is based purely on circumstantial evidence and well-settled position in a case based on circumstantial evidence is as laid down by the Supreme Court in more than one decision. Suffice it to refer to one of those in (Hanumant v. State of M.P.)2, A.I.R. 1952 S.C. 343. "In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof. Suffice it to refer to one of those in (Hanumant v. State of M.P.)2, A.I.R. 1952 S.C. 343. "In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." Similar are the tests laid down by the Supreme court in a cases dependent on circumstantial evidence, vide (Mahmood v. State of U.P.)3, A.I.R. 1976 S.C. 69 and (Ram Das v. State of Maharashtra)4, A.I.R. 1977 S.C. 1164. The learned Additional Sessions Judge who thought fit to convict the accused for a serious charge of murder under section 302 of the Penal Code has, with respect, ignored these well-settled principles in a prosecution based on circumstantial evidence. His approach has resulted in great miscarriage of justice and but for this appeal filed by the accused through jail the accused may have perhaps, for ought we know, continued to languish in jail suffering imprisonment for life for an alleged crime not established against him in accordance with law. 18. On the charge of murder, the evidence led by the prosecution has, apart from the aforesaid witnesses who speak about the alleged theft of goats and which theft is sought to be linked up as a motive for the crime of murder, examined a child witness Hirabai, aged ten years, on the point that the accused was last seen with the deceased Chandrabhaga on the morning of 18th April, 1975. Now, when we turn to the evidence of this witness, we are surprised to find that the learned Additional Sessions Judge has placed reliance on her evidence. Her very answer and admission in cross-examination is to the effect that the police had asked her to tell that she had seen the accused and Chandrabhaga. We do not appreciate the learned Judge getting this answer reversed by putting a leading Court question to this witness a question which is not of a clarificatory nature but one which was put obviously to get over the aforesaid damaging admission of the witness. Indeed, in the course of evidence, and qua many a prosecution witness in this case we find the Court putting Court questions of a nature giving an impression that the end result thereof was not to seek to do justice but to secure a conviction. Unfortunate, indeed, has been this approach of the lower Court. In this context, it may be noted that when the witness admitted that she did not tell any person except the police about seeing Chandrabhaga and the accused, the Court put question to her and elicited from her that indeed on the same day evening she had told her father that she had seen Chandrabhaga and the accused....another illustration of a misdirected approach in putting Court questions. This child witness further states that the accused was at a distance of 120 feet from Chandrabhaga. This is indirect contradiction with the evidence of another prosecution witness Gopinath who stated in his examination-in-chief itself that he actually saw the accused driving the goats and that one small girl was with him, thus leading to an inference that there was in fact no distance between the two and that in fact the situation observed by this witness Gopinath, aged 45 years, is far different from the situation allegedly observed by the child witness Hirabai, aged 10 years. We find it utterly unsafe to place any reliance on the evidence of Hirabai to establish the circumstance of the accused and Chandrabhaga being last seen together. 19. We find it utterly unsafe to place any reliance on the evidence of Hirabai to establish the circumstance of the accused and Chandrabhaga being last seen together. 19. This circumstance of last seen together receives a death blow by the evidence of the other prosecution witness Gopinath who admits that the police had beaten him before recording his statement and he further admits that the police and the P.S.I. had asked him to tell that he had seen the accused taking away the goats. Finding difficulty thus emerging from the evidence of Gopinath, the Court has once again commenced putting its own questions. But this witness, nature and more experienced than the child witness, has even to Court questions stated that the police did give him one slap, that he had not seen the accused with the goats at all and that he had not seen the girl also. Further, even to the court questions this witness states that it was the police who threatened and asked him to tell like that. He further reiterates : "....By taking oath I say that I have not seen the accused, goat or girl." It was after these damaging answers to Court questions that the witness is then allowed by the Court to be cross-examined by the Assistant Public Prosecutor on oral request made in that behalf by him and without the witness being formally declared as hostile. One more illustration in this case of both the State and the learned trial Judge jointly venturing for a conviction of the accused. But it is significant to note that in this cross-examination by the Assistant Public Prosecutor the witness states that it was the police who asked him to say that it was he who saw the accused near the river, that the police slapped him in the panchayat office and that the Police Patil and the persons sitting there saw that. He further states in his cross-examination by the Assistant Public Prosecutor that he had told the name of another person one Ghogare who was grazing near the river. He further states that amongst the women who were sitting near the tree was one Janabai Gund. It is not known who exactly this women is unless she is related to Gopal Gund, the owner of the field, in which the well in question was situated. He further states that amongst the women who were sitting near the tree was one Janabai Gund. It is not known who exactly this women is unless she is related to Gopal Gund, the owner of the field, in which the well in question was situated. In further cross-examination of this witness on behalf of the accused, the witness once again reiterates that it was the police who asked him to take the name of the accused and hence he was saying so. He further states that he did not see the accused. We must admire the firmness of this witness in the witness box and his consistency in giving evidence. He has stuck to his case despite efforts made to whittle him down by putting out of the way Court questions and also by permitting the Assistant Public Prosecutor to cross-examine this witness. We have no doubt that this witness is a witness of truth. We also have no doubt that he was sought to be tutored by the police by methods not unknown. In the light of this evidence, the circumstances of the deceased last seen with the accused cannot at all be said to have been satisfactorily established. Indeed, the prosecution effort in seeking to establish the said circumstances has only made prosecution investigation and evidence in that behalf more suspect. 20. The prosecution has sought to establish the next circumstances that the accused was seen on the night of 18th instant by a watchman one Kasam Mohammed. When we of through his evidence, we find that he admits that the police had brought the accused and shown the accused to him. He admits that he had never seen the accused before and that he did not know the name or place of the accused. He further admits that no identification parade was held. His statement also was recorded more than one week after the date of occurrence. Evidence of a witness such as this can hardly inspire any confidence in Court. Such evidence is best rejected. The second circumstances sought to be established by the prosecution also thus miserably fails. 21. The third circumstance sought to be established is the running away of the accused on the night he was apprehended. This evidence also is of a hopelessly weak nature. In support of the circumstance, the prosecution has examined the Police Patil. The second circumstances sought to be established by the prosecution also thus miserably fails. 21. The third circumstance sought to be established is the running away of the accused on the night he was apprehended. This evidence also is of a hopelessly weak nature. In support of the circumstance, the prosecution has examined the Police Patil. His story about people gathering, taking bicycles and running out in search of the accused followed by his further evidence that on seeing the accused they abandoned the bicycles and started chasing and running after him and his further evidence that ultimately the accused stopped running and he was then apprehended sounds cinematic and novelish and is all so uninspiring, so weak and so unnatural that it is not at all possible to place any reliance thereon. In this context, it is significant to note that though the Police Patil states that in the search and chasing party, Nana, the brother of the accused, was also there, yet the prosecution has, for reasons best known, not chosen to examine him. The Police Patil further admits that in the said party which went out in search of the accused on bicycles there was also Police Constable Ghadage, but even he has not been examined. What is still further significant is that the complainant Laxman who is also, according to the Police Patil, supposed to be one of the members of the party which went in search of the accused on the night of 20th does not himself depose a word in that behalf. His evidence is utterly silent in this respect. This circumstance also, therefore, cannot be held to have been satisfactorily established. 22. Coming to the question of discovery, here also we find a miserable failure on the part of the prosecution and utter laxity in investigation. Though the accused in supposed to have made a statement, in pursuance of which discovery was made of the dead body of Chandrabhaga from the well in question, admitted position is that no memorandum of the statement of the accused was prepared. Further admitted position is that the investigating machinery did not even make a panchanama of the accused pointing out the well in question. Though there were supposed to be three panchas, the prosecution has chosen to examine only one of them leaving aside the other two. Further admitted position is that the investigating machinery did not even make a panchanama of the accused pointing out the well in question. Though there were supposed to be three panchas, the prosecution has chosen to examine only one of them leaving aside the other two. In a case such as this, prudence requires examination of at least two panchas. What is still fatal is the non-examination of the Gurkha or the watchman who was supposed to be near the well at the relevant time and who in fact took out the dead body from the well. The name of this Gurkha as deposed to by the panch Baburao Tulekar is Ramsing. He states that this Ramsing was there near the well and that the police had asked him to take out the dead body and that he (Ramsing) descended into the well and took out the dead body; and yet, in all these circumstances, this Ramsing is not examined by the prosecution. 23. On the aforesaid aspect, it is also significant to note that though the complainant Laxman admits that he along with the police and the accused while going to the well in pursuance of an alleged statement made by the accused were accompanied by other as many as 60 to 70 persons, the prosecution has not chosen to examine any one of these 60 to 70 persons accompanying the accused, the police and the complainant to the well, but has led the evidence of only persons interested in the matter. Mr. Kaulgekar is also right in his submission that inadmissible evidence has been taken into consideration on the aspect of discovery, in pursuance of section 27 of the Evidence Act. He criticised the reasoning of the learned Additional Sessions Judge in paragraph 30 of his judgment in the aforesaid behalf. It is, however, unnecessary to pursue this matter of discovery any further in view of the aforesaid important lacuna therein. It is not possible to relay upon such evidence of discovery nor it is possible to even spell out there from any cogent or material circumstance against the accused. 24. It is, however, unnecessary to pursue this matter of discovery any further in view of the aforesaid important lacuna therein. It is not possible to relay upon such evidence of discovery nor it is possible to even spell out there from any cogent or material circumstance against the accused. 24. We then have the evidence on record which shows that though, according to the prosecution, the well was at a forlorn place away from all vastis and unseen by persons, the Circle Inspector himself admits that though there was no vasti on either sides, there was vasti at a distance of a furlong and a half towards the East of the well. The Circle Inspector further admits that towards the South of the well work of excavating Kukadi Canal was going on. Of course, this work must be related to the time 23rd June, 1975 when the witness visited the site. But even that time cannot be said to be far removed away from the date of the incident 18th April, 1975. Period of hardly two months had expired since the date of occurrence and it cannot be said that the work of excavating the canal suddenly started during the monsoon month June 1975 without anything else in that behalf being on site in 1975. In any event of the matter, circumstances of indicate vasti at least in one direction of the well and some excavation work going on round about. It would be highly unsafe to hold that the well was situated totally out of sight and in a forlorn place. 25. Mr. Kaulgekar also invited our attention to the undisputed position in the present case that there was no recovery of any weapon nor recovery of any blood stained clothes. By themselves, these circumstances may not be given much value, but, in the context, they indicate missing links. 26. The learned Advocate further submitted and, in our view, rightly, that though motive is not an essential ingredient of a crime, if motive is set forth by the prosecution, then it must indeed be properly established. In the present case, the prosecution has set forth theft of goats as motive for the crime. We have found that this story and allegation of theft has miserably failed. In the present case, the prosecution has set forth theft of goats as motive for the crime. We have found that this story and allegation of theft has miserably failed. Consequently, the motive set forth for the main crime of murder also itself becomes a very weak circumstance and reduced to such weakness, motive as a circumstance also cannot, therefore, be given any value. 27. Mr. Kaulgekar also invited our attention to another relevant factor in a proceeding where law requires proof beyond reasonable doubt. He submitted that the dead body of Chandrabhaga was found and removed from the well on the morning of 21st April, 1975 which would be nearly four clear days after the death in question. His submission was that, in spite of this position, neither the post mortem notes nor the evidence of the Medical Officer indicate any decomposition of the body in question. In fact rigor mortis could have set in within a few hours of the death of this young child Chandrabhaga. All the more so when we find the Medical Officer firm in his view that the girl dies first and it was only thereafter that she was thrown into the well. The absence of any decomposition is an indication, however small it be, that death may not perhaps have occurred on the 18th instant itself but may have occurred some time later on. There is no clinching material on record to establish beyond reasonable doubt the occurrence of death on the 18th itself. 28. Yet another circumstance to which our attention was invited by the learned Advocate Mr. Kaulgekar was that the panchanama of the clothes of the deceased showed a dhoti piece tied around the waist of the deceased, thus indicating the possibility, however faint it be, of some other person involved in the occurrence. The accused, admittedly, was not wearing any dhoti. He was a young boy wearing only a pyjama and a shirt. 29. Yet another circumstances referred to by Mr. Kaulgekar was in the context of the medical evidence on record viz., that the deceased was first assaulted and thereafter thrown into the well. The learned Advocate submitted that if this is the position, it is improbable that the accused, a young man of hardly eighteen years, would, after fatally assaulting the deceased, carry her all the way to the well and then throw her into the same. The learned Advocate submitted that if this is the position, it is improbable that the accused, a young man of hardly eighteen years, would, after fatally assaulting the deceased, carry her all the way to the well and then throw her into the same. Medical opinion shows that this was not death by drowning but that death had already occurred and the body was then thrown into the well. There is some substance in the aforesaid contention of the learned Advocate and taken along with the other circumstances, it does not raise a reasonable doubt about the prosecution charge against the accused. 30. Having thus gone through, analysed and scrutinised the evidence on record and the circumstances of the case, we find ourselves unable to agree with the learned Judge that the nine circumstances mentioned by him in paragraph 41 of his judgment can be said to have been established. Indeed, we find several of these circumstances not satisfactorily established at all. Many of these circumstances as shown by this judgment of ours are of an extremely doubtful nature and character. It is not necessary to extract seriatim here the circumstances in paragraph 41 of the learned trial Judges judgment. Suffice to say that the said circumstances do not stand the test of scrutiny in the light of the evidence on record. Many a doubtful circumstances has been wrongly elevated by the learned trial Judge to the status of a proved circumstance. Furthermore, as rightly submitted by the learned Public Prosecutor Mr. Kamat before us, even if the said circumstances enumerated by the learned Additional Sessions Judge are taken to be proved, the offence of murder is not made out and established beyond reasonable doubt against the accused in accordance with law. Considering these circumstances, many a rational question remains unanswered and may a vital lacuna continues to remain a lacuna. With all the efforts put in by the prosecution to rope in this young accused and have him convicted of the capital offence of murder, the said efforts have miserably failed. The circumstances alleged and referred to by the learned trial Judge cannot also be said to be inconsistent with the innocence of the accused. The same also cannot be said to result in the only inference necessary for a successful prosecution viz., consistent only with the guilt of the accused. The circumstances alleged and referred to by the learned trial Judge cannot also be said to be inconsistent with the innocence of the accused. The same also cannot be said to result in the only inference necessary for a successful prosecution viz., consistent only with the guilt of the accused. We have no hesitation in reversing the order of conviction and sentence recorded by the learned Additional Sessions Judge and in acquitting the accused of both the charges levelled against him. 31. In the result, this appeal succeeds and the same is allowed. The conviction and sentence of the accused for the offence of theft as also of murder is set aside and quashed and the accused is acquitted of the charges levelled against him. The accused is directed to be set at liberty forthwith unless otherwise required for any other purpose. -----