JUDGMENT B.U. Wahane, J. - The accused - Vishnu Waman Gaud was convicted for the offence punishable under Section 302 Indian Penal Code and sentenced to imprisonment for life by the learned Sessions Judge, Amravati (Shri V.M. Damle) by his judgment dated 1-4-1986 in Sessions Case No. 130/85. He has been found guilty for committing the murder of Ramhari Gopal Haramkar on 22-5-1985 at about 2.20 P.M. The appellant has come up in appeal to challenge his conviction and sentence. 2. Briefly stated the case set up by the prosecution is that the deceased owns a house in the locality known as Pannalal Nagar, Amravati. He was occupying the ground floor of his own house. He was living with his wife. His house being a building of two storied, the first floor was in occupation of Kishor (P.W. 3) and his brothers, the sons of sister of deceased. The first floor was occupied by Karule brothers and their parents. The deceased, prosecution witnesses i.e. Karule brothers and Mahadeorao Haramkar (P.W. 1) being to same community i.e. "Sopar". The alleged incident of assault took on 22-6-1985. On that date, the marriage ceremony of one Arun Harainkar with Chhaya Karule took place at Mrugendra Math hall, Amravati. Since the parties to the marriage being of sonar community, the deceased, the witnesses and others were invited to attend the marriage as also to pertake the lunch in the afternoon. 3. The father of Kishor and Ashok Karula being paralytic patient did not attend the marriage ceremony and was in the house. Other members of the family had attended the marriage ceremony, which took place at about 9 or 10 AM. After the marriage ceremony, the wife of the deceased did not return home and she was in the marriage hall for lunch. She remained there until she was informed about the murderous assault on her husband. Likewise, the mother of Kishor (P.W. 3) was also in the marriage hall. 4. Kishor Karule and his brother Ashok being artizens were working with the goldsmiths, whereas their younger brother Anil was running his own shop. It is the case of the prosecution that Karule brothers though attended the marriage, did not wait for the lunch at the hall. They returned home to take the lunch at their house only. According to the prosecution Kishor (P.W. 3) was the first person to arrive in his house. It is the case of the prosecution that Karule brothers though attended the marriage, did not wait for the lunch at the hall. They returned home to take the lunch at their house only. According to the prosecution Kishor (P.W. 3) was the first person to arrive in his house. He was followed by Ashok Karole (P.W. 7) and Anil Karole, Kishor Karole (P.W. 7) was about to take his lunch, he found deceased when he came upstairs. Kishor offered him food, but the later told him that he had just returned from the lunch, and therefore, he asked for water. The water was offered to him. Thereafter, he went down stairs. 5. By this time, the other brothers of Kishor i.e. Ashok "and Anil returned home and found that their brother Kishor had, just taken lunch. Thus, all the three brothers were sitting and chit-chatting in the kitchen room. They heard shouts of deceased from the ground floor. At that time, Ashok (P.W. 7) and his brother Anil were taking the lunch. Kishor came on the landing of the stair-case after hearing the shouts and from there had a look downwards. It is the case of the prosecution that in the Angan, Kishor noticed that the accused was dealing a knife blow to the deceased. Kishor, therefore, gave a shout. His two brothers had already come on the landing of the stair case. The accused started running with the knife in his hand and he thus made good his escape through the passage in between the house of the deceased and his neighbour Ashok Gokhale (P.W. 17). All the three Karule brothers came down the stairs and found deceased in pain, having bleeding injuries on his person. They gave him support. By this time, the neighbours including Ashok Gokhale. (P.W. 17) also appeared on the scene. 6. While the Karule brothers and other neighbours were attending the deceased, prosecution claimed that the deceased made a dying declaration on being asked by Ashok (P.W. 7). Deceased told him that "He was assaulted by the accused with knife". Considering the condition of deceased, Ashok (P.W. 7) brought a cycle rickshaw. The three Karule brothers and Ashok Gokhale (P.W. 17) put him in the cycle rickshaw and Kishor accompanied him followed by Anil to hospital. Anil and Ashok proceeded ahead on their bicycle. Deceased told him that "He was assaulted by the accused with knife". Considering the condition of deceased, Ashok (P.W. 7) brought a cycle rickshaw. The three Karule brothers and Ashok Gokhale (P.W. 17) put him in the cycle rickshaw and Kishor accompanied him followed by Anil to hospital. Anil and Ashok proceeded ahead on their bicycle. Ashok Karule (P.W. 7) went to Krugendru Nath hall and informed the wife of deceased. 7. While the deceased was being carried in a cycle rickshaw, Kishor (P.W. 3) questioned him. The deceased made the dying declaration to the effect that "he was assaulted by accused with knife". When the rickshaw reached near the Rajkamal Chowk, Anil Karule, Anil Haramkar and Ashok Gokhale arranged for Auto rickshaw for speedy removal to the hospital and accordingly the deceased was shifted from cycle rickshaw to Auto-rickshaw by these persons. The deceased was accompanied up to Irwin Hospital in the rickshaw by Kishor (P.W. 3) and Anil Haramkar (P.W. 9). The prosecution further claims that while the deceased was being, taken in the Auto-rickshaw, Anil Haramkar (P.W. 9) question him about the incident and the deceased again reported that the accused has assaulted him with knife. 8. On arrival at the Irwin Hospital, the deceased was taken to O.P.D. where he was examined by Dr. Shirbhate (P.W. 18). The deceased was transferred to regular ward situated on the upper floor of the hospital at about 3 P.M. It is the case of the prosecution that before the deceased was transferred to the ward, he again made a dying declaration to Anil Haramkar (P.W. 9) who being his close relative, requested him to look after the shop and take care of his wife. The deceased breathed his last in the hospital at about 3.20 P.M. It is the case of the prosecution that Vishwanath Marodkar (P.W. 8) who was present in Irwin Hospital, thought it necessary, to inform Mahadeo Haramkar (P.W. 1). He rushed to his house and informed him. Consequently, Mahadeo Haramkar (P.W.1) came to Irwin Hospital. By the time he reached the hospital, deceased was already declared dead. He found all the three Karule brothers by the bed-side of the deceased. After questioning them about the incident, he went to Rajapeth Police Station where he made a report which was reduced to writing at Ex. 17 by Shri Pargaonkar P.I. (P.W. 16). By the time he reached the hospital, deceased was already declared dead. He found all the three Karule brothers by the bed-side of the deceased. After questioning them about the incident, he went to Rajapeth Police Station where he made a report which was reduced to writing at Ex. 17 by Shri Pargaonkar P.I. (P.W. 16). Besides an oral statement, he also made a writing vide Ex. 16. On the basis of the information, Crime No. 439/85 under Section 302 read with 34 I.P.C. was registered against the accused appellant and his two unnamed sons. 9. Shri Pargaonkar, thereafter, rushed to the house of the deceased along with Mahadao Haramkar (P.W. 1) and in presence of two panchas, drew a spot panchanama Ex. 19. Blood scrappings were taken from the floor of the house and the Angan as well as the blood-stained Galicha (Article 5) and pillow (Article 6) were seized. Digambar Tinkhedex (P.W. 2) is the panch. Shri Pargaonkar also directed to take the photographs of the house of deceased, which are Exhibits 20, 21 and 62/128. While the investigation was in progress, Ashok Karule (P.W. 7) and his brother Kishore Karule (P.W. 3) returned to their house. Finding their clothes blood-stained, Shri Pargaonkar seized those under seizure panchanama Exts.10 and 9 respectively. 10. On the same night, P.I. Pargaonkar visited the house of the accused and he not being in the house, interrogated his four sons. On the next day i.e. on 23-5-1986, Shri Pargaonkar directed his subordinate Shri Pawar - P.S.I. (P.W. 15) to go to village Sawanga to trace the accused. Shri Pawar - P.S.I. arrested the accused at village Sawanga. The clothes on the person of the accused being blood-stained, he seized those i.e. white Dhoti having red border (article 15 as per C.A. Report Ex. 64), sleeve baniyan of cotton cloth (Article 16 as per C.A. Report Ex. 64) under arrest Panchanama Ext. 62. 11. Dr. Khan (P.W. 4) performed autopsy on the dead body of Ramhari on 23-5-1985 and found the following two external injuries: Incised stab wound left side of body in direction of mid-axillary line at the place in between 11th and 12th left ribs of the site of 1 x 2" vertical in direction. 64) under arrest Panchanama Ext. 62. 11. Dr. Khan (P.W. 4) performed autopsy on the dead body of Ramhari on 23-5-1985 and found the following two external injuries: Incised stab wound left side of body in direction of mid-axillary line at the place in between 11th and 12th left ribs of the site of 1 x 2" vertical in direction. Incised stab wound on left thigh of the leg on lateral side, 3" below hip joint of the size 1" x 2" vertical in direction, which were found anti-mortem. On internal examination the doctor found the heart pale and empty of blood. Clotted blood was seen in peritoneal cavity. Spleen was found with incised wound of the size 1" x ½" on lateral surface. The post mortem report is at Exg. 25. 12. Constable Bharatsingh collected the clothes of the deceased viz. Article 11 Baniya, Article 12 underwear, Article 13 sacred thread, Article 14 Kardodaand produced them before Shri Pargaonkar who seized them under Panchanama Ex. 12. While the accused was in the custody on 24-5-1985 he volunteered to make a statement and thereby to disclose to discover the knife and shirt. Accordingly, in presence of the Panchas, a memorandum was recorded at Ex. 42. Pursuant to the statement of the accused, Shri Pargaonkar and Panchas went to his house and discovered Article 17 - a Rampuri knife which was hidden in the cow dung pit and Article 18 - a shirt seized from the peg. Knife and shirt were seized under Panchanama Ex. 43.Pradeep Choudhary (P.W. 10) is the panch. 13. On 27-5-1985, Shri Pargaonkar sent the accused to hospital for obtaining sample of the blood. The accused was examined by Dr. Knanorkar (P.W. 5) who examined the accused and issued certificate vide Ex. 31. After extracting the blood sample, Dr. Khanorkiar himself examined the same and found "AB" group. Along with certificate Ext. 31, the phial containing blood of the accused was sent for its onward transmission to Serologist. On 19-7-1985 all the incriminating articles seized during the course of investigation were sent to Chemical Analyser. The report of Chemical Analyser is at Ex. 74. The Investigating Officer submitted the Charge-sheet Ex. 63 in the Court of Judicial Magistrate First Class, Amravati on 2-8-1985. The case was committed to the Court of Sessions for trial. 14. On 19-7-1985 all the incriminating articles seized during the course of investigation were sent to Chemical Analyser. The report of Chemical Analyser is at Ex. 74. The Investigating Officer submitted the Charge-sheet Ex. 63 in the Court of Judicial Magistrate First Class, Amravati on 2-8-1985. The case was committed to the Court of Sessions for trial. 14. The learned Sessions Judge, Amravati framed charge under section 302 Indian Penal Code vide Ex. 3. Accused denied the charge and claimed to be tried. His defence is of total denial. He submitted that he was present in the marriage ceremony in the Mrugendra Kath. Hall in the morning hours. He further stated that after the aforesaid marriage ceremony was over, he had gone to Daryapur to attend another marriage, and thereafter he had gone to his village Sawanga and stayed overnight, in the house of Gowardhan Saqgne (P.W. 11). He admits that he was arrested from that village. However, he denied that any blood-stained clothes were seized from his person. Similarly he denied the recovery at his instance of the knife and blood-stained shirt. The prosecution examined 18 prosecution witnesses to substantiate the charge against the appellant accused. After appraisal, the learned Sessions Judge, Amravati discarded the evidence of the Solitary eye-witness Kishor (P.W. 3) and circumstantial evidence of Ashok (P.W. 7) as also the dying declarations made to them and Anil. However, he considered the circumstantial evidence i.e. the previous conduct of the accused, coupled with the discoveries and held that the prosecution has squarely brought home the guilt against the accused for the offence punishable under Section 302 Indian Penal Code. 15. Shri Manohar, the learned Counsel for the appellant challenged the conviction mainly on the ground that the circumstantial evidence of previous, conduct of the accused coupled with discoveries made by him does not lead to unresistable conclusion to hold that the accused is in any way responsible for the injuries caused to deceased Ramhari and thereby he committed an offence punishable under Section 302 Indian Penal Code. Besides this, the learned Counsel for the appellant also argued that the learned Trial Judge has not even considered the various circumstances which. demonstrate that the prosecution evidence or the story as put forth by Kishor (P.W. 3) and others is false one. Besides this, the learned Counsel for the appellant also argued that the learned Trial Judge has not even considered the various circumstances which. demonstrate that the prosecution evidence or the story as put forth by Kishor (P.W. 3) and others is false one. On the contrary, Shri Ahmad, the learned Public Prosecutor submitted that the evidence which has been relied upon by the learned Sessions Judge is unblemished, and therefore the conviction deserves to be maintained. Similarly, he submitted that the evidence of some e e-witnesses i.e. Kishor (P.W. 3) and his brother Ashok (P.W. 7) also be considered because the observations of the learned Trial Judge are perverse. Shri Ahmad rightly submitted that; "In a criminal matter, the appellate Court irrespective of the fact whether any finding of the Trial Court is challenged or not, has to come to its own finding about the facts which are alleged to have constituted the offence. It means, the powers of the appellate Court in regard to the appeal, may be against the conviction or against the acquittal, are full and wide." Shri Ahmad further submitted that the learned Trial Judge has committed an error in discarding the evidence of Kishor (P.W. 3) being not in consonance with the evidence of Mahadeo Haramkar (P.W. 1) whose evidence is hearsay evidence. He, further submitted that the clothes of Kishor and Ashok were stained with blood, they took the deceased initially in the cycle rickshaw and subsequently in Auto-rickshaw. No doubt could be raised regarding their presence. They have no animus whatsoever to implicate the accused. Similarly, the appellant was absconding. All these aspects have not been considered by the learned Trial Judge before rejecting the cogent and reliable evidence of Kishor (P.W. 3) and his brother Ashok (P.W. 7). Further, it is submitted that there was no reason to discard the four dying declarations made by the deceased. Our attention was attracted to the case of Kusa v. State of Orissa1. But the said ruling is not at all applicable considering the facts and circumstances of the instant case before us. 16. Further, it is submitted that there was no reason to discard the four dying declarations made by the deceased. Our attention was attracted to the case of Kusa v. State of Orissa1. But the said ruling is not at all applicable considering the facts and circumstances of the instant case before us. 16. As the conviction is based on the discovery made by the accused of the knife Article 17 and Shirt, Article 18 as also the circumstance of his previous conduct being taken into consideration, we will consider these two aspects, whether these are sufficient for convicting the accused appellant for the offence punishable under Section 302 I.P.C. On 24-5-1985, in presence of panchas, the accused made a discovery statement about the knife (Article 17) and Shirt Article 18 which were subsequently taken out from the pit of cow-dung and the shirt (Article 18) from the house of the accused which was hanged on the peg. The learned Trial Judge also reproduced the version in vernacular which is alleged to have been made by the appellant accused in para 32 of the judgment Mr. Manohar the learned counse1 for the appellant argued that if the statement of disclosure (Ex. 42) is read in correct perspective then it is not giving the clear picture that the appellant has hidden or concealed the knife in the pit of cow-dung. The statement is *Sic. Mr. Manohar further submitted that there is no specific mention that" I have hidden" or "I have concealed" knife in my Wada. We too feel that there is substance in the contention. Similar situation had arisen in a case reported in Pohalya v. State of Maharashtra2. On the contrary Shri Ahmad, the learned Counsel for the State tried his level best to distinguish the observations of their Lordships of the Supreme Court and tried to impress upon us to the effect that the Marathi words *Sic. and *Sic. are different He submitted that in his statement the accused used the word *Sic. which indicates the connection of the accused/appellant with the article. If there would have been a knowledge about the article, accused would have used the word * Sic. In our view, both the words do not denote any difference. We are, therefore, constrained to observe that as the word *Sic. which indicates the connection of the accused/appellant with the article. If there would have been a knowledge about the article, accused would have used the word * Sic. In our view, both the words do not denote any difference. We are, therefore, constrained to observe that as the word *Sic. ("I" before the word 'Concealied or 'hidden'), it 'gives an impression that at the most the appellant-accused had the knowledge of the knife which may have been hidden in his wada. There is specific evidence that the appellant accused is living in the house with his four grown up sons. The knife was sent to the Chemical Analyser and as per the report Ext. 64, no blood was detected on the knife. Therefore, the discovery does not connect the appellant accused that he used knife Article 17 in the crime. This circumstance is not sufficient, even if the discovery is considered to come to the conclusion that the appellant accused is an assailant 17. Another incriminating circumstance regarding the seizure of Shirt Article 18 has been considered by the learned lower Court. The admitted fact is that the shirt Article 18 was seized from the peg. The blood found on the shirt was that of 'B' group. The blood group of. the deceased was also of 'B' group. During the course of investigation the blood of the accused was collected and forwarded to Seriologist. We found that the blood group of the accused is 'AB'. It is in evidence of Shri Pargaonkar, Circle Police Inspector that "the accused and his wife and four sons all reside in this house", In view of this admission, and in absence of specific evidence on record that the shirt Article 18 belongs to him and he was wearing the same on the day of incident and that too at the relevant time, this circumstance also does not help in any way to the prosecution. 18. The learned Trial Court while convicting the appellant accused also taken into consideration the previous incident which took place between the deceased and the appellant accused in the Mrugendra Nath Hall where the marriage ceremony was held on the date of the incident. This incident has been considered by the learned Judge as previous conduct of the accused. 18. The learned Trial Court while convicting the appellant accused also taken into consideration the previous incident which took place between the deceased and the appellant accused in the Mrugendra Nath Hall where the marriage ceremony was held on the date of the incident. This incident has been considered by the learned Judge as previous conduct of the accused. It is an admitted fact that the deceased and the accused attended the marriage ceremony in the morning hours of the day of the incident. The accused and the deceased also participated in the lunch. Regarding the presence of the deceased in the lunch is spoken to by Lonkar (P.W. 6). Shri Lonkar claims that outside the Mrugendra Nath Hall i.e. the place of marriage ceremony, an altercation between the deceased and the accused took place and in the said altercation the accused threatened the deceased that he would deal with him on that very day. This altercation has been considered as a motive to commit the murder of Ramhari Haramkar. Lonkar (P.W. 6) deposed that "In the altercation the deceased was telling the accused as to why he very often gives abuses. The accused replied that the deceased might do as he wished. Bharat Haramkar intervened and prevailed over both of them. While parting the accused told the deceased that only today he would deal with him. Thereafter Ramesh Karamkar gave lift to the deceased on his motorcycle." This is the only version regarding the altercation between the two. If in a proper spirit, it is construed it will be clear that because of the abuses showered by accused often and on to the deceased, the deceased will be offended: Therefore, merely asking the accused why he used to abuse, it will be farfetched to imagine that the accused will extend threats to commit murder. In the evidence, this witness admitted in the cross-examination that; "It is true that I have not stated before the police the altercations between the accused and the deceased, taken place in verbal altercation". He further deposed that; "I cannot state the cause of verbal altercation between the deceased and the accused. The altercation between the two appear as usual." We are not convinced that this trivial nature of altercation will instigate the accused appellant to take such a harsh and cruel action. He further deposed that; "I cannot state the cause of verbal altercation between the deceased and the accused. The altercation between the two appear as usual." We are not convinced that this trivial nature of altercation will instigate the accused appellant to take such a harsh and cruel action. Therefore, we are unable to agree with the findings of the learned lower Court, and therefore, we are not giving any weight to this circumstance. 19. The learned Counsel for the State argued that the learned Trial Court has not considered the evidence of Kishore (P.W. 3) and Ashok (P.W. 7) individually. There is no discussion whatsoever in the judgment, means independent evaluation of their evidence as eye witnesses. The learned Trial Judge committed an error in discarding the evidence of these witnesses merely because it is inconsistent with the evidence of Comrade Mahadeo Haramkar (P.W. 1) and the first information report lodged by him. The powers of the appellate Court being wide and full, even at this stage we can appreciate the evidence of these witnesses and could definitely come to the contrary findings than the findings arrived at by the learned Trial Court, if really so, there is a cogent, clinching and unimpeachable evidence on record. Therefore, the learned Counsel for the State has taken us through the evidence of Kishor (P.W. 3) and Ashok (P.W. 7) and submitted that nothing is shown in the evidence of these two witnesses why they have implicated the accused/appellant. There was no animus for these witnesses to speak against the appellant accused. It is neither a rule of law, nor of prudence that if nothing is found against the witnesses to show that they were interested or inimically disposed towards the complainant, then their evidence as such has to be accepted on its face value and the Court has to base its findings and conclusions only on their evidence without assessing the probabilities of their evidence or without considering the other factors and features of the case as would be evident on the material on record. The Judge has to apply its mind to properly assess and judge the evidence on the record by the yardstick of probabilities, its intrinsic worth and the animus of witnesses, and he is not an automaton to mechanically compute the evidence on record without assessing the same in the context and participation of the above considerations. The Judge has to apply its mind to properly assess and judge the evidence on the record by the yardstick of probabilities, its intrinsic worth and the animus of witnesses, and he is not an automaton to mechanically compute the evidence on record without assessing the same in the context and participation of the above considerations. 20. Shri Ahmad, the learned Counsel argued that the evidence of Mahadeo (P.W. 1) is a hearsay one, and therefore, ought not to have given much weight to find fault with the evidence of Kishor (P.W. 3) and Ashok (P.W. 7) while appreciating their evidence. It is not disputed that Mahadeo Haramkar (P.W. 1) is a person who moved the wheels of investigation after reporting the 'matter to the Police Station, Rajapeth, Amravati. On his report Ex. 17, offence was registered and immediately the police commenced investigation. It is an admitted fact that Comrade Mahadeo Haramkar (P.W. 1) had visited Irwin Hospital and after getting information from the persons assembled in the premises and particularly from Kishor (P.W. 3), Ashok (P.W. 7) and Anil (P.W. 9) reported the matter to police. We have discussed the evidence of Kishor (P.W. 3) and Ashok (P.W. 7) who specifically deposed that they have not informed to Comrade Haramkar or anybody else. But the fact mains that Ext. 17 i.e. the first information report, made by Mahadeo Haramkar (P.W. 1) which speaks that the accused appellant and his two unnamed sons assaulted deceased. Many omissions, contradictions and in consistencies in the evidence of Mahadeo Haramkai (P.W. 1), Kishor (P.W. 3), Ashok (P.W. 7) and Anil (P.W. 9) have been brought on record and the learned Trial Court has rightly discussed and discarded. What is "hearsay" has been discussed by their Lordships of the Supreme Court in a case report in J.D Jain v. Management, State of Bank of India3. In para 10, Their Lordships observed that; "The word 'hearsay' is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else, (See Stephen on Law of Evidence). The Privy Council in the case of Subramaniam v. Public Prosecutor (1956) 1 W.L.R. 965 observed: "Evidence of a statement made to a witness who is not himself called as a witness mayor may not be hearsay. The Privy Council in the case of Subramaniam v. Public Prosecutor (1956) 1 W.L.R. 965 observed: "Evidence of a statement made to a witness who is not himself called as a witness mayor may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other person in whose presence those statements are made." 21. Shri Manohar, the learned counsel for the appellant accused on the contrary argued before us that if the learned Trial Judge would have considered the following circumstances, the findings for discarding the evidence of Kishor (P.W. 3) and Ashok (P.W. 7) would have been more strengthened. Learned Counsel for the appellant attracted our attention to the following circumstances from in the evidence of Kishore (P.W. 3):- (i) Para 2 "I then started shouting and, therefore, our neighbour Gokhale came there and we four of us put the deceased in a rickshaw brought by Ashok - my brother. I accompanied deceased in the rickshaw. The rest of them followed the rickshaw on bicycle. While we were as such going in rickshaw, I asked the deceased as to why he was assaulted. The deceased then replied that there was some verbal altercation in the marriage hall. He then started voluntarily uttering repeatedly his grievance that he was assaulted with knife by the accused." In para 10 he deposed that: "Since I myself had seen the accused assaulting the deceased with knife, it was not necessary for me to confirm the same from the deceased. Accordingly, I had not asked him, but I had asked while we were in rickshaw, as to what happened. My attention is now invited to a portion marked 'C' to the effect that while we were in rickshaw I asked the deceased as to what had happened I cannot assign any reason as to why the police recorded this portion in my statement. My attention is now invited to a portion marked 'C' to the effect that while we were in rickshaw I asked the deceased as to what had happened I cannot assign any reason as to why the police recorded this portion in my statement. I cannot say as to why there is omission, in my statement that the deceased told me the cause of the incident as verbal altercation taken place in marriage ceremony cannot state as to why there is omission in my previous statement that the deceased repeatedly uttered that the accused had assaulted him with knife." (ii) Para 2: "After about 5 minute's time, Comred Haramkar arrived there. He then asked me if the deceased had talk. I told him that yes, he could talk and talked. He also ascertained whether any complaint was made to the police. I replied that I was not aware if any complaint was made. Comred Haramkar then left" (iii) Para 7: "It did not happen that in reply to the questions of Comred Haramkar, Anil Haramkar volunteered to him that the deceased had talked. It did not happen that when Comred Haramkar questioned us, both of us were weeping and Anil Haramkar had replied him that the deceased had talked. My attention is now invited to the portion marked 'B' to the effect that while I and Anil were weaping Comred Haramkar asked us if the deceased had talked and then I and Anil replied to him that the deceased indeed had talked. I cannot assign any reason as to why, I had at tributed these replies to myself and Anil in the Police Statement." (iv) Para 7: "It is true that I myself had not told or volunteered to Ashok Gokhale that the deceased was assaulted by knife by the accused". (v) Para 7: "It is true that I had not told Comred Haramkar, that I myself had seen the accused assaulting the deceased with knife. It is true that I also had not volunteered to any of the persons assembled in the courtyard of the hospital, about the accused assaulting the deceased or the deceased stating this fact to me." (vi) Para 9: "It is true that City Kotwali Police Station is situated very near by Rajkamal Chowk. It is also true that the other Police Station viz. It is also true that the other Police Station viz. Rajapeth P.S. is also situate at the same distance from Rajakamai Chowk. It is true that even while we were at Rajakamal Chowk, I had not asked any of us to lodge the report with police." (vii) Para 9: "It is true that none of us present there, disclosed the name of the accused to the doctor as the assailant of the deceased". (viii) Para 10: "Since I myself had seen the accused assaulting the deceased with knife, it was not necessary for me to confirm the same from the deceased. Accordingly, I had not asked him, but I had asked while we were in rickshaw as to what happened. My attention is now invited to a portion marked 6' to the effect that while we were in rickshaw asked the deceased as to what had happened. I can not assign any reason as to why the police recorded this portion in my statement. I can not say as to why there is omission in my statement that the deceased told me the cause of the incident as verbal altercation taken place in marriage ceremony". (ix) Para 12: "According to me little blood had fallen in the ‘Angan’. I had not any occasion to go to kitchen or sitting room hall of my uncle, the deceased. (x) Para 12: "I had not stated to anybody, that I had witnesses the accused assaulting the deceased with knife. I also had not stated to anybody as to what the deceased talked or uttered." 22. Besides the circumstances considered by the learned trial Judge to discard the evidence of Kishor (P.W. 3), his evidence discussed in the preceding para is over whelming to create doubt in ones mind that though he came on the landing of the stair case, after hearing the shouts, but he has not seen the assault and the assailant. Kishore's subsequent conduct of not-disclosuring the incident of assault and assailant to anyone, till his statement was recorded by police late in night, is a clear indication of his not witnessing the incident. Thus, benefit of doubt goes to accused. 23. The evidence of Ashok (P.W. 7) was assailed attracting the attention to his following versions. (i) Para 6: "Kishore was present when I inquired from the deceased. Kishore was also present when the deceased told me". Thus, benefit of doubt goes to accused. 23. The evidence of Ashok (P.W. 7) was assailed attracting the attention to his following versions. (i) Para 6: "Kishore was present when I inquired from the deceased. Kishore was also present when the deceased told me". However, this fact did not depose by P.W. 3 Kishore. (ii) Para 6: "Gokhale was present when we had helped the deceased to sit in rickshaw. I had not disclosed to Gokhale that myself had seen the accused running away with a knife is his hand." (iii) Para 6: "Neither myself, nor two of my brothers, had disclosed to Gokhale that the accused had assaulted deceased by means of knife." (iv) Para 7: "It is true that on being asked by Comrade Haramkar, neither myself nor Kishor or Ani1 Haramkar had told Comred Harmkar, the words spoken by the deceased. Comred Haramkar was merely told that the deceased had spoken. It is true that myself, or Kishore my brother, had not told Comred Haramkar that the accused had assaulted the deceased by means of knife. It is true that neither I or Kishore had informed Comred Haramkar, that the accused was seen running away with knife in his hand. Comred Haramkar had informed us that he was proceeding to lodge complaint with the police. Inspite of this, we had not disclosed to him the aforesaid true facts." (v) Para 8: "It is true that while Gokhale was at Hospital, I had not told him that the deceased was assaulted by the accused by means of knife." 24. The circumstances discussed in the preceding para, particularly the fact of non-disclosure of the name of the assailant and any statement, if any, made by deceased, either to Shri Gokhale, Comrade Naramkar and others, gives an irrevocable impression that Ashok Karule (P.W. 7) has not seen the accused running away with knife. The evidence is thus tainted one. 25. Anil Mahadeo Haramkar (P.W. 9) the son of Mahadeorao (P.W. 1) was working in the tailoring shop of deceased since before the alleged incident. Deceased Ramhari was distant cousin of his father. The evidence is thus tainted one. 25. Anil Mahadeo Haramkar (P.W. 9) the son of Mahadeorao (P.W. 1) was working in the tailoring shop of deceased since before the alleged incident. Deceased Ramhari was distant cousin of his father. As per his version, he asked the deceased while he and Kishore were carrying him to Irwin Hospital in Auto-rickshaw and he told him that: "After the marriage ceremony in the Mrugendra Math was over, an altercation took place in between himself and the accused, outside the marriage hall. He then told me that after this altercation the accused forcibly entered in his house and there deal him knife blows." However, Kishore did not support this version. Anil further deposed that; "I made the deceased lie down on the bench. I then again asked the deceased as to how it had happened and the deceased again repeated the same thing, but added that I should look after his wife and the affairs of his shop." This witness made no query about the injuries either with Kishore or Ashok. They too on their own accord not disclosed about the incident. Anil deposed that; “Until we reached Irwin Hospital by auto-rikshaw, I had not questioned Kishore about the incident. I had not questioned Kishore Karule about the incident till I was in the Irwin Hospital and before going to Dr. Barbde's Hospital. In other words it is true to suggest that on the day of the incident, I had not questioned Kishore Karule about the incident. Likewise Kishore Karule also did not volunteer to me about the incident. Likewise I had also not made any inquiry with regard to this incident with Anil Karule, on that day. Except for what Anil Karule, told me in the Tailoring shop, he did not volunteer to me on that day any other information with regard to the incident". One fails to understand that if once the deceased made a statement to this witness in Auto-rickshaw, what was the propriety to repeat the query. Consequently, Anil was asked in cross-examination; "Question: Can you assign any reason as to why you repeated your question to the deceased when he was lying in the hospital on the bench? Answer: I can not give any reason". It is obvious that deceased made no statement to Anil in Auto-rickshaw and, therefore, Anil asked the deceased how it had happened. Answer: I can not give any reason". It is obvious that deceased made no statement to Anil in Auto-rickshaw and, therefore, Anil asked the deceased how it had happened. The fact of assault alleged to have been disclosed by deceased in Irwin Hospital to Anil, does not impress us because Kishore, Ashok and Gokhale did not speak about this. According to the witnesses, deceased breathed his last in the hospital by about 3.45 p.m. Anil was in the hospital then went to the house of deceased, next day attended the funeral, but he did not disclose to anyone the dying declaration made by the deceased. Though he was available to police, police also failed to record his statement of the earliest opportunity. For delay, there is no explanation. Anil deposed that after cremation I came back to my house'. "On being called I reached police station by about 6.00 p.m. in the evening. None else except the police constable had accompanied me to the Police Station. Police on that occasion recorded my statement. It will be true to suggest that until my statement was recorded by police, I had not disclosed to anyone the dying declaration made by the deceased." The evidence of Anil does not inspire confidence and thus, the learned trial Judge rightly rejected. 26. Mr. Manohar, the learned counsel for the appellant accused has attracted our attention to the spot Panchanama Ex. 19, and submitted that the entire incident had taken place in the hall and kitchen, and therefore, there was a pool of blood. Secondly, the story of finding blood in the rear Angan of the house of the deceased is concocted story by Karule brothers. To substantiate his submission, the learned counsel took us to the spot panchanama. Recitals of para 2 of the panchanama are as under; "When we entered the central hall on the western side of the kitchen through the door on the eastern side, it was o13scrved that the wooden door having one shutter on the western side of the said hall is closed from the inner side. One double folder used red, green and yellow coloured carpet on which Ramhari Gopalrao, Haramkar was sleeping is lying there, and blood has fallen on its central portion on the upper side. One double folder used red, green and yellow coloured carpet on which Ramhari Gopalrao, Haramkar was sleeping is lying there, and blood has fallen on its central portion on the upper side. On the western side of the carpet and on the eastern side of the sofa set, one white round small pillow is lying on which there are blood stains at several places……………….. The stains of blood are lying from the central portion of the carpet and the sofa chairs to the door on the western side. The said room admeasures 12 feet from south to north, and 13 feet from east to west. On the eastern side of the said room there is a Kitchen. There is a pool of blood at the, central portion of the eastern side door of the hall to the eastern side door of the kitchen and the blood-stains are lying upto the door. The titles are fitted in the whole house. The pavement is fitted within the wall compound and blood is lying on the step of the door of the kitchen and on the low inside of pavement and there is a foot mark stained with blood. From this spot to the open space on the pavement on the northern side upto the gate on the western side there are blood stains at several places. The blood stains from the main hall, Kitchen and from the lower side of the step of eastern side door thus from the three places have been scraped out and collected in separate paper packets for the purpose of sending to the office of Chemical Analyser…………." Shri Vijay Pargaonkar (P.W. 16) - Circle Police Inspector who visited the spot of incident and prepared the spot panchanama deposed as follows; "I then proceeded to the spot which is the house of the deceased. There, in the presence of panch witnesses, I drew spot panchanama, Ext. 19. Hound considerable blood in the drawing room of the deceased. I noticed the blood on the Galicha, as also on the pillow cover. There, in the presence of panch witnesses, I drew spot panchanama, Ext. 19. Hound considerable blood in the drawing room of the deceased. I noticed the blood on the Galicha, as also on the pillow cover. I found trail of blood starting from this room and leading up to the back courtyard which continued even thereafter to the gate in front, through the passage by the side of the house." In view of the above evidence and considering the injuries on the person of the deceased and the pool of blood found in the hall and the kitchen, it gives rise that the assault had taken place in the hall and the kitchen. Thus, there is considerable force in the submissions made by Shri Manohar, the learned counsel for the appellant. After receiving the injuries, the deceased might have came out Hearing the shouts, the attention of Karule brothers was attracted. Thereafter they helped him and lifted him to Irwin Hospital, Amravati. This circumstance as well as the evidence of Kishor (P.W. 3) and Ashok (P.W. 7) gives an impression to us that they might have came on the scene of offence after the assailants fled away. However, thereafter, they have spin out the story that the appellant accused has assaulted the deceased. It has been rightly said that man may lie, but not the circumstances. Therefore, considering the evidence and the various circumstances discussed in preceding paras, the evidence of the prosecution witnesses, particularly that of Kishor (P.W. 3), Ashok (P.W. 7) and Anil (P.W. 9) has been rightly discarded by the learned trial Court and we too feel it rather unsafe to fast on criminal liability upon the accused placing reliance on such testimony of the witnesses and to take another View. 27. Shri Ahmad, the learned counsel for the State strenuously argued that even if the evidence of an eye-witness is discarded, the conviction can be based on the dying declaration itself. There is no dispute about this proposition. The dying declaration, if believed, the conviction can be based. However, in the instant case, the facts and circumstances are altogether different. In the instant case, the dying declarations are alleged to have been made by the deceased to the witnesses i.e. Kishor (P.W. 3), Ashok (P.W. 7) and Anil (P.W. 9), whose evidence has been discarded by the learned trial Court. However, in the instant case, the facts and circumstances are altogether different. In the instant case, the dying declarations are alleged to have been made by the deceased to the witnesses i.e. Kishor (P.W. 3), Ashok (P.W. 7) and Anil (P.W. 9), whose evidence has been discarded by the learned trial Court. We have carefully considered the evidence of Kishore (P.W. 3), Ashok (P.W. 7) and Anil (P.W. 9) and reasons and findings recorded by the learned trial Judge, we find it hazardous to rely on the so-called testimony of the above witnesses even on the point of dying declarations, in view of the fatel infirmities in not telling any body anything about the incident and alleged dying declarations. 28. A complete perusal of the evidence and the circumstances of the case will thus show that there is not a single circumstance which could unequivocally lead us to the conclusion that the appellant-accused committed the murder; In case of circumstantial evidence, the circumstance should point only to the guilt of the accused and no other' explanation should be possible. This *Sic is missing in the present case. We are not in agreement with the learned Sessions Judge that the guilt of the accused was made out. As such the judgment cannot be upheld. 29. In the result, the appeal is allowed. The order of convictions and sentence passed against the appellant-accused, by Shri V.N. Damle, Sessions Judge, Amravati, on 1-4-1986 is set aside. Appellant Vishnu Waman Gaud is not found guilty of the offence punishable under Section 302 I.P.C. The sentence of imprisonment for life is set aside. He is acquitted of the charge and hence direct that the appellant-accused be set at liberty forthwith if not required in any other case. He is on bail His bail bonds and sureties shall stand discharged. Appeal allowed. 1. A.I.R. 1980 S.C. 559. 2. A.I.R. 1979 S.C. 1949. 3. A.I.R. 1982 S.C. 673.