JUDGMENT - S.M. DAUD, J.:----This appeal takes exception to the conviction and sentence recorded against the appellant for the commission of an offence of murder punishable under section 302 of the Indian Penal Code. 2. The appellant was married to Laxmi about 18 months prior to February 1988. The couple was living at the house of the father of the appellant at Village Ghatani, Taluka Akkalkuwa, District Dhule. On 18-2-1988, the parents of the appellant were not at home and Laxmi was in the kitchen. The sound of a gun shot in the kitchen attracted the attention of P.W. 3 Narpatsing, who is the Police Patil of the village and certain others. When they came running, they saw Laxmi lying dead with a gun shot injury on the left mastoid region. The appellant was standing close by and near her feet lay the gun. The appellant was taken to the Akkalkuwa Police Station which place was reached after midnight. P.S.I. Patil of the said Police Station recorded a statement of the appellant which is inadmissible under section 25 of the Evidence Act, and, for which reason, we shall not refer to it at all. Laxmi's corpse was sent to the Medical Officer at the Primary Health Centre, Akkalkuwa. He found the injury mentioned above and opined that the said injury was ante-mortem. In Medical Officer Dr. Rane's notes, appears the opinion that the injury could not have been self inflicted, having regard to the position of the injury and the height of Laxmi. The wound had an entry point but not an exit point. In due course, a charge-sheet ascribing to the appellant the commission of offences punishable under section 302 of the Indian Penal Code and section 3 read with 25 of the Arms Act, 1959 as lodged. The Magisterial enquiry over, the appellant was committed to stand trial in the Sessions Court at Dhule. 3. The appellant pleaded not guilty. His defence was that he was not at home when the tragedy took place. This was because he had gone out to a shop to purchase bidis. When he returned from there, he saw Laxmi lying with a wound on her head and a gun near her feet. For no reason at all, he had been implicated in the killing of Laxmi. This was because he had gone out to a shop to purchase bidis. When he returned from there, he saw Laxmi lying with a wound on her head and a gun near her feet. For no reason at all, he had been implicated in the killing of Laxmi. P.W. 3 was a relation of his father and had demanded a share in the property some six months prior to 18-2-1988. The demand not having been acceded to, had left behind a trail of bitterness in the mind of Narpatsing. That is why he had concocted a case of the appellant having killed Laxmi. 4. To substantiate its case, the prosecution examined Narpatsing, Dr. Rane, Bahadursing, Bharatsing, P.S.I. Patil, etc. Bahadursing and Bharatsing had to be declared hostile because of their not supporting the prosecution. They were contradicted with the contrary statements made by them during the investigation. What was stated by the appellant within the hearing of Narpatsing could obviously not come on record as Narpatsing also was not excluded from the position of a Police Officer within the meaning of section 25 of the Evidence Act. The Sessions Judge held that the scene which met the eyes of Narsing (Narpatsing) and his companions when they came to the kitchen of the home coupled with an attempt made by the appellant to flee, sufficed to hold that he had murdered Laxmi. However, the appellant could not be said to be guilty under section 3 read with 25 of the Arms Act. According to the learned Sessions Judge, this was because:- "It has come in evidence that the gun in question was owned and possessed by accused's father. Accused and his father were joint and living in one and the same house and the gun was found lying in the room in which accused and deceased Laxmi were found at the time of the incident. But merely from these circumstances, it could not be said that accused had contravened the provisions of section 3 of the Arms Act." The obvious contradiction between this finding and the conclusion of the appellant being the murderer of Laxmi and using for the murder the gun figuring in the crime does not seem to have struck the learned Session Judge. Be that as it may, the acquittal under the Arms Act has not been questioned in a cross-appeal by the State. Be that as it may, the acquittal under the Arms Act has not been questioned in a cross-appeal by the State. However, that cannot come in the way of our supporting the conclusion of the learned Judge, without entirely subscribing to the reasons given by him. 5. Mr. Kotwal for the appellant submits that the conviction is ill-founded because of the Sessions Judge taking into consideration a circumstance which has not been proved. In fact, this circumstance is the result of a misreading of the evidence by the learned trial Judge. One of the circumstances, taken into consideration against the appellant, is an attempted flight if not the actual flight after or before the arrival of Narpatsing and the other witnesses. It does appear that the witnesses spoke of apprehending the appellant, not because he was making an attempt to run or while in flight, but so as to prevent him from resorting to flight. The difference is significant and the question is whether the appellant's being stationary is something which is consistent with his innocence and this because of the absence of any ill will between the complainant-thus there not being present a motive to explain the doing of the appellant. The absence of a motive is an important circumstance where the case against a person persecuted depends upon circumstances. But that is not so in every case based upon circumstantial evidence. The presence or absence of a motive would be of significance or otherwise, depending upon the strength or weakness of the circumstances. In the instant case, the fact that the appellant stood rooted to the spot or as Mr. Kotwal puts it "glued" may be on account of the fact of his realising the enormity of what he had done and the shooting being not the result of a deliberately conceived plan, but something done at the spur of the moment. The latter probability is more consistent, for if the killing of Laxmi had been the work of some intruder into the home during the alleged absence of the appellant on the bidi-fetching errant, the appellant would have shouted loud and clear, proclaiming his innocence. No such evidence is forthcoming and even the appellant in his examination under section 313 of the Code of Criminal Procedure does not say that he was, to use another expression of Mr. Kotwal, " stunned" at what had happened. 6. No such evidence is forthcoming and even the appellant in his examination under section 313 of the Code of Criminal Procedure does not say that he was, to use another expression of Mr. Kotwal, " stunned" at what had happened. 6. Next, Mr. Kotwal wants us to take into consideration the absence of corroboration to Narpatsing's evidence. Bahadursing and Bharatsing have not supported the account given by Narpatsing. We agree that Narpatsing is a Police Patil. That Bahadursing and Bharatsing are not telling the truth is proved by the testimony of P.S.I. Patil who speaks of their having said what has been repudiated at the trial by them, in the course of their interrogation by him during the investigation. Therefore, the denials by Bahadursing and Bharatsingh cannot be taken as an indication of the innocence of the appellant. Narpatsing's being the Police Patil would not justify the inference that be would tell lies to aid the Police in securing a conviction against an innocent person. Narpatsing's regard for the truth is established by his admitting that he had laid a claim to a share in the land being tilled by the appellant. He justifies this demand on the ground that he was a cousin of sorts and thus entitled to a share. But these answers, far from showing that the witness had a grudge, which had led into falsely implicating the appellant, show the exceptional regard the witness has for the truth. Significantly no attempt has been made to establish the theory of Laxmi's death having taken place during the absence of the appellant from the family home. Faced with this position, Mr. Kotwal wants us to consider the theory of Laxmi's death, though at the hands of the appellant, to be the consequence of an accident. The first difficulty in the path of the learned Counsel is the total absence of foundation for this defence. Section 105 of the Evidence Act is in these terms; "When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances." Now, we agree with Mr. Kotwal that the person prosecuted need not specifically plead a general exception to the Indian Penal Code, when he is prosecuted for an offence under that Code. But there has to be a foundation in support of the plea......whether advanced in a questioning under section 313 of the Code of Criminal Procedure or whether evidence led in defence or by way of suggestions put to prosecution witnesses under cross-examination. The theory of an accident in the instant case is something which has come out of the blue in this Court , and, for the first time. Counsel submits that it is not so improbable as to be totally discounted, having regard to the total absence of an explanation as to why the appellant should have shot his wife. In this connection, we are referred to the (State of Madhya Pradesh v. Digvijaysingh)1, reported in A.I.R. 1981 S.C. 1740. In that case, a defence of accident resulting in an acquittal by the High Court was reversed by the Supreme Court. But this feature apart, learned Counsel wants us to bear in mind the distinction between the facts of that case and those available in the instant case. In Digvijaysingh's case (supra), the gun used by the accused was his own and there was the additional circumstance that he had taken to flight and repeatedly escaped arrest when attempted to be caught by outsiders, In this case, the gun used by the appellant was not one belonging to him, but his father. That would not be so important a circumstance as Counsel suggests it is. After all, the gun was in the house which was a home to the appellant also. The appellant had access to the gun, and, it is that which is important. Counsel argues that the appellant would have no means of knowing whether the gun was loaded or otherwise. We see no reason why he should have been ignorant. After all, there were only two males residing in the house viz., the appellant and his father. The loading or otherwise of the gun would be known to both, for, it can be done only at leisure time when both the males were in the home. 7. Next, Mr. Kotwal says that in Digvijaysingh's case, the injury was on the back whereas here, the injury was on the left temple. The loading or otherwise of the gun would be known to both, for, it can be done only at leisure time when both the males were in the home. 7. Next, Mr. Kotwal says that in Digvijaysingh's case, the injury was on the back whereas here, the injury was on the left temple. But that does not make any difference for the nature of the injury is such as to totally exclude the possibility of Laxmi inflicting the same herself. Dr. Rane testifies that the assailant must have been at a distance of at least one feet away from the victim when the gun was fired. We cannot but agree, for there is no reason to justify disbelief in the opinion. The acquittal of the appellant under the Arms Act cannot be used as an argument to seek an acquittal under section 302 of the Indian Penal Code. Though we cannot reverse the said acquittal, i.e. the acquittal under the Arms Act, we must confess our dismay at the error committed by the learned Sessions Judge. If the appellant had taken custody of the gun and thereafter shot his wife, and if this was done without the implied or express consent of his father i.e. the licence-holder, the possession of the appellant to the exclusion of the father, stood established. That was enough to attract section 3 read with section 25(1B) (a) of the Arms Act. To the extent relevant, Clause (a) says: "Whoever---(a) has in his possession---any firearm or ammunition in contravention of section 3- shall be punishable with imprisonment for a term" Section 3(1) to the extent relevant reads thus: "Any person shall---have in his possession---any firearm or ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder-" 8. The learned Sessions Judge seems to have applied the principle underlying section 27 of the Indian Penal Code to acquit the appellant of the charge of having been in unauthorised possession of the firearm. This section says: When property is in the possession of a person's wife, clerk or servant on account of that person, it is not in that person's possession within the meaning of this Code. Explanation:---A person employed temporarily or on a particular occasion in the capacity of a clerk or servant is a clerk or servant within the meaning of this section. Explanation:---A person employed temporarily or on a particular occasion in the capacity of a clerk or servant is a clerk or servant within the meaning of this section. We shall assume that the principle underlying section 27 extends to an agent and this would include a son. But, in that case, the agent's possession has to be as the section contemplates: "On account of that person "Here, it is not the case of the appellant that he used the gun or took possession of it prior to its use, with the assent or even to the knowledge of the licence-holder, his father. When the person rightfully in possession is deprived of his article, even momentarily, his possession ceases. The possession is then transferred to whoever is in custody of the article however slight the duration of that person's possession be. The acquittal under the Arms Act is unfounded. It cannot be used as an argument to seek an acquittal under section 302 of the Indian Penal Code. We are aware that the case rests upon circumstances and that in such a case, the circumstances have to be established satisfactorily and the conclusion emanating from different circumstances must unerringly lead to the conclusion of guilt. Conscious of the need for caution, we hold that the circumstances in which the appellant was discovered in the kitchen with the corpse of Laxmi and the gun used can amount to nothing but the appellant having been caught with a "smoking gun". 9. Satisfied that the conviction and sentence are correct, we dismiss the appeal. Appeal dismissed.