JUDGMENT (ORAL) B.D. Wahane, J.- By this appeal, the appellant/accused Najukrao s/o Ranu Achala, challenged the Judgment and order passed by the Addl. Sessions Judge, Gadchiroli in Sessions Case No. 83/89, on 7th February, 1990, convicting the appellant/accused for the offence punishable under section 302 of Indian Penal Code, and sentencing him to suffer imprisonment for life and a fine of Rs. 1000/- in default of fine to suffer R.L for 6 months. 2. The prosecution case, in brief, is as follows: The appellant/accused is the younger son of deceased Manibai and P.W. 1 Ranu Achala. P.W. 1, Ranu Achala and deceased Manibai were driven out of their house by the appellant/accused about 1½ years before the alleged incident and, therefore, P.W. 1 Ranu Achala and deceased Manibai were residing in the hut constructed in the field. The appellant/accused was residing with his wife and children in the village Yermagad. The appellant/accused was arrested by the Police as he was found in possession of a country rifle. He was in Jail for about 2 months. This incident had taken place before the incident of death of Manibai. During the absence of the accused, his bicycle was removed by his brother-in-law Tulshiram Usendi and he reached the said bicycle at the hut of Ranu the father of the accused. 3. On or about 3.7.1988, at about 7.00 p.m. while Ranu (P. W. 1) and his wife deceased Manibai were sitting in their hut, the accused came there and alleged that his father Ranu stolen his bicycle. The accused asked Ranu to reach the bicycle to his place. Due to fear, Ranu (P. W. 1) reached the bicycle to the house of the accused. When Ranu was at the house of the accused, he was beaten by fists, and kicks. Accused pushed Ranu(P.W. l) on a peg. The accused was about to beat Ranu with a burning firewood, he was saved due to intervention of Khushalrao Awasare (P.W. 9). Ranu escaped and returned to his hut. Ranu (P. W. 1) disclosed the entire incident to his wife Manibai (deceased). Ranu (P.W. 1) expressed to his wife Manibai that he apprehends danger from his son and, therefore, he would go to narrate the incident to his daughter Ashibai and son-in-law at village Murmadi. When he started to proceed towards Murmadi, he saw the-accused coming to his hut. Ranu (P. W. 1) disclosed the entire incident to his wife Manibai (deceased). Ranu (P.W. 1) expressed to his wife Manibai that he apprehends danger from his son and, therefore, he would go to narrate the incident to his daughter Ashibai and son-in-law at village Murmadi. When he started to proceed towards Murmadi, he saw the-accused coming to his hut. Out offer, he has hidden himself behind the bushes. His wife Manibai was, however, in the hut. The accused went inside the hut. According to Ranu, he heard the voice of beating and pressing throat. He also heard voice of Manibai as 'Hoo, Hoo'. Ranu being very much frightened immediately proceeded towards the village Murmadi. According to Ranu, he narrated the incident to his daughter Ashibai (P. W 2) and son-in-law Tulshiram. Ranu stayed at the house of his daughter for 2 nights. 4. On the morning of Wednesday, Ranu returned to Yermaged and went to his hut. He found his wife Manibai lying dead on the ground. Her clothes and hair were totally burnt. Her arms were also burnt. He immediately rushed to the house of one Budhu Kidami (P. W. 5) and narrated the incident to him. Budhu Kidami accompanied Ranu to his hut. Thereafter, both went to the outpost Malewada. Budhu was sent back for guarding the dead body of Manibai Ranu went to Police Station, Purada and lodged oral report (Exh. 14). P.S.I., Katkar (P.W. 10) registered crime No. 10/88 under section 302 of Indian Penal Code against the accused on 10-3-1988. Ranu was sent to the Medical Officer, Primary Health Centre, Parada. Doctor Lengure (P.W. 5) examined Ranu. Doctor Lengure found scratches over middle of right 12th rib on back side. On the same day, P.S.I. Katkar proceeded to the place of incident. In presence of panchas, P.S.I. Katkar prepared the spot panchanama (Exh. 22) and inquest panchanama (Exh. 23). He seized earth from the place of incident. He also seized the bicycle, burnt parts of the cot and burnt fire wood from the place of incident. The body was practically completely burnt. It was not possible to shift the body for postmortem examination. Hence, the services of Dr. Pillare (P.W. 4) were summoned. Dr. Pillare conducted post-mortem examination on the spot. Dr. Pillare found the face, neck and chest completely burnt and back side of the body burnt upto the buttock. According to Dr. The body was practically completely burnt. It was not possible to shift the body for postmortem examination. Hence, the services of Dr. Pillare (P.W. 4) were summoned. Dr. Pillare conducted post-mortem examination on the spot. Dr. Pillare found the face, neck and chest completely burnt and back side of the body burnt upto the buttock. According to Dr. Pillare, the burns which were found on the persons of deceased were post-mortem. Besides burnt injuries, Dr. found some injuries and fractures on the skull indicating that there might be blunt trauma over the head resulting into fracture bone and injury to brain causing death. 5. The accused was arrested on the same day i.e. on 10th March, 1988. On the next day, the Investigating Officer seized a big fire wood from the hut of Ranu in presence of the panchas. 6. It needs mention that at the time of death, deceased Manibai the mother of the accused was aged about 60 years. 7. After completion of the investigation, the Investigating Officer filed the charge sheet in the Court of Judicial Magistrate, First Class, Desaiganj who committed the case to the Sessions Court for trial. 8. To substantiate the charge, the prosecution examined in all 11 witnesses. 9. In the instant case, the defence of the accused is that he has been falsely implicated in this case because of the quarrel and enmity with his father Ranu and sister Ashibai. According to the accused, Ranu- his father had expressed his desire to transfer his land to Ashibai instead to him. Ashibai feared that the accused may object and, therefore, they have concocted the story falsely involving him. 10. The defence has not challenged the injures, the evidence of Dr. Pillare and doctor's report (Exh. 9). In fact, cross-examination to Doctor was declined. Dr. Pillare (P.W. 4) found the body of Manibai completely burnt. He found the body from head to the lower border of the chest was completely burnt. Back and right side of the abdominal wall was burnt. Skull was completely detached from the trunk. Skull bone, cervical vertebra, ribs of the chest were exposed. Maggots over the exposed Viscera of the chest and abdomen were seen. Left hand was detached away from the body. Right arm was absent. Face and chest were completely burnt upto bone. Back and right side of the abdominal wall was burnt. Skull was completely detached from the trunk. Skull bone, cervical vertebra, ribs of the chest were exposed. Maggots over the exposed Viscera of the chest and abdomen were seen. Left hand was detached away from the body. Right arm was absent. Face and chest were completely burnt upto bone. Skin over the left arm and half of the forearm anterior abdominal wall and lower extremity showed no bullies formation. Dr. Pillare found the skull bone on left side fractured at temporal region and partially burnt. The fracture line extended from temporal parietal suture. There was a fissure fracture on the squamous part of temporal bone. Fracture lines are 3 in number half inch away from each other. One fracture line extended upward upto the parietal bone about 3". Dr. Pillare also found the skull bones absent on the skull. Brain matter was burnt into a blackish soft mass. Maggots were present. On cut section of the brain, it shows dried covering under which brain matter on left side and corresponds to the area of fracture bone. On the basis of the injuries, doctor opined that such type of burn can be possible only in postmortem burn i.e. after death. Doctor opined that the exact cause of death and the time of death cannot be given. From the evidence of Doctor Pillare, it is obvious that the burns were after death and injury to brain might have caused the death of Manibai. This excludes the possibility of her suicidal or accidental death and clearly establishes that she met with homicidal death. The prosecution, thus, proved that deceased Manibai died of homicidal death. 11. The learned trail Court held that the appellant accused is the person and none else who committed the murder of his mother Manibai and thereafter set her on fire and rendered the finding of conviction. Admittedly there is no direct evidence in this case. There is no eye-witness to the circumstances leading to the death of Manibai. The prosecution edifice rests on circumstantial evidence. The material evidence of Ranu is on the point of last seen accused in his hut with his wife Manibai. Admittedly there is no direct evidence in this case. There is no eye-witness to the circumstances leading to the death of Manibai. The prosecution edifice rests on circumstantial evidence. The material evidence of Ranu is on the point of last seen accused in his hut with his wife Manibai. The learned trial Judge found corroboration to the evidence of Ranu, from the circumstances narrated on page 19 of the Judgment i.e. i. accused drove his parents from his house about 1½ years before the incident; ii. accused coming to the hut for bicycle; iii. beating by accused; iv. narration of incident to Manibai by Ranu after his return to hut; v. due to fear fled to Murmadi; vi. After sun set Ranu seen accused coming to his hut and entering; vii. Ranu heard voice of beating and also her voice as 'Hoo, Hoo'; viii. No evidence to show that after Ranu fled away to Murmadi, anybody else besides the accused entered into the hut. 12. Ranu (P.W. 1) deposed that he reached the bicycle at the residence of the accused where he was assaulted by the appellant/accused. Due to interference of Khushal (P.W. 9), he could escape and reach his hut. While he was proceeding to village Murmadi where his daughter Asibai resides, he saw the accused coming to his hut. Because of fear he has hidden himself behind the bushes and seen the accused entering into his hut. He could hear the beating and throttling. He heard the voice of his wife as "Hoo, Hoo". Thereafter, he left the place and went to Murmadi at the residence of his daughter and son-in-law to narrate the incident to them. 13. Admittedly, he returned back to his hut after 2 days. According to the prosecution, the incident of assault on Ranu took place on Monday and he returned back to vil1age on Wednesday. 14. When Ranu returned back to his hut, he found his wife Manibai dead and in burnt condition. Immediately, he rushed to Budhu and thereafter to outpost and then Police Station, Purada. 14. Shri M.R. Daga, the learned counsel for the appellant/accused strenuously argued that the evidence of Ranu (P. W. 1) is not worthy of credence. 14. When Ranu returned back to his hut, he found his wife Manibai dead and in burnt condition. Immediately, he rushed to Budhu and thereafter to outpost and then Police Station, Purada. 14. Shri M.R. Daga, the learned counsel for the appellant/accused strenuously argued that the evidence of Ranu (P. W. 1) is not worthy of credence. According to the learned counsel of the accused, if really Ranu (P.W. 1) had seen the accused entering the hut and heard the noise of beating and throttling, definitely he would have gone to the rescue of his wife. If he was under the spell of fear, he would have gone to the village to make hew and cry about beating and throttling to his wife and bring villagers. Definitely it is expected from Ranu to rush to Khushal who earlier rescued him from the clutches of the accused. As a natural course of event, it is expected from a prudent man, as a natural conduct to disclose the fact of accused's entry in the hut beating and throttling his wife as also hearing the voice of Manibai as "Hoo, Hoo" to her daughter and son-in-law. It is his evidence that he has gone to Murmadi to disclose the incident to them. But fact remains that he did not disclose, else all would have rushed to the village to see what had happened to Manibai. Similarly, it is expected to lodge report. In Para 4 of his deposition he stated that: "he lodged report about the incident of beating to him by the accused." The report is not placed on record. Such evidence is absent. No explanation devoid from natural conduct. Neither Ranu nor his daughter deposed that Ranu disclosed the fact of accused entering in hut, beating and throttling to Manibai. In the instant case, non-disclosure of the alleged act of accused is certainly fatal to the prosecution. According to Shri Daga, the learned counsel for the appellant/accused, it is just possible that immediately accused might have left the place and subsequently the incident of assault and burning might have taken place. Assuming but not admitting that the appellant/ accused had been to the hut of Ranu on Monday evening, this suspicious circumstance not enough to warrant his conviction. 15. Assuming but not admitting that the appellant/ accused had been to the hut of Ranu on Monday evening, this suspicious circumstance not enough to warrant his conviction. 15. It is to be considered that whether the evidence of Ranu (P.W. 1) is reliable one and that whether on the sale testimony of Ranu, it can be inferred that the appellant/accused has committed the murder of his mother and none else? No doubt there is not whisper either in the evidence of Ranu (P.W. 1) or his daughter Asibai (P.W. 2) that on Monday itself when Ranu had been to Murmadi to the resident of his daughter Asibai, he disclosed the fact regarding arrival of the accused, entering in the hut and thereafter assaulting and throttling as also about hearing the noise "Hoo, Hoo" of Manibai to his daughter Asibai or his son-in-law. Ranu only narrated the incident of taking the bicycle to the house of accused and assault on him. Thus, there is no corroboration to his testimony that Ranu has seen the accused entering in the hut and assaulting deceased Manibai. No doubt Budhusingh (P.W. 5) deposed that Ranu had been to his house in the morning hours of Wednesday and told him that on the previous day his son viz. the accused beat him regarding bicycle. He further told him that the accused had been to his hut, entered into the hut and assaulted his wife and throttled her, while he was hiding himself in the bushes. No doubt he was cross examined at length but nothing has been brought on record to say how he is giving false evidence. But that does not mean that his evidence be treated as a gospel truth. 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 accused, then his 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 materials on record. In fact, the Judge has to apply its intelligence to properly assess and judge the evidence on record by the yardstick of probabilities, its intrinsic worth and the animus of witnesses and he is not an automation to mechanically compute the evidence on record without assessing the same in the context and persecutive of the above consideration. Though Budhu (P. W. 5) has stated that Ranu (P.W. 1) disclosed him about the accused's coming towards the hut, entering in the hut, beating and throttling Manibai and he being frightened, left for Murmadi to disclose the incident to his daughter and son-in-law but it is not stated by Ranu that he had disclosed to Budhu about the incident, the evidence of Budhu can not be considered as a corroborative piece of evidence besides, this, there is no other evidence. 16. However, Shri Akhani, the learned A.G.P. has submitted that Ranu (P.W. 1) after seeing his wife dead, immediately went to the outpost Malewada and thereafter to Police Station, Purada and reported the matter. In F.I.R. itself he disclosed the entire story. Even if, Ranu lodged the F.I.R. showing himself as an eye witness to the entry and assault, it can not be temped as a requisite corroboration needed for the purpose for accepting the testimony of Ranu. As it is stated that Ranu (P.W. 1) has not disclosed the material fact regarding the coming of the accused, entering into the hut, assaulting and throttling deceased Manibai, he is not an absolutely reliable person. 17. The prosecution failed to solve the mystery or give any explanation regarding the availability of bicycle in the hut where the dead body was found. The specific story of the prosecution is that Ranu (P.W. 1) reached the bicycle to the house of the accused. Nowhere it is stated that the accused returned back to the field on the bicycle. However, the police found the bicycle of the accused in the hut itself. This controversy has not been solved by the prosecution. Therefore, the only irresistible conclusion is that the story of reaching the bicycle by Ranu to the house of the accused, as a result of threat appears to be concocted one. The appellant-accused specifically stated that there was no quarrel either with his father Ranu or anyone else regarding the bicycle. Thus, this circumstance is consistent wjth the defence. Therefore, the only irresistible conclusion is that the story of reaching the bicycle by Ranu to the house of the accused, as a result of threat appears to be concocted one. The appellant-accused specifically stated that there was no quarrel either with his father Ranu or anyone else regarding the bicycle. Thus, this circumstance is consistent wjth the defence. Shri Akhani, the learned A.G.P. for the State has posed a question instead finding solution that who else can commit the gruesome murder of Manibai than the appellant/accused. Accepting that Ranu and his wife deceased Manibai were driven out of the house by the appellant/accused about 1½ yrs. before the alleged incident, can not be a circumstance to develop enmity or grudge. There is no whisper that the appellant/accused either had any grudge or quarrel either prior to the incident or on the day of incident with his mother deceased Manibai. Therefore, no motive can be ascribed for committing such a heinous offence and that too of his own mother without rhyme or reason. The prosecution has to substantially prove its case. It must stand on it's own legs. The judicial process can only operate on the firm foundation of actual and credible evidence on record. Mere suspicion or suspicious circum- stances can not relieve the prosecution of it's primary duty of proving it's case against the accused beyond reasonable doubt. The Court of justice can not be swayed by sentiments or prejudiced against the person accused of the very reprehensive. 18. Even assuming that the accused was seen entering in the hut of Ranu i.e. accused was last seen is insufficient to prove the guilt. This aspect has been considered by Their Lordships of the Supreme Court in a case of Lakhanpal v. The State of Madhya Pradesh1. Their Lordships held that: "In prosecution for offence of murder the mere fact that the accused and the deceased (the real brother of the accused) were together in the field prior to the concurrence does not by itself lead to irresistible inference that the accused must have murdered the deceased. Decision of Madhya Pradesh High Court, reversed". Their Lordships held that: "In prosecution for offence of murder the mere fact that the accused and the deceased (the real brother of the accused) were together in the field prior to the concurrence does not by itself lead to irresistible inference that the accused must have murdered the deceased. Decision of Madhya Pradesh High Court, reversed". In a case of Gambhir v. State of Maharashtra2, Their Lordships observed: "Accepting that the accused was seen in the evening of the day of occurrence in the company of deceased, in the absence of any positive evidence about the probable time of death, it is difficult to connect the accused with the crime as there might be a long gap between the accused being seen in deceased's company and the time of the death of the three deceased. Many more persons might have come in between. Besides there was evidence on record to show that other persons also used to visit deceased's house". In a case of State v. Zilla Singh3, (Jammu and Kashmir High Court) it is observed that: "Where in a trial for murder neither the fact regarding the accused having been seen in the company of the deceased on the day of occurrence nor the recovery of the alleged weapon pursuant to accused's statement, was proved, and also the motive for committing murder was not established, the chain of such evidence on record could not be said to be so complete as to exclude all possible doubts regarding guilt of the accused. Hence, the accused is entitled to benefit of doubt". 19. Dr. Pilare deposed that he is unable to give the proximate time of death. The body was found on 3rd day. As already observed, (P.W. 1) Ranu has not disclosed the fact of coming of the accused to the field, his entry in the hut, assaulting and throttling Manibai, to his daughter and son-in-law. Besides his oral evidence there is no corroboration). No motive has also been ascribed. As such difficult even to think the involvement of the son for the gruesome murder of mother. Thus, considering the facts and circumstances, the evidence of Ranu (P.W. 1) is not at all credible. At any rate, the prosecution has failed to prove the guilt under section 302 of I.P.C. against the appellant/ accused. 20. As such difficult even to think the involvement of the son for the gruesome murder of mother. Thus, considering the facts and circumstances, the evidence of Ranu (P.W. 1) is not at all credible. At any rate, the prosecution has failed to prove the guilt under section 302 of I.P.C. against the appellant/ accused. 20. In the result, the instant appeal is al10wed.The Judgment and order of conviction and sentence passed by the Add!. Sessions Judge, Gadchiroli, is set aside. The appellant/accused Najukrao s/o Ranu Achala be released forthwith if not required in any other case. Appeal allowed. 1. A.I.R. 1979S.C. 1620. 2. A.LR. 1982 S.C. 1157. 3. 1973 Cr. L..J. 1384.