JUDGMENT (ORAL) R.G. Vaidyunatha, J. - These two appeals are directed against the judgment dated 26th August 1994 in Sessions Case No. 14 of 1993 on the file of the District and Sessions Judge, South Goa, at Margao. We may mention that Criminal Appeal No. 33 of 1994 is filed by the accused through his advocate. It appears subsequently the accused sent a jail appeal and that is registered as Criminal Appeal No. 37 of 1994. In other words both the appeals are by the same accused and against the same judgment and therefore both are being disposed of by this common judgment. We have heard the learned counsel for the accused and the learned Public Prosecutor for the State. 2. The prosecution case is that P.W.1, P.W.6, the accused and the deceased Mallikarjun were working as labourers for a Contractor P.W.4 Devappa. It is also in evidence that these four persons were staying in a building which was under construction. It appears that on the fateful night, namely, 3rd February 1993, after dinner all these four persons slept in that building. It appears that during midnight the accused woke up P.W.1 Hanumantappa and told him that he has killed Mallikarjun and told him not to tell anybody. The accused is again said to have woken up Sadashiv and again confessed before him that he has killed Mallikarjun and asked him not to tell anybody. P.W.1 and P.W.6 went and saw the dead body of Mallikarjun with bleeding injury on the head. It is also the prosecution case that on the next morning the accused left the place. P.W.1 came back, contacted the Contractor P.W.4 and thereafter gave an oral complaint of the incident which resulted in the death of Mallikarjun. The police registered a case and took up the investigation. The police searched for the accused but he was not to be found. The spot panchanama was also prepared. The hammer which was lying nearby was also seized. The dead body was subjected to post-mortem examination. During the course of the investigation the accused came to be arrested from his native place on 6th February 1993. The clothes of the accused came to be seized. In the course of investigation some witnesses were examined. The hammer which was lying nearby was also seized. The dead body was subjected to post-mortem examination. During the course of the investigation the accused came to be arrested from his native place on 6th February 1993. The clothes of the accused came to be seized. In the course of investigation some witnesses were examined. After the usual investigation was completed charge-sheet was filed alleging that the accused had committed offences punishable under Sections 302, 201 and 506 of the Indian Penal Code. The defence of the accused was one of total denial. 3. The prosecution examined 11 witnesses in support of its case. The accused examined two witnesses on his behalf. After hearing arguments the learned Sessions Judge held that the prosecution has proved its case and convicted the accused of the offences punishable under Sections 302 and 506 I.P.C. and sentenced him to suffer imprisonment for life under Section 302 I.P.C. and suffer rigorous imprisonment for 6 months for the offence under Section 506 I.P.C. The accused was acquitted for the offence under Section 201 I.P.C. Being aggrieved by the conviction and sentence, the accused has come in appeal. 4. The learned advocate for the appellant has argued that the prosecution has not proved its case and particularly it was maintained that all the links in the chain of circumstantial evidence have not been established and the conviction and sentence may be set aside and the appeals allowed. On the other hand the learned Public Prosecutor has supported the judgment of the learned trial Court. 5. As far as the homicidal death of the deceased Mallikarjun is concerned, there is no dispute at all. It has been proved by the evidence of the doctor P.W.3 who performed the post-mortem that he found a head injury on the dead body. According to the doctor there was a contused lacerated wound on the head going deep in to the brain. There were pieces of bones, sand and scalp hair within. The doctor has given an opinion that the death was due to crushing damage of head and brain. The post-mortem report is marked as Exhibit P.W.3/A. The only question put to the doctor in the cross-examination was that the injury on the head could have been caused by a fall. It was denied by the doctor. The doctor has given an opinion that the death was due to crushing damage of head and brain. The post-mortem report is marked as Exhibit P.W.3/A. The only question put to the doctor in the cross-examination was that the injury on the head could have been caused by a fall. It was denied by the doctor. Hence in our view the unchallenged evidence of the doctor is sufficient to prove that the death of Mallikarjun was homicidal. 6. Admittedly there is no eye witness to the occurrence in question. The prosecution case depended upon the extra-judicial confession and circumstantial evidence. The learned Sessions Judge has rightly observed that in case of circumstantial evidence, motive plays an important role. After discussing the evidence, the learned Sessions Judge has rightly come to the conclusion that motive is not established. Even otherwise we find that the only witness who speaks about motive is P.W.10, Dhanraj. Even if we accept his evidence at face value, it will not prove that accused had any motive to kill Mallikarjun. In fact Mallikarjun had intervened in a quarrel between the accused and the witness. Further the important witness who speaks about the motive was examined by the Investigating Officer on 3rd April 1993, two months after the incident. In tile circumstances the learned Sessions Judge is justified in holding that the motive is not proved. Once we say that motive is an important piece of evidence in a case of circumstantial evidence, when motive is not proved, it improbabilises the prosecution story. It may be that in a given case even if there is no motive the prosecution may succeed if it is based on reliable and clinching evidence. Now let us see the evidence of P.W.1 and P.W.6. The main plank of the prosecution case is the extra-judicial confession said to have been made by the accused to P.W.1 and P.W.6. The learned trial Judge had held that the prosecution has proved this extra-judicial confession. After going through the evidence on record we are unable to sustain this finding of the learned trial Judge. As far as P. W.1 Hanumantappa is concerned he is the complainant. His evidence is that on the date of the incident, he did not take dinner and the others namely, the deceased, the accused and P.W.6 took their dinner and all of them slept. As far as P. W.1 Hanumantappa is concerned he is the complainant. His evidence is that on the date of the incident, he did not take dinner and the others namely, the deceased, the accused and P.W.6 took their dinner and all of them slept. Then during midnight accused came and woke him and told him that he had killed Mallikarjun. The witness then went down from the terrace to the room to the place where deceased was sleeping and saw Mallikarjun lying dead with a head injury. He started weeping. Then the accused threatened him not to weep and told him that he should not tell anybody. Then the witness says that after seeing this incident he went and slept. He says he saw the accused putting sand on the dead body and then later he, the accused and P.W.6 came to Margao to meet the Contractor. Then his further evidence is that accused threatened him that he should not tell anybody of this incident lest he be killed. Then he further says that he and Contractor came to the police station where he gave his oral complaint. Even on the face value of the evidence of P.W.C we find that his version appears to be highly improbable if the object of the accused was to screen himself from the offence, there was no necessity of going and telling P. W.1 and then again threatening that he will be killed if he tells anybody about the incident. According to the prosecution the accused absconding from the place was with the object of screening himself from the crime. If that was his intention, there was no necessity of the accused to wake up P.W.1 and tell him about the incident. Similarly even P.W.6 Sadashiv has told the Court that accused woke him up and told him about the incident and again threatened him that he should not tell anybody. The very theory given by P.W.1 and P.W.6 appears to be highly unnatural, artificial and improbable. The learned Sessions Judge has not looked at the case in a proper perspective. The learned Sessions Judge has also not taken into consideration that P.W.6 was examined by the Police on 6th April 1993 more than two months after the incident. The very theory given by P.W.1 and P.W.6 appears to be highly unnatural, artificial and improbable. The learned Sessions Judge has not looked at the case in a proper perspective. The learned Sessions Judge has also not taken into consideration that P.W.6 was examined by the Police on 6th April 1993 more than two months after the incident. Even one or two days delay creates a doubt about the veracity of the evidence of such a witness, but here is a case where the witness has been examined two months after the incident and the Court is asked to give life imprisonment or death sentence on the evidence of such a witness. 7. We also find discrepancy in the evidence of P.W.1 and P.W.6 as to what happened on that night. According to P.W.6 after he and accused slept, accused woke him up during midnight and told him that he had killed Mallikarjun. He even sought the help of the witness to remove the dead body and to bury it in a trench, which the witness refused. Then he says that accused went and informed P.W.1 and he also refused. But in the evidence of P.W.1 we do not get any idea that P.W.6 had got up and was present when he came down and saw the dead body. He further says that himself, P.W.1 and accused were sitting throughout the night as if they were keeping watch over the dead body but according to P.W.1, after seeing the dead body, himself and the accused went and slept as usual as if nothing had happened. Then the witness says that in the morning he went away to his native place and he came to be examined by the police only after two months. 8. The accused is not a criminal or a daredevil for P.W.1 and P.W.6 to be afraid of him. He was only a co-worker alongwith them. In the usual course P.W.1 and P.W.6 should have raised, hue and cry. Their silence throughout the night raises suspicion about their conduct and about their veracity. P.W. 6 has not explained as to why he went away to his village and was not available for two months. 9. In our view, the evidence of P.W. 1 and P. W. 6 does not stand the teat of scrutiny. Their evidence appears to be highly artificial, besides being improbable. P.W. 6 has not explained as to why he went away to his village and was not available for two months. 9. In our view, the evidence of P.W. 1 and P. W. 6 does not stand the teat of scrutiny. Their evidence appears to be highly artificial, besides being improbable. The learned trial Judge has not taken into consideration these infirmities in the evidence of P.W.1 and P.W.6. The fact that Mallikarjun died on that night has not been disputed. We can only say that the incident did not take place in the manner spoken to by P.W.1 and P. W.6. How Mallikarjun died could be anybody's guess. The Court has to decide whether the prosecution has proved that accused committed murder. Hence, in our view, the theory of extra-judicial confession which was pressed into service by the prosecution cannot be accepted. The other piece of evidence is that the clothes of the accused seized by the police at the time of arrest contains blood stains of the same blood group as that of the deceased. The learned trial Judge has accepted this as a circumstantial piece of evidence. In our view the finding of the learned trial Judge cannot be sustained. It is in evidence that on that night the accused, P.W.6 and the deceased were sleeping in the same room. The deceased had been done to death by somebody with a hammer blow. Blood has gushed out; therefore some blood falling on the clothes of the accused cannot be ruled out. Hence mere blood stains on the clothes of the accused cannot lead us to the conclusion that the accused committed the murder. 10. The next and important circumstance is about the gap between the date of the incident and the date of the seizure of the clothes. The prosecution theory is that the accused absconded in order to screen himself from the crime. If that was the intention of the accused, he would not be wearing the same clothes having blood stains three days later when he was arrested by the police on 6th February 1993. The evidence is that accused was found moving in a Zatra. The accused would not be moving in a public place, if the accused was absconding and further he would not be wearing the blood stained clothes, if his intention was to screen himself from the murder. The evidence is that accused was found moving in a Zatra. The accused would not be moving in a public place, if the accused was absconding and further he would not be wearing the blood stained clothes, if his intention was to screen himself from the murder. Therefore the theory that the accused was wearing the said clothes which contain blood stains at the time of arrest appears to be highly improbable. Hence this circumstance cannot be used against the accused. 11. Now coming to the last ground that the accused absconded. In the first place mere absconding is not sufficient to connect an accused with the crime. Even an innocent person may abscond due to fear of police or society. Even P.W.1 and P.W.6 could have advised the accused to go away from the place. If P.W.6 left the place on the Same day and was not available for two months though the accused was arrested after two days, if the theory of absconding is to be taken as a piece of evidence, it will go against P.W.6 more strongly than the accused. This fact has not been noticed by the learned trial Judge. This conduct may lead to some suspicion, but it is well settled, that suspicion, however strong, cannot take the place of legal proof. 12. One more circumstance pointed out by the learned trial Judge is that he accused and the deceased were sleeping in the same room. This is no circumstance at all since two more persons, P.W.1 and P.W.6 were also sleeping there. If theory of last seen together is to be applied, here is a case where the deceased was shown to have slept with three persons and not only one person. Since all the four persons were working under the same contractor and were sleeping in the same building, mere sleeping in the same room cannot be a circumstance for concluding that the accused alone committed the murder. 13. We have considered all the circumstances which were found against the accused by the learned trial Judge. In our view none of the circumstances taken individually or cumulatively point out to the guilt of the accused particularly in a serious offence for murder. Hence we arc constrained to hold that the prosecution has not proved its case and, therefore, the accused is entitled to be acquitted. 14. In our view none of the circumstances taken individually or cumulatively point out to the guilt of the accused particularly in a serious offence for murder. Hence we arc constrained to hold that the prosecution has not proved its case and, therefore, the accused is entitled to be acquitted. 14. In the result, both the appeals arc allowed. The conviction and sentence of the accused are hereby set aside. The accused/appellant shall be set at liberty forthwith, if not required in any other case. Appeals allowed.