JUDGMENT Vishnu Sabai, J. - By means of this appeal, the appellant has challenged the Judgment dated 17th December, 1981 passed by the Additional Sessions Judge, Ahmednagar in Sessions Case No. 86 of 1981, convicting and sentencing him in the manner stated hereinafter - (i) Under Section 302 IPC to imprisonment for life; and (ii) Under Section 323 IPC to pay a fine of Rs. 100/- i/d R.I. for 15 days. Briefly stated the prosecution case runs as under : P.W. 4 Chhabubai Ganpat Tupe and P.W. 5 Ashok Ganpat Tupe are the wife and son of the deceased Ganpat Genu Tupe respectively. The appellant was the younger brother of the deceased. Relations between the deceased, Chhabubai and Ashok on one side and the appellant on the other were highly strained. The cause of contention between the parties was a well jointly owned by them. It is alleged that on 7th May, 1981, at about 2-2.30 p.m., Ganpat took the bullocks to the well for water. 'That well was situated at a distance of about 50 feet from the houses of Ganpat and appellant which were adjoining. It is said that the appellant did not allow Ganpat to take water from the aforesaid well and hence, he came back to the house. Thereafter, abuses were exchanged between Ganpat and the appellant and the latter went running inside his house and brought an axe with which he gave one blow on the head of Ganpat. Ganpat fell down as a consequence of receiving the aforesaid blow. It is alleged that Chhabubai and Ashok who were witnessing the assault on Ganpat tried to inter vene and in that process, Ashok received an axe blow on his forehead. Thereafter Chhabubai started running towards the village. On the way, she met Dada Patil. Then, she went to the house of Police Patil Yadhav Govind Wagh. He was sleeping at that time. She woke him and told him about the incident. Along with the Police patil, she came back to her house. The Police Patil found that Ganpat was lying on the ground and appellant Murlidhar was standing there with something in his hand. The Police Patil bandaged the injuries on Ganpat and on a bullock cart, took him to the Civil Hospital, Ahmed nagar. Thereafter, he went to police station, MIDC. 2. The Police Patil found that Ganpat was lying on the ground and appellant Murlidhar was standing there with something in his hand. The Police Patil bandaged the injuries on Ganpat and on a bullock cart, took him to the Civil Hospital, Ahmed nagar. Thereafter, he went to police station, MIDC. 2. The FIR of the incident was lodged by Ashok Ganpat Tupe P.W. 5 on the same day 7th May, 1981 at 11.30 p.m. at police station, MIDC, District Ahmed nagar. It was recorded by Police Jamadar Ismail Patel P.W. 9. Evidence of Ismail Patel is that after recording the FIR, he sent Ashok Tupe (informant) to Civil Hospital, with a yadi for treatment. It appears that the deceased was admitted in Civil Hospital, Ahmed nagar between 7th May, 1981 and 12th May, 1981. On the latter date, he died there. On his death, the case was converted to one under Section 302 IPC. 3. Post Mortem examination of the dead body of the deceased was conducted by Dr. Bhaskar Pavale, P.W. 6 on 12th May, 1981. Dr. Pavale, found following ante-mortem injuries on the dead body: Incised wound on left occipital region 4½ x ½". The edges were tapering. The injury was horizontal, oblique in direction. It was bone deep. C.L.W. over the left fore-arm 1" x ½ skin deep. 3. C.L.W. over left knee ½ ’’ ½ "skin deep. On internal examination, he found: "Skull: Depressed communicated fracture over the temporal occipital bone, 5" in diameter on the left side behind left ear. Fracture of parietal bone 3" x ½"on left side, upwards and forward in direction. Fracture of temporal left side bone, 3" x ½ "horizontal in direction. There was subdural haematom a, posterior cranial fossa. Lacerations below the external injury mentioned above. In the opinion of Dr. Paville, the deceased died on account of injury to vital organ (Brain). In his statement in the trial Court, Dr. Pavale opined that the injuries of the deceased were fatal and could have been caused by article No. 1-axe shown to him. In his cross-examination, he stated that the three fractures sustained by the deceased must have been caused by one blow. 4. After the death of the deceased, investigation in this case commended. The same was conducted by PSI Shantaram Ahiwale, P.W. 11. In his cross-examination, he stated that the three fractures sustained by the deceased must have been caused by one blow. 4. After the death of the deceased, investigation in this case commended. The same was conducted by PSI Shantaram Ahiwale, P.W. 11. On 12th May, 1981 he prepared inquest - panchanama, panchanama of the scene of the incident and attached the blood-stained earth from the place of the incident. That very day, he recorded statements of Ashok Tupe, Chhabubai Tupe and others. At 2 p.m. same day, he arrested the appellant. On the pointing out of the appellant, a blood - stained axe and his blood - stained clothes were recovered. On 28th May, 1981, he recorded statement of Sukhadeo Nimase. He sent the recovered articles to Chemical Analyst for examination. On 15th June, 1981, he handed over the case papers to PSI Paithankar as he was transferred to Bombay. PSI Paithankar on 27th July, 1981, submitted the charge sheet. 5. The case was committed to the Court of Sessions in the usual manner. In the Trial Court, charges under sections 302 IPC and 324 IPC were framed against the appel1ant to which he pleaded not guilty and claimed to be tried. In the Trial Court, apart from tendering some documentary evidence, the prosecution examined as many as 11 witnesses. Three out of them namely Chhabubai Tupe P.W. 4, Ashok Tupe P.W. 5 and Sukhadeo Nimase P.W. 8 gave ocular account of the incident. In defence, no witnesses were examined. The learned Trial Judge rejected the evidence of recovery of weapon and blood - stained clothes on the pointing out of the appellant. He also rejected the evidence pertaining to motive, and the ocular account furnished by P.W. 8 Sukhadeo Nimase. He, however accepted the ocular account furnished by Chhabubai and Ashok and on the basis of the same, convicted and sentenced the appellant in the manner, stated above. 6. We have heard Mrs. Anita Agarwal for the appellant and Mrs. S.J. Pingulkar, Additional Public Prosecutor for the State of Maharashtra. We have also perused the depositions of prosecution witnesses, the material Exhibits tendered by the prosecution, the statement of the appellant recorded under section 313 Cr. P.C. and the impugned judgment. 6. We have heard Mrs. Anita Agarwal for the appellant and Mrs. S.J. Pingulkar, Additional Public Prosecutor for the State of Maharashtra. We have also perused the depositions of prosecution witnesses, the material Exhibits tendered by the prosecution, the statement of the appellant recorded under section 313 Cr. P.C. and the impugned judgment. After giving our anxious consideration to the matter, we are of the opinion that the instant is one of those cases wherein the appellant deserves the benefit of doubt. 7. We may strength away mention that the trial Judge was justified in rejecting the evidence of recovery of axe on the pointing out of the appellant; the evidence of recovery of blood-stained clothes at the pointing out of appellant, motive for the incident; and the evidence of Sukhadeo Nimase, for the reasons, assigned by him in paragraphs 16, 17, 18 and 20 of the impugned judgment. 8. The short question in this appeal is whether the evidence of two eye witnesses Chhabubai Tupe P.W. 4 and Ashok Tupe P.W. 5, inspires confidence or not? For the reasons stated hereinafter, our answer to this question is in the negative. We would first like to take up the evidence of Ashok Tupe P.W. 5, who is alleged to have received injuries resulting from an axe-blow on his forehead caused in the incident. He stated that while his father was being assaulted, he tried to intervene on in that endeavor of the appellant inflictecion axe-blow on his for head as a result of much, there was bleeding. The question is whether he really received the injury as stated by him. We have our doubts on this score. We firstly find that Sukhadeo Nimase his statement in the Trial Court, only deposed that the appellant assaulted the deceased Ganpat with an axe. He did not state that he assaulted this witness. As a matter of fact, he neither mentions presence of this witness nor that of his mother Chhabubai. Secondly, we find that Police Patil P.W. 1 Yadhav Govind Wagh who, immediately after the incident after learning about the same, from Chhabubai went the place of the incident did not depose either about the presence of Ashok Tupe or that he received injuries in the incident. Secondly, we find that Police Patil P.W. 1 Yadhav Govind Wagh who, immediately after the incident after learning about the same, from Chhabubai went the place of the incident did not depose either about the presence of Ashok Tupe or that he received injuries in the incident. Thirdly and most importantly, we find that Ashok Tupe himself in his statement in the Trial Court, did not mention that he got his injuries medically examined and neither gave any reason for not getting them medically examined. In our view, hag he really received the axe injuries, on his forehead, which resulted in blood oozing out from them, he would have got the same medically examined or offered some explanation for not getting them medically examined: In such a situation, we are inclined to accede to the submission of Mrs. Anita Aggarwal that Ashok Tupe did not receive injuries during the course of the incident and an endeavor has been made by the prosecution to plant an injured witness in this case. In this connection, we are not inclined to accept the contention of Mrs. Pingulkar, that the factum of Ashok Tupe receiving injuries is borne out by two circumstances. Firstly, the report of the Police Paw Exhibit 6 mentions it and secondly, yadi for medical examination was given to Ashok Tupe by PW 9 Police Jamadar, Ismail Patel, after he had recorded the FIR The reason for not placing reliance on the Police Patil's report is that in his statement in the Trial Court, he has not mentioned a single and about Ashok Tupe receiving injuries or his having seen him injured. In our view, Exhibit 6 is not substantive evidence and could be only used to contradict the evidence given by the Police Patil in the Court. He also feel that merely because, Police Jamadar after recording the FIR of Ashok Tupe, gave a yadi for his medical examination does not satisfactorily establish that Ashok Tupe was really injured in the manner stated by him. Had that been so, we see no earthly reason for him in not getting his injuries medically examined or at-least in offering an explanation for not getting them examined. His silence is omnibus. 9. There are some other infirmities in the evidence of both Ashok Tupe P.W. 5 and his mother Chhabubai P.W, 4 which render it unworthy of acceptance. Had that been so, we see no earthly reason for him in not getting his injuries medically examined or at-least in offering an explanation for not getting them examined. His silence is omnibus. 9. There are some other infirmities in the evidence of both Ashok Tupe P.W. 5 and his mother Chhabubai P.W, 4 which render it unworthy of acceptance. A perusal of ante-mortem injuries sustained by the deceased shows that he had received two contused lacerated wounds one each on the left forearm and left knee. Both the eye witnesses have not explained as to how the deceased received these injuries. No question in the Trial Court was put to Dr. Pavale, P.W. 6, regarding the manner in which the deceased could have received those injuries. Again, we find, that both these witnesses in their cross-examination, categorically stated that three blows with an axe were inflicted on the head of the deceased. However, the Autopsy Surgeon Dr. Pavale is candid in his opinion that three fractures (all of them were on head) must have been caused by one blow. We further find that both these witnesses were interrogated under section 161 Cr. P.C. on 12th May, 1981 i.e. after five days of the incident. The Apex Court repeatedly has extolled the importance of prompt interrogation of witnesses under section 161 Cr. P.C. Prompt interrogation during investigation largely eliminates adulterated account creeping in the statement of the eye witnesses and to a reasonable degree ensures that witnesses are not gotup witnesses. When the aforesaid infirmities in the statements of P.W. 4 Chhabubai and Ashok Tupe P.W. 5 are evaluated, in the light of the fact that they were enimical to the appellant, it would be extremely hazardous and unsafe for ns to sustain the conviction of the appellant on their testimony. Both these witnesses have stated that since the last two years, they were not on talking terms with the appellant. Chhabubai has further stated in her cross-examination (paragraph 7) that three years prior to the incident, the appellant had beaten the deceased over a dispute regarding water from the well and a complaint had been filed wherein her statement was recorded In view of this acute animosity between these witnesses and the appellant, we are not inclined to accede to Mrs. Pingulkar's contention that since these witnesses were dose relations of the appellant, they would not have falsely implicated the appellant. In the instant case, we would have been on a firmer ground had the evidence of Sukhadeo Nimase who appears to bean independent witness inspired confidence and been accepted by the Trial Court or some other independent evidence would have been adduced by the prosecution in the Trial Court. 10. Mrs. Anita Agarwal, learned counsel for the appellant vehemently urged that the very cause of the incident alleged by the prosecution namely that the deceased on the fateful day had gone to take water from the common well, does not appear to be plausible. In this connection, she invited our attention to the cross-examination of Ashok Tupe (paragraph 4) wherein he has stated that since the last two to three years, Murlidhar (appellant) was not allowing them to take water from the well. Mrs. Agarwal urged that in such a situation, it was not probable that the deceased would have gone to take water from the well. She further urged that this motive has not been relied upon by the trial Judge for the reasons given in paragraph 18 of the impugned judgment. It is well-settled that in a criminal case, resting on ocular account, the prosecution is under no obligation to furnish motive. However, it is equally well-settled that where the prosecution does allege a motive, it is necessary on its part to prove the same and failure to do so would result in the Court drawing an adverse inference against the prosecution on that score. We certainly draw that adverse inference. 11. Pursuant to the above discussion, we are squarely satisfied that the prosecution has not been able to bring home the guilt of the appellant beyond reasonable doubt and the appellant deserves the benefit of doubt. 12. It is regrettable that a broad day-light murder in which one real brother killed another is going unpunished. However, it is well-settled that Courts should not be swayed by the circumstance that murder was committed in a brutal manner. What the Courts have to ensure is as to whether the evidence adduced by the prosecution is cogent, reliable and unimpeachable. After all, a man cannot be sentenced to life imprisonment on evidence which cannot be classified in the aforesaid category. What the Courts have to ensure is as to whether the evidence adduced by the prosecution is cogent, reliable and unimpeachable. After all, a man cannot be sentenced to life imprisonment on evidence which cannot be classified in the aforesaid category. In the instant case, the evidence adduced by the prosecution does not inspire confidence. For the aforesaid reasons, this appeal is al1owed. We set aside the conviction and sentence of the appellant and acquit him by giving him benefit of doubt. The appellant is on bail. He need not surrender. His bail bonds shall stand cancelled and sureties discharged. In case he has paid the fine, the same shall be refunded to him. Before parting with this judgment, we would be failing in our duty, if we do not put on record that Mrs. S.J. Pingulkar, Additional Public Prosecutor for the Respondent-State of Maharashtra with a rare combination of tenacity, and thoroughness has argued the matter. Appeal allowed.