JUDGMENT Vishnu Sabai. J. - The appellant aggrieved by the judgment and order dated 9th June. 1983 passed by the Extra Additional Sessions Judge. Satara in Sessions Case No. 69 of 1982, convicting and sentencing him to undergo imprisonment for life under section 302 IPC has come up in appeal before us. 2. Briefly stated the prosecution case runs as under: The deceased Babai was the sister of the informant Kishan Bacharam Jadhav PW-11 and the wife of the appellant. The evidence is that she was married to the appellant about 20 years prior to the incident. They had six children. It appears that the appellant used to ill-treat the deceased and as a consequence of it two years prior to the occurrence the latter came to stay at the place of her mother Sakhubai Jadhav PW-3. About a year before the incident both of them again started living together. It is said that the appellant had taken a subcontract in connection with the construction of a bund in the field of Jagu Satra at Khatav Dara. Along with him the deceased Babai. Ananda Jadhav PW-8 the brother of the deceased and some other labourers used to work. One Haridas son of Shripati the elder brother of the appellant was to be married on 22-3-1982 at Daruj. Shripati had personally come to invite the appellant and the deceased. Consequently both of them had decided to go to Daruj to attend the wedding. Accordingly a day prior to the marriage i.e. on 21-3-1982 the appellant paid wages to Ananda Jadhav and other labourers and told them that they should report for work on 24-3-1982 as he was going with Babai to attend the said marriage. The appellant had told them that from the marriage they would directly return to Khatavdara. He had also told them that on the morning of 22-3-1982 he and Babai would work at Khatavdara and thereafter proceed for the marriage. From the evidence it appears that on the morning of 22-3-1982 the appellant and the deceased went to work at Khatavdara and at about 2.30 to 3 p.m. the same day the appellant killed the deceased there. From the evidence it appears that on the morning of 22-3-1982 the appellant and the deceased went to work at Khatavdara and at about 2.30 to 3 p.m. the same day the appellant killed the deceased there. It is alleged by the prosecution that at about 2.30 - 3.00 p.m. on 22-3-1982 Lala Shankar Madane PW -9 who was grazing the goats at Khatav Dara and Vithai Eknath Kharade PW-10 a cook by profession who was returning after cooking at a party and was on the way to his house situated in Malwan saw a quarrel going on between the appellant and the deceased. Their evidence is that as they often used to quarrel they did not pay any heed to it. They also saw a scuffle between the appellant and the deceased. There after there is a divergence in the evidence of both these witnesses; whereas Lala says that the appellant assaulted the deceased from the blunt side of the spade on her head and thereafter hurled a stone on her chest, Vithal Kharade PW -10 says that he had seen the deceased fallen on the ground and had noticed a spade in the hands of the appellant who was going at fast speed towards Nidhal. From the evidence it appears that the deceased succumbed to the injuries on the spot. After seeing the assault on the deceased the said two witnesses ran away. 2A. When the deceased did not return on 24-3- 1982 the informant Kishan Jadhav who was her brother, naturally got worried. It is said that the same day his brother Ananda PW-8 came and informed him that the corpse of Babai was lying in Khatav Dara. On receiving this information the informant along with police Patil proceeded to police station Dahiwadi and there lodged his FIR at 3.15 p.m. on the same day (24-3-1982). The FIR is at Exhibit 32 and on its basis PSI Anna Mane PW-13 registered C.R. No. 26 of 1982. In the FIR it is alleged that the appellant must have committed the murder of the deceased. 3. The investigation of the case was conducted by PSI Anna Mane. Mater registering the offence he proceeded to the place of the incident and drew the inquest panchanama Exhibit 9. In the FIR it is alleged that the appellant must have committed the murder of the deceased. 3. The investigation of the case was conducted by PSI Anna Mane. Mater registering the offence he proceeded to the place of the incident and drew the inquest panchanama Exhibit 9. On 253-1982 he drew the panchanama of the scene of offence and recovered there from some articles including a spade and a stone weighing 8 to 10 Kgs. In discourse he interrogated witnesses under section 161 Cr. P.C. On 3-4-1982 the appellant was arrested. During investigation he also sent the recovered articles to the Chemical Analyst. Finally, after completing the investigation he submitted the charge -sheet on 5-7-1982. 4. Going backwards the post mortem examination of the dead body of the deceased Babai was conducted by Dr. Saraschandra Potdar PW-6 on 25-3 1982 between 11 a.m. to 1.30 p.m. On the corpse the doctor found the following two ante mortem injuries: 1. C.L.W. of the size 2" x 1/2" x 2-1/2", I" behind the right ear triangular; and 2. Abrasion of the size 2" x 1-1/2" over the chest, blackish in colour, at the upper part of the sternum. On internal examination he found fracture of the skull bones I" behind the ear. In the opinion of Dr. Potdar injury No. 1 was attributable to the blunt side of a spade and injury No.2 to a hard and rough object. He also opined that the deceased died on account of fracture of skull and injury no. I coupled with the internal injuries was sufficient in the ordinary course of nature to instantaneously cause her death. 5. The case was committed to the court of sessions in the usual manner. In the trial court the appellant was charged under section 302 IPC. To the said charge he pleaded not guilty and claimed to be tried. During trial in all the prosecution examined as many as 13 witnesses. They included two eye -witnesses viz. Lala Shankar Madane PW -9 and Vithal Eknath Kharade PW-IO. In defence the appellant examined Shripati Kondiba Chavan DW-1, whose evidence is that on Monday, (22-3-1982) at about 12 noon the appellant had come to Dharuj to attend the wedding of his son Haridas and stayed till the next morning. They included two eye -witnesses viz. Lala Shankar Madane PW -9 and Vithal Eknath Kharade PW-IO. In defence the appellant examined Shripati Kondiba Chavan DW-1, whose evidence is that on Monday, (22-3-1982) at about 12 noon the appellant had come to Dharuj to attend the wedding of his son Haridas and stayed till the next morning. The learned trial Judge after considering the evidence on record and hearing submissions of learned counsel for the parties believed the evidence adduced by the prosecution. Rejected that of DW-1 Shripati Chavan and passed the impugned judgment. Hence this appeal 6. We have heard Mr. H.D. Gole for the appellant and Mrs. Jyoti S. Pawar A.P.P. for the State of Maharashtra at considerable length. We have also perused the material exhibits tendered by the prosecution; the evidence of the prosecution witnesses the statement of the appellant recorded under section 313 Cr. P.C. the statement of the defence witness Shripati Chavan: and the impugned judgment. After giving our anxious consideration to the matter we are squarely satisfied that this appeal deserves to be allowed. 7. We now propose giving our reasons for reaching the said conclusion. 8. The short question in this appeal is whether the evidence of the two eye witnesses viz. Lala Shankar Madane PW-9 and Vithal Eknath Kharade PW-I0 inspires confidence or not? For the reasons stated hereinafter our answer to the said question is in the negative. 9. We would first like to take up the evidence of Lala Shankar Madane PW-9. This witness is a close relation of the deceased. In para 5 he admitted that Sakhubai Jadhav PW-3 is the sister of his father. Hence the deceased was his first cousin. We are alive to the fact that on account of the said circumstances we cannot mechanically reject the evidence of this witness but have to only scrutinise it with caution. In paragraph 2 we have already made a reference to the evidence of this witness while describing the manner of assault an the deceased. To repeat this witness stated that at the time of the incident he was grazing his goats on the place of the incident and when he had sat down to have his lunch beneath a tree he saw the appellant first assaulting Babai (the deceased) with the blunt side of a spade and thereafter hurling a stone on her chest. To repeat this witness stated that at the time of the incident he was grazing his goats on the place of the incident and when he had sat down to have his lunch beneath a tree he saw the appellant first assaulting Babai (the deceased) with the blunt side of a spade and thereafter hurling a stone on her chest. From his evidence it appears that the deceased instantaneously succumbed to her injuries. 10. We have our strong reservations on the claim of this witness of having seen the incident. Firstly we find the conduct of this witness to be extremely unnatural. As seen above Sakhubai Jadhav PW-3 was the real aunt of this witness and the deceased his first cousin. Strangely enough, we find that after the appellant had run away after assaulting the deceased this witness neither went near the corpse of the deceased nor informed Sakhubai that he had seen the incident. In our judgment such a conduct of this witness alone is sufficient to disbelieve his claim of having seen the incident. The normal conduct of a person placed in his situation would have been to at least have in formed Sakhubai. Not only this we find that till 26-3-1982 the date on which he was interrogated by the investigating officer he did not disclose the incident to any person. In his cross- examination, in paragraph 5, he stated "Until my statement was recorded by police on 26-31982. I did not disclose the witnessing of the incident to anybody". In our judgment both the conduct of this witness in not disclosing the incident to anyone and the inordinate delay in recording of his statement under section 161 Cr. P.C. are pointers to the fact that he had not seen the incident. 11. The Apex Court in a number of cases has concluded that the conduct of a witness in not disclosing the incident to persons whom he must have met after the incident is indicative of the fact that he had not seen the incident. In this connection we would like to refer to the decision of the Apex Court reported in Shivaji Dayanu Patil v. State of Maharashtra1 wherein the wife who had seen the murder of her husband did not disclose the incident for two days to anyone and on this score the Apex Court did not believe her evidence. In this connection we would like to refer to the decision of the Apex Court reported in Shivaji Dayanu Patil v. State of Maharashtra1 wherein the wife who had seen the murder of her husband did not disclose the incident for two days to anyone and on this score the Apex Court did not believe her evidence. In para 11 of the said judgment it has been observed thus: "A wife who has seen an assailant giving fatal blows with a stick to her husband would name the assailant to all present and to the police at an earliest opportunity." 12. We would also like to emphasise that the Supreme Court held that the circumstance of inordinate delay in recording the statement of an eye witness under section 161 Cr. P.C. is a pointer to the fact that he has not seen the incident. It is a trite that the investigating officer in a murder case immediately after the FIR has been registered seeks to discover as to who are the persons who have seen the incident and thereafter embarks upon the job of interrogating them under section 161 Cr. P.C. The proposition is far too well settled to require elucidation from authorities but in case one is required reference may be made to the observations contained in paragraph 15 of the decision of the Apex Court reported in G.B. Patil v. State of Maharashtra2. As stated above Lala Shankar Madane PW9 was interrogated on 26-3-1982, Le after five days from the date of the incident. In our view this delay in his interrogation has occasioned possibly because the investigating officer P.S.I. Mane was trying to discover as to who were the persons who could be made as eye- witnesses in this case. He then settled for Lala Shankar Madane presumably because he could not muster the courage to refuse to become a witness we say this because Sakhubai PW-3 the mother of the deceased stated in her cross examination (para 5) that Lala Shankar Madane PW -9 had been convicted in a prohibition case for manufacturing illicit liquor and used to manufacture and sell illicit liquor for the purposes of his livelihood. Since Lala Shankar Madane was a person of shady antecedents in all probability had no option but to surrender to the dictates of the investigating officer to become a witness in the instant case. 13. Since Lala Shankar Madane was a person of shady antecedents in all probability had no option but to surrender to the dictates of the investigating officer to become a witness in the instant case. 13. Apart from the said reasons there are two other reasons as to why we are not inclined to accept the evidence of Lala Shankar Madane. The first is that the version of the incident given by him is at variance with that furnished by Vi that Eknath Kharade PW-l0.The evidence of Lala Shankar Madane PW -9 is that when he was about to take his meals he saw first an altercation between the appellant and the deceased and then the appellant assaulted the deceased with the blunt side of a spade and thereafter hurled a stone on her chest. On the other hand the evidence of Vithal Eknath Kharade is that he saw the deceased lying on the ground and appellant with a spade going towards Nidhal. The other reason is that Vithal Eknath Kharade in his cross examination admitted that in his statement under section 161 Cr. P.C. he had not disclosed about the presence of Lala Shankar Madane on the place of the incident. 14. In our view for the reasons, mentioned above it would not be safe to accept the testimony of Lala Shankar Madane PW-9. 15. We now take up the evidence of Vithal Eknath Kharade PW-I0. He stated that while he was returning for his home in Malwan after cooking at a party he happened to pass by the place of the incident and there saw Babai (the deceased) lying on the ground and the appellant with a spade going towards Nidhal. Apart from the contradiction between his statement and that of Lala Shankar Madane referred to in paragraphs2 and 13, we find that there are some other strong reasons for entertaining grave doubts on his claim of having seen the incident. In his cross- examination, in para 5, he stated that even though he had seen the incident he had not disclosed the same to any body till 26-3-1982 the date on which his statement under section 161 Cr. P.C. was recorded. As mentioned above the conduct of an eye -witness in not disclosing the incident to anybody for full five days, is a highly unnatural one and is alone sufficient to reject his testimony. P.C. was recorded. As mentioned above the conduct of an eye -witness in not disclosing the incident to anybody for full five days, is a highly unnatural one and is alone sufficient to reject his testimony. Again the circumstance that he was interrogated under section 161 Cr. P.C. after five days is also sufficient to infer that he had not seen the incident and the investigating officer was probably searching for a convenient witness and presumably having belatedly found one in him interrogated him on 26-3-1982. In this connection it would be necessary to point out that in the cross examination he admitted that he runs a restaurant and for the same he had obtained a licence from the Mamlatdar and the said licence is required to be renewed every year. The suggestion given to this witness was that for the renewal of the licence a police report was required. It is true that this witness denied the suggestion. However, common experience is that in such matters police report is called for. At any rate it is far too well known that no one can afford to run a restaurant and that too in a small town, without keeping the police on his right side. In such a situation we feel that presumably this witness had no option but to become a witness in this case. We further find that he is a chance witness and just at the nick of the time happened to reach the place of the incident. It is true that by itself the evidence of a chance witness may not necessarily be false but as has often been said it is unsafe to be relied upon. In our view when the circumstance of his being a chance witness is considered in the light of the infirmities mentioned above it becomes extremely unsafe to accept his- testimony. 16. We may also mention that the appellant had pleaded that on the date and time of the incident he was in Daruj in connection with the marriage of Haridas, the Son of his brother Shripati Chavan. To substantiate this Shripati Chavan was examined as DW-1. 16. We may also mention that the appellant had pleaded that on the date and time of the incident he was in Daruj in connection with the marriage of Haridas, the Son of his brother Shripati Chavan. To substantiate this Shripati Chavan was examined as DW-1. His evidence is that on 22-3-1982 (the date of the incident) the appellant came to Daruj at 10 a.m. to attend the wedding of his son which took place at about 12 O'clock in the noon the same day and thereafter stayed in Daruj and only the next morning left Daruj. We have examined the statement of Shripati Chavan and in our view the same inspires confidence. Nothing could be elicited from his cross- examination, which would destroy the core of his credibility. In our view his evidence is certainly more reliable than that of the two eye- witnesses. In our view the learned trial Judge erred in rejecting his testimony and in not giving the appellant the benefit of his plea that on the date and time of the incident he was not present on the place of the incident and instead in believing the evidence of the said two eye witnesses Lala Shankar Madane PW-9 and Vithal Eknath Kharade PW -10 which for the reasons mentioned earlier does not inspire confidence. Courts would do well to remember that the same yardstick should be applied to evaluate the testimony of a defence witness as that of prosecution witnesses. The trial Judge ignored this norm while examining evidence in this case. 17. Mrs. Jyoti S. Pawar, learned A.P.P. with her customary tenacity urged that the evidence of both these eye -witnesses inspired confidence. She urged that the conduct of a person in not disclosing an incident to anyone after seeing the same would differ from person to person. In her contention while there are some persons who compulsively cannot hold on to anything which they came to know of there are others who are of a quieter disposition and do not like to disclose what they have seen to others. She further urged that it might be that the two eye-wit nesses belonged to the latter category and therefore if they did not disclose the incident to anyone till they were interrogated under section 161 Cr. P.C. no capital can be made of this conduct of theirs. She further urged that it might be that the two eye-wit nesses belonged to the latter category and therefore if they did not disclose the incident to anyone till they were interrogated under section 161 Cr. P.C. no capital can be made of this conduct of theirs. There can be no doubt that there are persons of the disposition suggested by Mrs. Pawar, but the golden rule in criminal cases is to go by the, normal human conduct and not by remotely possible human conduct. The normal human conduct in our judgment would be disclosure of the incident by a witness to persons whom he meets soon after seeing the same. Hence we reject the said contention of Mrs. Pawar. 18. Mrs. Pawar also urged that both Lala Shankar Madane PW-9 and Vithal Eknath Kharade PW-10 are independent witnesses and had no axe to grind against the appellant. In her contention in the absence of any plau-sible reason on their part to falsely implicate the appellant we should accept their evidence. The answer to Mrs. Pawar's contention was given by Y.V. Chandrachud, C.J. in the oft-quoted case of Shankerlal Gyarasilal Dixit v. State of Maharashtra3. In paragraph 33 of the said decision he observed thus: 33. Our judgment will raise a legitimate query: If the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely? The answer to such question is not always easy to, give in criminal cases" 19. Mrs. Pawar also urged that apart from the ocular account there is clinching circumstantial evidence in the instant case, viz. (i) there was an enimical strain between the -appellant and the deceased on account of which the former had a motive to kill the latter; (ii) PW-5 Anusaya Ramchandra Ingale on the morning of 22-3-1982 at about 8 or 9 a.m. Saw the appellant and the deceased together going towards the place of the incident; and (iii) the appellant absconded and was only apprehended on 3rd April, 1982 i.e. nearly 10 days after the incident. He considered the aforesaid circum stantial evidence pointed out by Mrs. Pawar. So far as the motive is concerned to us it appears from the evidence that at the time of the incident the relations between the appellant and the deceased were cordial. He considered the aforesaid circum stantial evidence pointed out by Mrs. Pawar. So far as the motive is concerned to us it appears from the evidence that at the time of the incident the relations between the appellant and the deceased were cordial. In our view, that is the reason as to why the two of them were staying together since a year prior to the incident. 21. In connection With the motive we would also like to refer to the impugned judgment. From a perusal of paragraphs 18 and 19 of the said judgment it appears that the learned trial Judge himself was not satisfied about the motive and he felt that on the spur of the moment something must have happened between the appellant and the deceased which made the former fatally assault the latter. Hence this circumstance does not go against the appellant. 22. Coming to the circumstance of last seen we find that it has been deposed to by PW-5Anusaya Ramchandra - Ingale. She stated that on the date of the incident at about 8 or 9 a.m. she'" had seen the appellant and the deceased going towards Khatav Dara. Even if her statement is accepted on its face value then there is a time gap of 6 to 7 hours between her last seeing the appellant and the deceased together and the time of the murder of the deceased. In our view this circumstance of last seen may only create a strong suspicion against the appellant or may lead us at the worst to infer that the prosecution case may be true. However, to borrow the words of Gajendragadkar, J., as he then was, mere suspicions, howsoever strong, cannot take the place of proof. See Sarwan Singh Ratan Singh v. State of Pwyab4 (paragraph 9). In paragraph 11 of the said decision the Apex Court observed thus: but between 'may be true' and must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence. Thus the circumstance of last seen would have certainly assumed significance had we placed reliance on the ocular account but that in our view is wholly untrustworthy and unreliable. Even the learned trial Judge in paragraph 35 of the impugned judgment has taken the same view. 23. Thus the circumstance of last seen would have certainly assumed significance had we placed reliance on the ocular account but that in our view is wholly untrustworthy and unreliable. Even the learned trial Judge in paragraph 35 of the impugned judgment has taken the same view. 23. Coming to the circumstance of the appellant absconding after the incident we find that the legal position is that this circumstance assumes weightage if there is other cogent reliable evidence to prove the prosecution case. In the instant case that is not there. We may also point out that if a person makes himself scarce for a period of 10 days he can hardly be said to be absconding. In fact it is not even 10 days because the FIR was lodged on 243-1982 and the appellant was apprehended on 3-4-1982 and thus it would only be 8 days. It may be that the appellant may not be having any knowledge that an F.I.R. was lodged against him. We would also like to emphasise that the circumstance of absconscion assumes significance when there is evidence to the effect that processes under sections 82 and 83 Cr. P.C. have been issued. Here there is no such evidence. 24. We even go to the extent of observing that if the said circumstances are held by us as having been established they do not prove the participation of the appellant in the instant crime. In this connection we would like to reiterate the time honoured law on circumstantial evidence viz. (a) The circumstance should be firmly established; (b) The circumstance should wholly and only lead to the inference of guilt of the accused: (c) The circumstance should be wholly inconsistent with the inference of innocence of the accused: and (d) They should be wholly incompatible of being explained on any other reasonable hypothesis other than the guilt of the accused. Applying the said legal yardstick we have no hesitation in holding that these circumstances do not irresistibly and conclusively lead to the conclusion that it was only the appellant who had murdered the deceased. The said circumstances would certainly have assumed significance had we accepted the ocular account. The same in our judgment for the reasons stated above is impossible of acceptance. Consequently this submission of Mrs. Pawar also fails. 25. The said circumstances would certainly have assumed significance had we accepted the ocular account. The same in our judgment for the reasons stated above is impossible of acceptance. Consequently this submission of Mrs. Pawar also fails. 25. Pursuant to the above discussion we are squarely satisfied that the prosecution has failed to bring home the guilt of the appellant beyond reasonable doubt and the appellant deserves to be acquitted. 26. In the result this appeal is allowed. The conviction and sentence of the appellant under Section 302 I.P.C. recorded vide the impugned judgment is set aside. He is acquitted of the said offence. The appellant is on bail. He need not surrender. His bail bond stands cancelled and sureties discharged. Before parting with this judgment we would be failing in our fairness if we do not put on record that in spite of the fact that it was a very difficult judgment to defend. Mrs. Pawar left no stone unturned and till the very end made an endeavourer to persuade us to accept that the impugned judgment requires to be affirmed by us. We would also like to record our appreciation for the assistance rendered to us by Mr. H.D. Gole learned counsel for the appellant. In case an application for certified copy of this judgment is made the same shall be issued expeditiously. Appeal allowed. 1. AIR 1989 SC 1762 . 2. AIR 1979 SC 135 3. AIR 1981 SC 765 . 4. AIR 1957 SC 637 .