JUDGMENT T .K. Chandrashekhara Das, J. - These appeals arise out of a Judgment of the learned District and Sessions Judge. South Goa at Margao in Sessions Case No. 23/92, where by the accuseds were convicted under Section 302 read with 34 I.P.C. and sentenced to imprisonment for life. Accused No.1 filed Appeal No. 19/95 and accused No.2 filed Appeal No. 14/95. Accused No.1. Vassanti Gaonkar is the wife of the deceased Shri Yeshwant Raghu Gaonkar and accused No.2 is the paramour of accused-No. 1. 2. The charge against the accused was that on or about I -6- 1992 between 2 to 4 p.m. in the jungle at Vatolemol, Shivshurem Sanguem with common intention they committed murder of Shri Yeshwant Raghu Gaonkar by assaulting with a coita and stone on the face front. Nose, neck throttled and private part twisted, which resulted in instantaneous death of Yeshwant Raghu Gaonkar. Altogether 18 witnesses were examined by the prosecution. But there was no eye -witness and as a result, the Lower Court had to rely upon the circumstantial evidence adduced in this case. P.W. 1, Bombo Gaonkar is the panch witness to the inquest panchnama. Exhibit P.W. 1/ A; P. W. 2, Or. Silvano Oias, who conducted the autopsy examination on the dead body of Shri Yeshwant Gaonkar; P.W. 3, Narayan Gaonkar, another panch witness to the inquest panchnama; P.W. 4, Shivaji Gaonkar, who is the brother of the deceased has spoken about the illicit relations between accused No.1 and accused No.2 and also has spoken that on 1-6-1992, he had gone for his work in the morning and came for lunch and again went for duty and came back at 6 p.m. When he came back, his mother, Mogrem told him that Yeshwant was dead in Vatolemol. Accordingly he and the eldest son of the deceased went to Vatolemol where they could not .find the dead body of Yeshwant and they went nearby the hut where the father of the accused No.1 by name Curgoro resides. Then P.W. 4 asked him whether he saw Yeshwant. Then Curgoro took them to the dead body of Yeshwant, which was lying in bushes and there were injuries on his forehead, the neck appeared to be swollen injury on one of the hands, the private part appeared to be twisted. He then informed this incident to the Sarpanch of their Village. Then Curgoro took them to the dead body of Yeshwant, which was lying in bushes and there were injuries on his forehead, the neck appeared to be swollen injury on one of the hands, the private part appeared to be twisted. He then informed this incident to the Sarpanch of their Village. P.W. 5, Francisco Gracias is the panch witness of recovery of coita panchnama. P. W. 6, Tereza. Travasso is the panch of the attachment of the clothes of accused No. 1 and her arrest; P.W. 7. Raghav Joshiis the panch witness to the recovery of stone at the instance of accused No.2; P.W. 8, Mahindra Oessai and P.W. 9. Xavier Pinto, photograehers who took photographs of coita and stone used for offence. P.W. 10 Olimpio Cardozo is the pancha to the arrest panchnama of accused No.2; P.W. 11, Raghu Gaonkar is the, brother-in-law of deceased and brother of accused No.1. He states that on 1-6-1992, he had gone the Canacona and he returned to his sugarcane plantation by 5 p.m. Then he went to see plantation and by the side of t he planation, there is a "Karo" tree. On passing through the planation, he heard some one crying from near that 'Karo' tree. When he went to see who was crying he found that it was accused No.1. On questioning her she told him that her husband has committed suicide. At that time, he saw his father also coming towards the sugarcane plantation and asked him where accuse9No. 1 was. He told him that accused No.1 was crying near the 'Karo' tree. They then went there and his father asked accused No. 1 why she was crying, she also gave the same reply to her father and she pointed out by her hand, showing the spot where the suicide was committed. Then P.W. 11 and his father Gudgudo Gaonkar went towards the spot where they saw the dead body of the deceased and it was bleeding from his forehead. The deceased was wearing at that time only an underwear or a short pant. Both of them then went near accused No.1 and his father told her that she should go and inform about the incident to her parents-in-law. Accused No.1 then went to inform her parents-in-law. He was not cross-examined on behalf of the accused. P.W. 12 is Bhiva Gaonkar. Both of them then went near accused No.1 and his father told her that she should go and inform about the incident to her parents-in-law. Accused No.1 then went to inform her parents-in-law. He was not cross-examined on behalf of the accused. P.W. 12 is Bhiva Gaonkar. He has also spoken about the illicit relations between accused No. 1 and accused No.2. He has deposed before the Court below that the deceased was residing in the property of P. W. 12 and used to work in the rice husking mill of accused No.2, which is situated at a place called 'Hamna, less than a kilometre from the house of the deceased In the house of the deceased, besides accused No. 1, his 3 small sons were residing. The relations between the accused No.1 and the deceased were not cordial for about 3 years prior to the incident though after their marriage for about 2 years, their relations were good. Thereafter, accused No.1 went to her parents' place and started staying there and she stayed there for about 5 months. He also spoke about the frequent visits of accused No.2 to the house of the deceased in the evening time as also during the noontime. Sometimes their children used to be at home, but usually accused No.1 used to be alone at home when accused No.2 used to visit her place. Actually once, P.W. 12 had asked accused No.2 as to why he had gone to the house of accused No.1 and he told him that he had gone to take some medicines, as he was not well. P.W. 13, Raghu Gaonkar is the father of the deceased. He has spoken that the deceased married to accused No. I, ten years back. About 8 months prior to the, death of the deceased accused No.1 had started residing separately from him in the house of her father. About 4 months prior to the death of the deceased, accused No.1 had come back to the deceased and they were living together and' that was through the brother-in-law of the accused No.1. After accused No.1 came to reside with the deceased, about 4 months prior, the relations between them were strained and that was because accused No.1 was having good relations with accused No.2, who used to visit the house of the deceased. After accused No.1 came to reside with the deceased, about 4 months prior, the relations between them were strained and that was because accused No.1 was having good relations with accused No.2, who used to visit the house of the deceased. On 1-6-1992, at about 8 a.m., he had gone to Colva to have sea bath as usual arid when he returned home at 6 p.m. his wife started crying and she told him that the deceased had been killed by accused No.1 and accused No.2. She also told P.W. 13 that the killing had been done at a place called Vatolemol. He went to that spot and saw the dead body of deceased Yeshwant having only an underwear. He has stated that one Shivaji went to lodge complaint to the police. Thereafter, the police came there. 3. P.W. 14. Mogre Gaonkar is the mother of the deceased. She says that the deceased and accused No. 1 used to quarrel because of the intimacy, which accused No.1 was keeping with accused No.2 and accused No.2 used to visit her during day time. Accused No.2 used to keep the deceased in his mill and then he used to come to the house of deceased to see accused No.1, especially around 11 a.m. She has also spoken about the quarrels, which used to like place between accused No. 1 and the deceased and she used, to intervene in such a situation. Because of the quarrels, accused No.1 had left the matrimonial house and went to reside with her parents. About 1 year prior to the incident, accused No.1 had gone to her parents place and she was brought back home by the deceased. About 7 months after accused No.1 had gone to her parents place, she was brought home by the deceased and the incident occurred 4 months thereafter. She says that she was staying in the same house where the deceased and accused No.1 were staying, but in another portion of the house, divided by a common wall. She says that on a Monday, about more than 2 years back, (the day on which the incident had occurred), she had gone for grazing cattle and returned at about 5 p.m. At that time, she heard accused No.1 crying in her portion of the house. She then went to accused. She says that on a Monday, about more than 2 years back, (the day on which the incident had occurred), she had gone for grazing cattle and returned at about 5 p.m. At that time, she heard accused No.1 crying in her portion of the house. She then went to accused. No.1 and asked her two or three times as to what had happened and she told that she had killed her husband. She also deposed before the Court that accused No.1 told her that the deceased was lying at a place called Vatolemol. She then went in. Search of the deceased. On the way, she and the son of the deceased had met her other son Shivaji and all of them went to Vatolemol and started searching. However, they could not trace the deceased but they met Gudgudo father of accused No.1 and he caught hold of the son of the deceased and said that, he would show the deceased and then he took them and pointed out the dead body of the deceased. She says that P.W.13 her husband was informed about this by her when he returned from Colva at 6 p.m. She has further deposed that she informed her husband P.W. 13, that the deceased was killed by accused No.1 and accused No.2 and the reason for her conclusion was that at about 3.00 p.m. on the ill-fated day she had seen accused No.1 going towards Vatolemol She also as accused No.2 going towards Vatolemol after about 4 p.m. but from another way. She says that she was at that time grazing cattle and therefore she could not follow them. She says that accused No.1 went towards Vatolemol. The deceased had also gone after her almost simultaneously. At about 3.00 p.m. when she was In the house, she had' heard accused No.1-asking the deceased that they should go to Vatolemol. She also says that when she was going to Vatolemol accused No.1 was carrying a coita and she had identified the coita M:O. 9. P.W. 15, Indira Foundu Gaonker, who is - the neighbour of the deceased, -that deceased, husband of accused No.1 was working in the mill of accused No.2, which is 10 minutes walking distance from the house of the deceased. She says that the relations between accused No.1 and the deceased were otherwise good but sometimes they used to quarrel. P.W. 15, Indira Foundu Gaonker, who is - the neighbour of the deceased, -that deceased, husband of accused No.1 was working in the mill of accused No.2, which is 10 minutes walking distance from the house of the deceased. She says that the relations between accused No.1 and the deceased were otherwise good but sometimes they used to quarrel. She says that she does not know how were the relations between accused- No.1 and accused No.2, but she knows that accused No.2 used to visit the house of accused No.1. She used to see accused No.2 visiting the house of the accused No.1 sometimes in the evening and sometimes in the morning whenever she was at her home. The deceased was working in the mill in the morning as well as in the evening and used to get the rice husked. She also says that she know the parents of accused No.2 so also accused No.2 and she used to, go to his flour mill fer husking paddy. She had never seen Vassanti, accused No.1 in the flour- mill of accused No.2. She says that she had never seen accused Vassanti and accused Santosh talking to each other nor she had seen them together. She says that she had not seen the deceased and the accused No.1 fighting With each other. 4. P.W. 16. Anil Gaonkar is the Sarpanch of the village Panchayat. He has deposed about the information given by Shivaji Gaonkar about the dead body of the deceased lying of the forest With Injuries and was bleeding and he offered his jeep for shifting the dead body to the hospital. P.W. 17. Gopika Gaonkar claims to be neighbour of accused No. 1. but she was treated as hostile. She has deposed that she does not know anything about the relations between accused No.1 and the accused No.2. P.W. 18. Uttam Raut Dessai is the Investigating Officer. He refers to the report Exhibit P.W. 4/A. given by Yeshwant Gaonkar. P.W. 4 about the dead body, lying in the jungle at Vatolemol and he deposed about the investigation that was gone by him in the case. 5. The lower Court, as pointed out earlier, relied on the circumstantial evidence disclosed in the, oral evidence of the witnesses. He refers to the report Exhibit P.W. 4/A. given by Yeshwant Gaonkar. P.W. 4 about the dead body, lying in the jungle at Vatolemol and he deposed about the investigation that was gone by him in the case. 5. The lower Court, as pointed out earlier, relied on the circumstantial evidence disclosed in the, oral evidence of the witnesses. The lower Court has taken note of the circumstances, namely homicidal death, motive for the crime, the intimacy between the accused the deceased was last seen going in the company of the accused Vassanti to Vatolemol; accused No.1 gave false explanation of the death of her husband to her brother Raghu Gaonkar, P.W. 1, her father and mother-in-law, Mogre Gaonkar, P.W. 14: the blood of 'A' group which was of the deceased, was found' on the clothes of the accused; that the police recovered the 'coita' M.O. 9 and 'stone' M.O. 11 at the instance of the accused which were both stained with blood of 'A' group; that accused No.2 took a false plea of alibi and both the accused have offered false explanations in relation to various aspects of the case, which can be taken as additional link to prove the guilt of the accused: 6. Therefore, we have to examine whether the above circumstances are deducible from the materials available in this case and if they do exist whether one can safely reach to an irresistible conclusion that the accused alone are liable for the murder of the deceased' Yeshwant Gaonkar. 7. Shri P.P. Singh learned Advocate, appearing for accused No.1 has argued that the circumstances which have been taken into account by the Court below have not been established by the prosecution. Most of the circumstances, which have been relied upon by the lower Court are based on surmises and conjectures. He took us to the details of the deposition of relevant witnesses, particularly P.W. 4, P.W. 11 and P.W. 14. There is no doubt that the nature of the injuries' and the place where the dead body was lying and the deposition of P.W. 2. Dr. Silvano Dias would go to show that it is a case of homicide. He took us to the details of the deposition of relevant witnesses, particularly P.W. 4, P.W. 11 and P.W. 14. There is no doubt that the nature of the injuries' and the place where the dead body was lying and the deposition of P.W. 2. Dr. Silvano Dias would go to show that it is a case of homicide. According to the version of P.W. 14, she must have been the only witness who had spoken about accentuating circumstances which led to the incident, because she (P.W. 14), the mother of the deceased had seen both the deceased and accused No.1 going almost simultaneously to Vatolemol. She has also deposed that she had heard the talks between the deceased and the accused No.1 about their going to Vatolemol jungle. Reading her evidence together with the accused No. Is statement to P.W. 1, it can be concluded that accused No.1 might have seen the occurrence. But, according to accused No. 1, her husband had committed suicide. But at the same time, the nature of injuries and the post mortem report, ruled out the possibility of a case of suicide. Another circumstance which the lower Court pointed out and as mentioned earlier, is that the accused No.1 is the last person who was seen' along with the deceased and as pointed out by the lower Court, in such circumstance, stances, an explanation is not forthcoming from the accused No.1 with whom the deceased was last seen. But here there was an explanation offered by accused No.1 saying that the deceased committed suicide. Therefore, the last seen theory strongly relied upon by the lower Court, cannot be stated to be a strong circumstance to indicate the guilt of the accused No.1. Moreover, the dead body of the deceased, as stated by all the witnesses, was first seen by Gurgoro, the father of the accused No.1, whose evidence is not available for the Court, as he, was no more at the time of trial. 8. Another circumstance; relied upon by the Court below is the motive. The motive is closely related to the alleged illicit relations between the accused No.1 and accused No.2. 8. Another circumstance; relied upon by the Court below is the motive. The motive is closely related to the alleged illicit relations between the accused No.1 and accused No.2. As regards this relation between accused No.1 and accused No.2, according to the witnesses who are staying in the neighbourhood, particularly P.W. 14, P.W. IS, P.W. 16 and P.W. 17 would go to show that it is a fact that there existed relations between accused No.1 and accused No.2, but same was going on smoothly there for about 4 to 5 years, without any interruption. The deceased Yeshwant was the employee of accused No.2. It has come out in the evidence that accused No.2 was regularly visiting the accused No.1 in the house of deceased either in the morning or in the evening, while the deceased was kept in the mill. One cannot come to a conclusion that these affairs were going on without the knowledge of the deceased. Even P.W. 14, mother of the deceased was very well aware of the nature of the relation between the accused No.1 and accused No- 2. Many a time, she saw the accused No.2 visiting accused No.1 while she was alone in the house of the deceased and she had even been accused No.2 taking tea offered by accused NO.1 in her house. She did not say any thing or did not object to the visit of the accused No.2 to the house of the deceased, though it was happening in the other portion of the house". All these circumstances would go to show that without much protest or objection of the deceased, the relations of accused No.1 and accused No.2 were going on. All the people in the neighbourhood have taken for granted regarding the relationship. Therefore, the lower Court's undue reliance on the motive for the murder of the deceased is out of place because none of the witnesses had spoken that the deceased had been ever a stumble block of hurdle in keeping the relationship intact between accused No.1 and accused No.2. Even P.W. 14, mother of the deceased did not speak about such thing in her deposition. She seemed to have reconciled with that affair between" accused because it was so open and no more a secret. 9. Another important factor is the evidence of Doctor, who has completely ruled out the death by strangulation. Even P.W. 14, mother of the deceased did not speak about such thing in her deposition. She seemed to have reconciled with that affair between" accused because it was so open and no more a secret. 9. Another important factor is the evidence of Doctor, who has completely ruled out the death by strangulation. He has specifically ruled out pressing of neck by two hands by person standing in front of the deceased. The Doctor did not see any incised wound on the deceased of a coita, which has been said to be carried by accused No.1. Doctor categorically stated that the death was due to cummulative effects of damage to face and brain by wound No.1. Wound No.1 is described at 'a', 'b', 'c' and 'd' and a contused lacerated wound of 2 x 1/2 x 1/2 cms, of eye brow and another contused lacerated wound. Therefore, it can be seen that not "a, single one has been caused by a cotta. Therefore, even, if, the version of P.W. 14 that while accused No.1 was going to jungle, she was having a cotta, it does not make any headway to establish the guilt of the accused No.1. As per the evidence of P.W. 14, Mogre Gaonkar, she is the sole witness to speak about the visit of the accused and deceased to Vatolemol jungle. She is the mother of the deceased. It has' to be seen that accused No.1 is a persona non-grata to P.W. 14. She is the only witness, who saw accused No.1 going with the deceased to Vatolemol jungle with a coita and she is the only witness who spoke about accused No.2 following them after about one hour. Her evidence has to be examined more in detail and more carefully. She speaks about the quarrel between accused No.1 with the deceased about her illicit relationship with the accused No.2. She speaks that in May.1991 the deceased had badly beaten accused No.1 and he was speaking about infidelity of his wife. Since then she was staying with her parents. But after about 8 months, it was settled amicably and deceased Yeshwant brought back his wife and started living together from December, 1991 and since then there was no quarrel between them. Since then she was staying with her parents. But after about 8 months, it was settled amicably and deceased Yeshwant brought back his wife and started living together from December, 1991 and since then there was no quarrel between them. She says that on 1-6-1991, at about 5 p.m. when she came back from grazing cattle, she saw accused No.1 crying and when she inquired, accused -No.1 told her that Yeshwant died him- self by hitting his forehead on a stone. Immediately she went to Vatolemol along with the son of deceased. They could not trace the deceased. They met Gudgudo, father of accused No.1 and she met her son Shivaji and father of the accused No.1 caught hold of son of the deceased and told them that he would show where Yeshwant was. That is how. P.W. 14l1arrates the story as to house came to know about the incident. She has improved her case. She says that on the same day at 3 p.m. she had seen accused No.1 going with the deceased to Vatolemol and accused "No.1 was carrying a coita. She also says that she saw accused No.2 also going towards Vatolemol at about 4 p.m. from another way. She had also heard accused No.1 saying that they should go to Vatolemol. She - says that about a month prior to this incident, her husband P.W. 13 had' told accused No.2 that he should not visit the house of the deceased and then accused No.2 remained silent. But inspite of the warning, he continued to visit the house of the deceased. However, this has not been stated to the police in her statement. She also admits that while she was grazing the cattle, there were some children as shepherds, amongst them one was Shaila, daughter of one Amrutem. She was not examined. Therefore, the only evidence of P.W. 14 that accused No: 1 and the deceased were going together to Vatolemol and There after, accused No.2 followed them after about an hour and the accused No. 1 carrying a cotta, is to be considered as the circumstantial evidence. All these circumstances were spoken only by P.W. 14. Excluding her evidence, there is no evidence to connect the accused with the offence. As we pointed out earlier, P.W. 14's evidence has to be examined very carefully, as she is none other than the mother-in-law of the accused No.1. All these circumstances were spoken only by P.W. 14. Excluding her evidence, there is no evidence to connect the accused with the offence. As we pointed out earlier, P.W. 14's evidence has to be examined very carefully, as she is none other than the mother-in-law of the accused No.1. The version of P.W. 14 is, most unbelievable. She says that she had heard accused No, 1 asking the deceased to go to Vatolemol on that particular day and she also saw a coita in her hand. We cannot, for a moment, understand how and under what circumstances, accused No.1 had asked the deceased to go to Vatolemol and why the deceased did not question carrying of coita by accused No.1 in her hand. Her evidence says that the coita carried by the accused No.1 was not hidden about. P.W. 14 evidence is thus full of contradictions and conjectures. Another important factor is the lying of dead body in the jungle in an open place for so many hours. In this connection, we observe serious defects committed during the investigation. There are doubts, which cannot be answered convincingly by the prosecution about the manner in which the disclosure was made by the accused in respect of the recovery of coita. The recovery of stone is quite artificial and cannot be believed. It is stated that it was recovered from an open place where similar types of stones were kept. It has also come out in the evidence that there was drizzling and no blood- stain was visible on the stone. These circumstances point out a defective investigation in this case, If the investigation was proper some light could have been thrown on the cause of the death and the circumstances would have been much more strong and unchallengeable in establishing the guilt of the accused. Even the nail marks found on the deceased could not be explained by the prosecution and the dead body was throughout in the open space while it was raining. It is doubtful whether the nail marks were inflicted by humans or' animals. The stone which is said to have been used was only very small and handful. If the investigation was proper or faultless at least the weakness pointed out by us would have been eliminated. If the accused are acquitted in this case it is only for insufficiency of preponderance of evidence and circumstances. 10. The stone which is said to have been used was only very small and handful. If the investigation was proper or faultless at least the weakness pointed out by us would have been eliminated. If the accused are acquitted in this case it is only for insufficiency of preponderance of evidence and circumstances. 10. Another circumstance, which the lower Court pointed out is the blood stains on the clothes of the accused No. 1. In the manner in which the accused No.1 has narrated the incident, nothing could be made out from this. She said that her husband killed himself by hitting his forehead on the stone. Naturally there must have been some resistance from her and in that context the clothes having the blood stains of the deceased will not help to indicate the guilt of the accused No.1. In these circumstances, we do not find any strong evidence or circumstances to make out a case against accused No.1. 11. Mr. Lotlikar appearing for accused No.2 submitted that there is no evidence to connect accused No. 2 with the offence, except the version of P.W. 14. who says that she saw accused No: /2 going after one hour of going of accused No.1 and the deceased to Vatolemol. As we pointed out earlier, unless motive is strongly established there is no connecting link to connect the accused No.2 with the offence his order to establish the common intention, the circumstantial evidence is not sufficient. When an offence is sought to be proved only on circumstantial evidence, the allegations of common intention under Section 34 I.P.C. normally cannot be established in absence of meeting of mind the overt act of the accused by their conduct, by using of the weapons, by their utterance of words. In absence of such important facts, common intention under Section 34 I.P.C. cannot be inferred. As we pointed out earlier, except the statement of P.W. 14, that she had seen accused No.2 going to Vatolemol jungle after about one hour accused No. 1 and the deceased left for Vatolemol jungle there is absolutely no evidence to connect the accused No.2 with the offence. Only alibi set up by accused No.2 has not been proved and will not absolve the liability of prosecution to establish the guilt of the accused No.2. Only alibi set up by accused No.2 has not been proved and will not absolve the liability of prosecution to establish the guilt of the accused No.2. In these circumstances, finding of t he lower Court that the circumstances proved in the case have established the guilt of the accused. cannot be accepted. The circumstantial evidence is not so strong so as to connect the accused No.2 with the offence. 12. In the result the appeals are allowed. The conviction and the sentence awarded by the lower Court against both the appellants by impugned Judgment dated 31st March. 1995, in Sessions Case No. 23/92, are set aside. Both the appellants are acquitted. The appellants are set free forthwith, unless they are required in any other case. Appeals allowed.