JUDGMENT - T.K. CHANDRASHEKHARA DAS, J.:---By judgment and order dated 19-2-1994 of the Additional Sessions Judge for Greater Bombay in Sessions Case No. 878 of 1991 the appellant accused was convicted for an offence punishable under section 302 I.P.C. and sentenced to suffer imprisonment for life. In this appeal the appellant challenges the aforesaid order of conviction and sentence. 2.The charge against the appellant was that on 7th July 1991 at about 1.30 a.m. in front of Mastan Chawl, Church Pakhadi Road No. 1, Sahar Village, Bombay 400 099, he assaulted Pandi Devar on his head with hockey stick and as a result of the head injury so voluntarily caused by the appellant, he intentionally or knowingly caused the death of Pandi Devar and thereby committed an offence of murder punishable under section 302 I.P.C. 3.The prosecution case can be stated briefly as under : On Church Pakhadi road No. 1, Sahar Village, Bombay there were two chawls facing each other within a distance of about 6 to 7 ft. P.W. 1 complainant Sadashiv Tanu Bagade was staying in one of the chawls in room No. 1-1/1 with his family. In the opposite room one Mohd. Nasiruddin Ahmed Nasiruddin Maulana Shaikh, P.W. 2, an Arabic teacher by profession was staying. On 7-7-91 at about 1.30 a.m. P.W. 2 Shaikh heard cries outside his room. He woke up, switched on his light and saw a person crying and lying on the door steps of Bagade and the other standing there with a hockey stick in his hand. P.W. 2 Shaikh immediately shouted and called Bagade P.W. 1. Bagade got up, switched on the light and he also found that a person lying near his door step and another standing there with a hockey stick in his hand. Both Maulana Shaikh and Bagade saw the man with hockey stick giving a blow on the head of the person lying on the ground and then running away. Both of them then decided to report the matter to the police and came to the main road and hired an autorickshaw. Since Maulana felt giddiness he returned to his room and Bagade alone went to Sahar Airport Police Station and reported the matter. Both of them then decided to report the matter to the police and came to the main road and hired an autorickshaw. Since Maulana felt giddiness he returned to his room and Bagade alone went to Sahar Airport Police Station and reported the matter. Police Sub Inspector Raut who was on station house duty rushed to the site along with his staff and Bagade and removed and admitted the injured in Cooper Hospital on 7-7-91 at 2.25 a.m. The injured was in an unconscious condition. He had a head injury and was gasping and aspirating. P.S.I. Raut then recorded the statement of Bagade in Cooper Hospital and the same was treated as F.I.R., and registered C.R. No. 540 of 91 under section 307 I.P.C. Thereafter sopt panchanama was drawn, and samples of blood from the ground were collected. A piece of blood socked cloth lying on the ground was also seized under panchanama. Thereafter statements of various witnesses were recorded. The accused was arrested at about 9 a.m. on 7-7-91. At about 11.20 in the night appellant accused made a voluntary disclosure and led the police party and the panchas to his room. The mother of the accused was residing there. From below the mattress on the cot, accused took out a white coloured shirt and a black coloured pant. He also took out the hockey stick from beneath the cot. All the three articles which were thus produced were seized under panchanama on the spot in continuation of the earlier disclosure statements. By that time the injured succumbed to the injuries and the offence was converted into one under section 302 I.P.C. The clothes on the body of the deceased and a leather wallet found with the deceased were collected and seized. On completion of the investigation chargesheet was filed in the Court of the Metropolitan Magistrate, 22nd Court Andheri and the case was committed to the Court of Sessions, Greater Bombay on 30-9-91. 4.During the trial the accused denied the charges. In all 8 witnesses were examined during trial. P.W. 1 Sadashiv Tanu Bagade and P.W. 2 Mohd. Naziruddin Maulana Shaikh are supposed to be the eye-witnesses of the offence. P.W. 3 Vijay Janbaji Kavale is a panch witness for the voluntary disclosure and seizure of the clothes and hockey stick. P.W. 4 is Dr. Jagruti Gopalji Waghela who treated the victim in the Cooper Hospital. P.W. 1 Sadashiv Tanu Bagade and P.W. 2 Mohd. Naziruddin Maulana Shaikh are supposed to be the eye-witnesses of the offence. P.W. 3 Vijay Janbaji Kavale is a panch witness for the voluntary disclosure and seizure of the clothes and hockey stick. P.W. 4 is Dr. Jagruti Gopalji Waghela who treated the victim in the Cooper Hospital. P.W. 5 Dr. Rajaram N. Marathe conducted autopsy on the corpse of the deceased. P.W. 6 Arvind Y. Mahadik, the Senior Police Inspector attached to Crime Branch who has spoken about the investigation done by P.S.I. Raut. He deposed that he knew the signature of P.S.I. Raut. P.W. 7 Pravin K. Mahadik is a panch of the panchanama of the scene of offence. P.W. 8 Shankar Mahadeo Patil is the Head Constable who collected the clothes of the deceased from the hospital and produced the same before the Investigating Officer. 5.It is to be noted that the Investigating Officer P.S.I. Raut has not been examined in this case. As we indicated earlier the two eye witnesses P.Ws. 1 and 2 were believed by the Court below and the appellant was convicted mainly on their evidence. Therefore close scrutiny of their evidence has become essential for the purpose of this case. 6.Mrs. A.R. Kamath Counsel for the accused strongly contended that the lower Court ought not to have relied upon the evidence of P.W. 1 and P.W. 2. She submits that there are serious contradictions in their statements in material aspects of the case. It was P.W. 2 who first heard the noise and called P.W. 1. He stated that he saw a person lying on the ground and the other beating him with a hockey stick. He then shouted and woke up P.W. 1. He saw then the man having stick in his hand giving a blow on the head on the person lying on the ground and running away. This ocular statement of the P.W. 2 Maulana Shaikh, according to the Counsel for the appellant cannot be relied upon at all. The very narration of the incident by him creates suspicion. According to her, it appears that the accused was waiting for P.W. 2 to see the incident and to give the deceased the second blow and run away. One cannot in the ordinary conduct of human behaviour believe this statement of narration made by P.W. 2. The very narration of the incident by him creates suspicion. According to her, it appears that the accused was waiting for P.W. 2 to see the incident and to give the deceased the second blow and run away. One cannot in the ordinary conduct of human behaviour believe this statement of narration made by P.W. 2. Admittedly he did not identify the accused. Therefore, the learned Counsel for the appellant submits that P.W. 2 cannot be relied upon for having witnessed the commission of the offence. She also submitted that P.W. 1 who came out on hearing the sound of P.W. 2 also stated that when he came out he found a person lying near the door of his room and he saw that the said person was bleeding. He also saw the accused standing near by with a stick in his hand. He also saw the accused giving a blow after that. This narration of P.W. 2 also cannot be believed for the same reason which she had stated above. It appears that both the witnesses saw the accused waiting for the witness to come out and giving a second blow. We find substance in the contentions of the learned Counsel for the appellant. The very narration of the incident by these witnesses creates doubt in the mind as to whether they have really seen the incident. 7.The learned Counsel for the appellant further submits that in the absence of proper identification of the accused the prosecution cannot succeed in establishing the guilt of the accused. She strongly refutes the claim made by P.W. 1 that he had identified the accused. Miss Kamath brought our attention to the evidence that there is no municipal street light and that the scene of offence had light only that came out of the windows of the rooms and therefore in that light the accused could not have been properly identified unless the accused was previously known to the witnesses. The learned APP Mr. Nallawade has strongly opposed this contention of Miss Kamath. He submitted that P.W. 2 Maulana Shaikh knew both the injured and the accused about 4 to 5 months of the incident. He submits that P.W. 2 pointed out the accused in the Court, as the person who hit the deceased with the hockey stick. The learned APP Mr. Nallawade has strongly opposed this contention of Miss Kamath. He submitted that P.W. 2 Maulana Shaikh knew both the injured and the accused about 4 to 5 months of the incident. He submits that P.W. 2 pointed out the accused in the Court, as the person who hit the deceased with the hockey stick. In view of this the learned APP submitted that P.W. 2 has properly identified the accused and there was absolutely no necessity in conducting the identification parade. We find it very difficult to accept the contention of learned APP. First of all P.W. 1 did not mention the name of the accused in the F.I.R. He did not even mention in his evidence how he became familiar with the face of the accused. P.W. 1 only identified him in Court. Therefore claim made by P.W. 1 that he knew the accused before the incident cannot be accepted and without conducting an identification parade, the identification of the accused made by P.W. 1 in Court is not safer to rely on in support of prosecution case. 8. Another defect in the prosecution case is that the report of the chemical analyst says that blood group could not be determined as the results are inconclusive. The shirt and pant sent for chemical analysis which had blood stains too could not be identified. The panch of recovery of the shirt and pant stated that there was blood stains on the recovered articles. Another important circumstance which creates suspicion in the prosecution case is that according to the post mortem report showed that there was fatal scalp injuries. One is at the temporal frontal region measuring 10 x 12 cm. and another 8 x 6 cm. on the occipital region. There was profused bleeding through the ears. In these circumstances according to the witnesses two blows were employed. P.W. Nos. 1 and 2 are definite that they have seen the second blow. If this is true we are at a loss to understand how the hockey stick did not have any blood stains. The Chemical Analyser's report clearly show that the hockey stick did not have any blood stains. In these circumstances it is doubtful whether the hockey stick has been used at all in committing the offence. If this is true we are at a loss to understand how the hockey stick did not have any blood stains. The Chemical Analyser's report clearly show that the hockey stick did not have any blood stains. In these circumstances it is doubtful whether the hockey stick has been used at all in committing the offence. The hockey stick is the only object to connect the accused with the offence and unless that connection is not established prosecution case become so shaky. In the light of this very important defect in the prosecution case it is not safe to hold the accused guilty. The circumstances set out herein above spells out a serious doubt in the prosecution case and the benefit of this doubt, of course, necessarily has to go to the accused. There is absolutely no other incriminating circumstance to establish the guilt of the accused. 9.In view of this we do not find any cogent evidence to sustain the prosecution and judgment of the trial Court in convicting the appellant for the offence under section 302 I.P.C. is based only on surmises and conjectures. 10.In the result this appeal is allowed and the judgment of the Court below is set aside. The appellant is acquitted of offence punishable under section 302 I.P.C. He is set at liberty forthwith, unless he is required in any other case. Appeal allowed.