JUDGMENT - VISHNU SAHAI, J.:---Since both these appeals arise out of same set of facts and a common impugned Judgment, we are disposing them off by one Judgment. Through these appeals, the appellants challenge the Judgement and Order dated 2-8-1995 passed by the Additional Sessions Judge, Pune, in Sessions Case No. 206 of 1995, convicting and sentencing them in the manner stated hereinafter (i) Under section 302 r/w 34 r/w 149 I.P.C. to undergo imprisonment for life and to pay a fine of Rs. 100/- each in default of payment of fine to undergo 3 months R.I.; (ii) Under section 148 I.P.C. to undergo one year R.I.; (iii) Under section 4 r/w section 25 of the Arms Act to undergo 3 months R.I. The substantive sentences of the appellants have been ordered to run concurrently. 2. In short, the prosecution case runs as under :- There was enmity between the deceased Naubatsing and the appellant Jaysing @ Gangawa Mesraj Kharariya because the latter had a feeling that the former had got his brother Raju externed. On 9-11-1994, at about 3 p.m. on the cycle of P.W. 13 Suresh Ghavri; the deceased was returning from Elpro Company and about the said time when he had reached near the field of Machindra Gawade on the Pimpri - Chinchwad Link Road, the appellants along with juvenile offender Munis alias Dhassu emerged. The appellant - Jaysing @ Gangawa asked the deceased to stop. He reprimanded him for getting his brother externed and thereafter, took out chilly powder and threw it towards the eyes of the deceased and Suresh Ghavri. Thereafter, appellant Jaysing inflicted a sword blow on Naubatsing. At that juncture, Suresh Ghavri got frightened and started running towards Patryachi Chawl. In the meantime, Jagbir Nathilal Walmiki alias Netaji P.W. 12 and Ajay Madhukar Sonawane P.W. 7 reached there. Evidence of Ajay is that he found Naubatsing lying down on the ground and the appellants along with Munis alias Dhassu assaulting him with swords. His evidence also shows that Netaji asked the appellant Gangawa as to why he was beating the deceased and thereafter the appellants and Munis ran away. Evidence of Ajay is that he found Naubatsing lying down on the ground and the appellants along with Munis alias Dhassu assaulting him with swords. His evidence also shows that Netaji asked the appellant Gangawa as to why he was beating the deceased and thereafter the appellants and Munis ran away. Thereafter, Ajay Sonawane P.W. 7 who had a pan stall at a distance of 5000 feet from the place of the incident came back to his pan stall and Netaji asked Anokhelal P.W. 5 who along with Kalicharan on a scooter was also returning from Elpro Company where the two of them were employed to inform the police. Pursuant to that, Anokhelal went and informed the police. 3. It appears from the evidence that thereafter Netaji proceeded to the house of Naubatsing and informed his brother Subhash Walmiki P.W. 6 about the assault on him. On that information, Subhash Walmiki P.W. 6 went to the place of the incident where he found his brother Naubatsing lying. In the meantime, Subhash's sister-in-law (wife of Naubatsing) also arrived there and thereafter, the two of them took Naubatsing to Lokmanya Hospital where the doctors pronounced him dead. Evidence of Subhash Walmiki P.W. 6 also shows that at the said hospital, police came and recorded his F.I.R. From the record, it appears that Subhash Walmiki's F.I.R. was recorded at about 6.30 p.m. the same evening by P.I. Sopan Jamdade P.W. 15. 4. The autopsy on the corpse of Naubatsing was conducted on 10-11-1994 between 9 a.m. to 11 a.m. by Dr. Pramod Godbole P.W. 8 who found on it, in all 27 ante - mortem injuries, their break - up being thus : 19 incised wounds, 4 linear abrasions, 1 abrasion, 2 contusions, 2 injuries out of which one has been described as fracture of base on skull and the other as peeling of skin. On internal examination, the doctor found massive internal damage which involved the fracture of the head bones and fractures pertaining to practically all vital bones of body. In the opinion of Dr. Godbole, the deceased died on account of shock and haemorrage from multiple injuries coupled with internal injuries to the brain. 5. The case was investigated in the usual manner by P.I. Jamdade P.W. 15. During the course of it on 10-11-1994, he arrested the appellants Raju and Ajaykumar. In the opinion of Dr. Godbole, the deceased died on account of shock and haemorrage from multiple injuries coupled with internal injuries to the brain. 5. The case was investigated in the usual manner by P.I. Jamdade P.W. 15. During the course of it on 10-11-1994, he arrested the appellants Raju and Ajaykumar. Pursuant to the interrogation of appellant-Raju, blood-stained clothes and the blood-stained sword was recovered on the pointing out of Raju, under a panchanama. On 21-11-1994, the appellants Jaysing and Umesh were brought in a arrested condition before P.I. Jamdade P.W. 15. He seized the blood - stained clothes which were on the person of these appellants under a panchanama. Pursuant to interrogation of appellant - Jaysing a sword was recovered on his pointing out under a panchanama. The clothes and the swords recovered from the said appellants were sent to the Chemical Analyst who found on them blood of 'B' group, the blood-group of the deceased, in-as-much as blood of the said blood-group was found by him on the clothes of the deceased. After completion of the investigation, the appellants were charge-sheeted. 6. Pursuant to the commitment of the case, the appellants were charged by the trial Court for offences punishable under section 302 r/w 34 r/w 149 I.P.C. etc. They pleaded not guilty to the said charges and claimed to be tried. Their defence was that of denial but they examined no witnesses in their support. During trial, in all the prosecution examined 15 witnesses. 3 of them namely Ajay Sonawane P.W. 7, Jagbir Nathilal Walmiki @ Netaji P.W. 12 and Suresh Ghavri P.W. 13 were examined as eye-witnesses. After assessing the evidence on record the learned trial Judge convicted and sentenced the appellants in the manner stated in para 1. 7. We have heard the Counsel for the parties and have perused the evidence on record. After utmost circumspection, we are of the Judgment that the appellants deserve the benefit of doubt. The evidence adduced by the prosecution, against the appellants, can be broadly classified under two heads :- (A) Occular account (B) Circumstantial evidence. 8. The occular account was sought to be furnished by the prosecution through the evidence of Ajay Sonawane P.W. 7, Jasbir Nathilal Walmiki P.W. 12 and Suresh Ghavri P.W. 13. The evidence adduced by the prosecution, against the appellants, can be broadly classified under two heads :- (A) Occular account (B) Circumstantial evidence. 8. The occular account was sought to be furnished by the prosecution through the evidence of Ajay Sonawane P.W. 7, Jasbir Nathilal Walmiki P.W. 12 and Suresh Ghavri P.W. 13. We may straight away observe that so far as Jasbir Walmiki P.W. 12 is concerned, he did not support the prosecution case and consequently was declared hostile by the prosecution. He was confronted with portions of his statement under section 161 Cr. P.C. where he is said to have given a occular account but, disclaimed having made them. Consequently, in our view, his evidence does not help the prosecution. We feel that the occular account furnished by Suresh Ghavri P.W. 13 also does not fix the involvement of the appellants in the crime. It is pertinent to point out that he refers to the presence of appellant Jaysing @ Gangawa only. He says that the deceased Naubatsing had told him his name. In such a situation, it was imperative for the prosecution to have sent him to identify appellant- Jaysing @ Gangawa at a test parade during investigation. It is not disputed by the learned Additional Public Prosecutor that no test-identification parade of appellant Gangawa was held during investigation. In the absence of the same, in our view, his evidence also is unreliable. 9. Thus, we are only left with occular account of Ajay Sonawane P.W. 7. Mr. R.S. More learned Counsel for the appellants emphatically urged that it would be extremely unsafe on our part to accept his testimony on account of his extremely improbable conduct. He urged that in his examination-in-chief, Ajay Sonawane admitted that the same night, when he cameback to his house, after taking dinner at his in-law's place, there was police in the locality but, he did not tell anything to the police as he was frightened. Thereafter, Mr. More invited our attention to para 4 of his evidence wherein he stated that his statement was recorded by the police on 10-11-1994 in the afternoon and till then, he did not disclose the incident which he had witnessed to anybody. Finally, Mr. More invited our attention to the following lines of his statement contained in the said para :- "When I came home in the night, I saw the police. Finally, Mr. More invited our attention to the following lines of his statement contained in the said para :- "When I came home in the night, I saw the police. Police were that time inquiring. I did not inform to the police that I knew about the incident." Mr. More urged and with ample justification, in our Judgment, that had this witness seen the incident, then he would have had no reservations in informing the police about it. He emphatically canvassed that the explanation furnished by him in respect of the non-disclosure namely that he was frightened, does not hold any water because, if it was plausible, then he would have been frightened on the afternoon of 10-11-1994 (the next day) when his statement under section 161 Cr.P.C. was recorded and wherein he gave occular account. Mr. More urged that the non-disclosure of the incident to the police at night/time was itself sufficient to reject the testimony of this witness. To lend thrust to his submission, Mr. More invited our attention to the decision of the Apex Court reported in A.I.R. 1976 Supreme Court page 2488 (State of Orissa Appellant v. Mr. Brahmananda Nanda, Respondent)1, wherein, as is apparent, from a perusal of para 2, the Supreme Court rejected the evidence of the solitary eye-witness Hrudananda on the ground that he had not disclosed the incident to anyone for about 1½ days. The Supreme Court held that this non-disclosure on his part shattered his credibility. We feel that the ratio laid down in the said case applies on all fours to our case. Mr. More also pointed out that the evidence of this witness shows that he was knowing the deceased from before the incident and urged that he had really seen the incident, he would have gone and informed the family members of the deceased. Mr. More also pointed out that it is a unhappy co-incidence that just at the time after closing his pan shop, when he set out in the direction of the place of the incident, he saw the appellants and the juvenile offender Munis alias Dhassu assaulting the deceased. 9-A. Mr. S.R. Borulkar, Additional Public Prosecutor, for the respondent strenuously urged that since this witness was a wholly independent witness and his evidence with regard to the manner of assault was corroborated by the medical evidence, we should accept his evidence. 9-A. Mr. S.R. Borulkar, Additional Public Prosecutor, for the respondent strenuously urged that since this witness was a wholly independent witness and his evidence with regard to the manner of assault was corroborated by the medical evidence, we should accept his evidence. We regret that we do not find any merit in his submission. Way back in the year 1981. Supreme Court in the oft-quoted case of (Shankarlal Gyarrilal Dikshit v. State of Maharashtra)2, reported in A.I.R. 1981 S.C. page 765 wherein a similar argument was canvassed, in para 33 observed thus :- "Different motives operate on the minds of different persons in the making of unfounded accusations. Besides human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions." 9-B. It should be borne in mind that the law of appreciation of evidence is not that the evidence of an independent witness should be ipso facto accepted and that of a interested or enmical witness mechanically rejected. The law is that the evidence of a witness should only be accepted if it is in tune with probabilities and read as a whole has a ring of truth. 10. Once the occular account is rejected then, the residual evidence which remains against the appellants is circumstantial evidence. Mr. Borulkar, Additional Public Prosecutor, urged that this circumstantial evidence inspires confidence and is sufficient for conviction of the appellants; especially of appellant-Jaysing @ Gangawa. We are constrained to observe that we also do not find any merit in this submission. The bulk of circumstantial evidence against the appellants comprises of recovery. From the appellant-Raju pursuant to his arrest, on his pointing out, a blood-stained sword was recovered from the grass situated near the place of the incident and blood-stained clothes from a house in H.A. Colony. In our view, no importance can be attached to the said recoveries. The bulk of circumstantial evidence against the appellants comprises of recovery. From the appellant-Raju pursuant to his arrest, on his pointing out, a blood-stained sword was recovered from the grass situated near the place of the incident and blood-stained clothes from a house in H.A. Colony. In our view, no importance can be attached to the said recoveries. So far as the recovery of sword is concerned, it cannot be accepted for three reasons namely :- (a) in the Court, public panch of recovery Mohan Rokade P.W. 2 pointed out the appellant-Ajaykumar as the person from whom the recovery was made; (b) in his cross-examination, public panch Mohan Rokade admitted that he had acted as a panch in about 25 cases pertaining to Nigdi Police Station; and (c) in his cross-examination, Mohan Rokade stated that "police had told that the panchanama of field of Moreshwar Golande and about a sword lying there was to be drawn." Admission (c) of Mohan Rokade P.W. 2 reminded us of the observations of the Privy Council in the oft-referred case of (Pulukuri Kottaya and others ... Appellants v. Emperor)3, reported in A.I.R. 1947 Privy Council/67 wherein the Privy Council observed in para 9 in terms "knives were discovered many years ago." Here sword was discovered long ago. And in view of the said statement of Mohan Rokade the recovery of sword cannot be said to be on the pointing out of the appellant-Raju. So far as the recovery of clothes is concerned, again the same is the situation. Public panch of the said recovery Manik Chaskar P.W. 4 in cross-examination stated that "Police told that panchanama was to be drawn of the clothes by going to H.A. Colony. There was no talk between myself and accused." In other words, this admission of Manik Chaskar clearly establishes that the clothes were discovered long ago and not under section 27 of the Evidence Act on the pointing out of the appellant-Raju. Apart from the above, it has come in the cross-examination of Manik Chaskar that the cupboard from which recovery of clothes was made was unlocked. 11. We now take up the recovery evidence against the appellant-Jaysing @ Gangawa and Umesh @ Atto. We would first like to take up the recovery from the appellant-Jaysing @ Gangawa. Apart from the above, it has come in the cross-examination of Manik Chaskar that the cupboard from which recovery of clothes was made was unlocked. 11. We now take up the recovery evidence against the appellant-Jaysing @ Gangawa and Umesh @ Atto. We would first like to take up the recovery from the appellant-Jaysing @ Gangawa. It is alleged by the prosecution that pursuant to his arrest, when he was produced before P.I. Jamdade on 21-11-1994, he was putting on a black T-shirt and black full pant, both stained with blood. With righteous indignation Mr. More urged that it is an insult to one's intelligence that 12 days after the incident, the said appellant would be putting on blood-stained clothes which is sum and substance, in his contention, meant an open invitation to the police to arrest him. We find merit in his submission and feel that on account of this, extreme improbability, the said recovery cannot be relied upon despite the fact that the Chemical Analyst found on the said clothes blood of 'B' group, namely the blood group of the deceased. The other item of recovery effected from this appellant, is a blood stained sword. This sword was recovered on 22-11-1994 in the presence of public panch Ganpat Shete P.W. 14. Mr. More invited our attention to the evidence of this public panch. He urged that in para 2, in his cross-examination, Ganpat Shete P.W. 14 admitted that the place of recovery was a open land and in his cross-examination, in para 3, also admitted that the place of recovery was a open land and the grass (wherein the sword was concealed) was of knee height. It is well-settled that recovery from an open place does not constitute any incriminating evidence and if an authority is needed, it would be pertinent to peruse the observations of the Supreme Court in para 4 of the decision reported in A.I.R. 1954 Supreme Court page 39 (Trimbak v. The State of Madhya Pradesh)4. For the said reasons, we are rejecting this dual piece of evidence of recovery on the pointing out of the appellant-Jaysing @ Gangawa. 12. We now come to the evidence of recovery on the pointing out of appellant-Umesh Dhakoliya. For the said reasons, we are rejecting this dual piece of evidence of recovery on the pointing out of the appellant-Jaysing @ Gangawa. 12. We now come to the evidence of recovery on the pointing out of appellant-Umesh Dhakoliya. It is alleged by the prosecution that when the said appellant was brought before P.I. Jamdade P.W. 15 on 21-11-1994, he was putting on blood-stained blackish blue-coloured full shirt and ash coloured full-pant. As mentioned earlier, Mr. More is wholly justified in canvassing that this conduct on the part of the said appellant is only compatible with the hypothesis that he was extending an open invitation to the police to apprehend him. To repeat, it is an insult to our intelligence that 12 days after commission of murder, the said appellant would have been openly parading himself putting on blood-stained clothes. Consequently, this recovery goes. 13. Before parting with the circumstantial evidence, it would be pertinent to mention that the prosecution has pressed into service the evidence of two rickshawwallas namely Ramdas Alkunde P.W. 10 and Rafiq Shaikh P.W. 11 who on the date of the incident, about an hour after the incident, are alleged to have taken the appellant-Jaysing @ Gangawa and Umesh from Pimpri-Chinchwad to Dehu Road and from Dehu Road to Lonavla respectively. It is pertinent to point out that these witnesses have not nominated the said appellants and identified them for the first time, in Court. In our view, it was imperative for the prosecution to arrange for a test identification of these appellants during investigation and to send these witnesses to identify them. We feel that in the absence of an identification parade during investigation, their identification of the appellants for the first time in Court cannot be accepted. 14. We would be failing in our fairness, if we do not mention, as urged by Mr. Borulkar, Additional Public Prosecutor that against appellant Jaysing @ Gangawa, there is the evidence of Tarasing P.W. 9 and the circumstance of motive. Mr. Borulkar urged that Tarasing Tak P.W. 9 stated that about two days prior to last Diwali, appellant-Jaysing Gangawa had come to his house and asked him to prepare four swords which he made and gave him for Rs. 250/- two days later. He also stated that the swords shown to him namely Article Nos. Mr. Borulkar urged that Tarasing Tak P.W. 9 stated that about two days prior to last Diwali, appellant-Jaysing Gangawa had come to his house and asked him to prepare four swords which he made and gave him for Rs. 250/- two days later. He also stated that the swords shown to him namely Article Nos. 6, 7, 12 and 27 are the same swords which he had made. We regret that we cannot place any reliance on this evidence in view of his admission during cross-examination that "police had said that swords were from my shop and hence, I said so." Coming to the circumstance of motive, we make no bones in observing that motive by itself would not lead the prosecution anywhere. It may at the highest create a strong suspicion against the said appellant. But, as Gajendragadkar, J., (as he then was) in the oft-quoted case of (Sarwan Singh Ratan Singh v. State of Punjab)5, reported in A.I.R. 1957 Supreme Court 637, observed in para 9 that "suspicions however strong cannot take the place of proof". 15. For the said reasons, we feel that the appellants deserve the benefit of doubt and we extend the same to them. We allow these appeals and set aside their convictions and sentences on all the counts. In case they have paid the fine, it shall stand refunded to them. They are in jail and shall be released forthwith unless wanted in some other case. Appeals allowed. *****