JUDGMENT - R.K. BATTA, J.:---The appellant was tried for murder of Vithalrao Khaire under section 302 of the Indian Penal Code. The prosecution had examined eight witnesses in support of the said charge. The trial Court convicted the appellant of the offence under section 302 of the Indian Penal Code and sentenced the appellant to undergo imprisonment for life. The conviction and sentence of the appellant is subject matter of challenge in this appeal. 2.According to the prosecution case, the incident was witnessed by one Mahadeo (P.W. 5) and a deaf and dumb girl. The incident took place on 4-5-1992. The statement of P.W. 5 Mahadeo was recorded on 14-5-1992. The statement of deaf and dumb witness was recorded on 1-8-1992 before the panchas, P.W. 1 and P.W. 2 who are examined in the Court. The deaf and dumb witness and the Head Master who had interpreted the gestures made by the deaf and dumb witness on the strength of which the statement of the said witness was recorded, had not been examined by the prosecution. Though the trial Judge came to the conclusion that the pancha witnesses had supported the prosecution partly, yet their evidence was of no avail as the same came to be recorded very late. The trial Judge also came to the conclusion that the evidence of the pancha witnesses, in fact, has no much relevance and more so because the prosecution had not examined the deaf and dumb woman. The Trial Judge, however, relied upon the statement of Mahadeo (P.W. 5) on whose testimony the entire fate of the prosecution case rested. The other witnesses examined by the prosecution are Ravindra (P.W. 3), son of the deceased, who found the dead body of his father in the field in the evening and lodged the First Information Report and Sumitra (P.W. 4), wife of the deceased, to establish motive of the appellant to kill the deceased. The motive, according to the prosecution was four-fold, viz. removal of the appellant from service by the deceased prior to the incident; quarrel between the appellant and the deceased regarding money; threat given by the appellant to the deceased that he would cut his head and the illicit relationship between the appellant and P.W. 4, wife of deceased. P.W. 6 Dr. removal of the appellant from service by the deceased prior to the incident; quarrel between the appellant and the deceased regarding money; threat given by the appellant to the deceased that he would cut his head and the illicit relationship between the appellant and P.W. 4, wife of deceased. P.W. 6 Dr. Rathore was examined regarding post-mortem of the deceased; P.W. 7 was examined to prove that the deaf and dumb woman came running as a result of which P.W. 7 went towards the spot and saw the dead body of the deceased as also she later on saw P.W. 5 Mahadeo in the adjoining field. The Investigating Officer was examined as P.W. 8. 3.Learned Advocate Mr. Daga appearing on behalf of the appellant urged before us that not only the pancha witnesses who were examined to prove the statement made before them by the deaf and dumb witness were declared hostile, but even otherswise, in the absence of examination of deaf and dumb woman as well as interpreter who had interpreted the gestures made by the said woman, the statement of deaf and dumb woman has absolutely no value. He then pointed out that P.W. 5 Mahadeo who is star witness of the prosecution, was kept in the Police custody for about eight days, but he had not disclosed anything during the first eight days, but ultimately his statement was recorded under the threat to implicate him to which statement not much value can be attached. He also urged that the prosecution has failed to prove motive; that the milkmen whom are initially suspected, had strong motive to eliminate the deceased on account of dispute of land between them and the deceased and even if it is held that there is strong suspension about the involvement of the appellant, the same is not sufficient to sustain the conviction of the appellant. 4.On the other hand, the learned Additional Public Prosecutor urged before us that the motive for the commission of crime has been established by the prosecution which is illicit relationship between the appellant and P.W. 4, wife of deceased. 4.On the other hand, the learned Additional Public Prosecutor urged before us that the motive for the commission of crime has been established by the prosecution which is illicit relationship between the appellant and P.W. 4, wife of deceased. According to him, there is no reason to disbelieve the statement of P.W. 5 which gets corroboration from the evidence of panchas witnesses as well as P.W. 7 who saw the deaf and dumb woman coming running and shouting after which P.W. 7 went in that direction and later saw the dead body of the deceased. Learned A.P.P. further pointed out that subsequently, P.W. 7 had also seen P.W. 5 Mahadeo in the adjoining field, that is to say, in the vicinity of the scene of offence and that the evidence on record proves beyond doubt the charge against the appellant and as such, there is no reason or justification to interfere with the conviction of the appellant. 5.As already recorded, the incident is reported to have been seen by two witnesses. The deaf and dumb witness, whose statement was recorded by the Investigating Officer on 1-8-1992 before the panchas, was not in fact examined in the Court. No explanation was given by the Investigating Officer or the Addl. Public Prosecutor for non-examination of the said deaf and dumb witness. It is well established rule of law that when direct evidence is available, the same should be produced in the Court. The examination of pancha witnesses who also practically did not support the prosecution case, was rightly not relied upon by the trial Court and as such, we are left with the testimony of eye witness P.W. 5 Mahadeo. 6.There is no dispute that the death occurred on account of strangulation and was homicidal in nature. The First Information Report was lodged by P.W. 3 Ravindra, son of the deceased who went to the field where his father had gone in the morning and had not returned. He found his father lying in between Kawata tree and Rohini tree and his neck was pressed by means of Shela. In the First Information Report, P.W. 3 expressed suspicion against milkmen Patel, Alam, Ghhotu and one another person. He suspected it because on the previous day, he had seen them cutting trees and taking fodder from their land and he had altercation with them. In the First Information Report, P.W. 3 expressed suspicion against milkmen Patel, Alam, Ghhotu and one another person. He suspected it because on the previous day, he had seen them cutting trees and taking fodder from their land and he had altercation with them. On return, he had told of this fact to his father. On the next day, the dead body of his father was found in the field which was in possession of Narayan Gawande. P.W. 3 Ravindra admitted that they had purchased the property from said Narayan Gawande. He also stated that they did not sell trees in their land, but Narayan Gawande had sold them to the milkmen. This means that there was a dispute regarding the property between the said milkmen and the father of P.W. 3 who were asserting their right to cut trees and fodder from there on the previous day. It is not known whether the Investigating Officer had ruled out the possibility of involvement of said milkmen nor it is explicitly found in the deposition of the Investigating Officer especially when P.W. 3 had initially suspected the said milkmen for the crime in question. Of course, this witness also stated that there were rumours in the village about illicit relationship between his mother and the appellant, but he had categorically stated that he was not himself knowing of the said relationship. He also admitted that he did not tell the police about the quarrel between his father and accused on money either in his first written report to the police or in any subsequent statement recorded by the police. Thus, strictly speaking, motive vis-a-vis the appellant is not established through the testimony of P.W. 3 Ravindra. 7.The prosecution had also examined P.W. 4 Sumitra who is wife of deceased in order to establish motive against the appellant. According to her deposition, the appellant was working in their field and he is distantly related to her. She had in due course developed physical relationship, that is to say, illicit relations with the appellant. She also alleged that her husband had also illicit relationship with a lady teacher at Aanganwadi. She further states that appellant was removed from service by her husband. She further stated that her younger son had told her that her husband was killed by somebody in the field. She also alleged that her husband had also illicit relationship with a lady teacher at Aanganwadi. She further states that appellant was removed from service by her husband. She further stated that her younger son had told her that her husband was killed by somebody in the field. She further stated that accused had threatened that he would cut the head of her husband. She has stated that she had told the police about it as also that the accused had threatened her husband, but the said facts were found not recorded in her police statement. The Investigating Officer (P.W. 8) has stated that P.W. 4 did not tell about quarrel between the accused and her husband on account of money or that accused had threatened her husband. The Investigating Officer further stated that she did not tell in her statement that there was any quarrel between her husband and accused on any account and that he had threatened that he would cut the head of her husband in the field. Thus, this part of the motive seems to be an improvement as a result of after-thought. Of course, she stood by her statement that there was illicit relationship between her and the appellant. 8.The crucial evidence on which the fate of the prosecution case rests, is that of Mahadeo (P.W. 5). Mahadeo (P.W. 5) has stated that there was fight between two bullocks as a result of which, the rope which was tied, was cut and one of the bullocks went towards the land Khostad. He ran after the bullock and went to land Khostad where he saw Devidas, viz. the appellant pressing neck of Vithal Master (deceased) by means of Shela. He has further stated that accused saw him and threatened him that if he disclosed this fact to anybody, he would kill him and on account of said threat, he returned back to his land. He also stated that a woman who is deaf and dumb, went running and crying, but as we have already pointed out, the said deaf and dumb witness had not been examined. He admits that he did not tell this to anybody till police recorded his statement. The incident had taken place on 4-5-1992 and the statement of this witness was recorded on 14-5-1992 after the Investigating Officer took over the investigation on 14-5-1992. He admits that he did not tell this to anybody till police recorded his statement. The incident had taken place on 4-5-1992 and the statement of this witness was recorded on 14-5-1992 after the Investigating Officer took over the investigation on 14-5-1992. This witness admitted that he along with others were kept in Police Station for eight days. He further stated that in those eight days, he did not disclose about the incident to the Police, because accused had threatened him. This witness knew that accused Devidas had already been arrested and was in the lock-up. It is after keeping this witness in custody in Police Station for eight days that the statement in question was recorded by the police. There was no re-examination by the Addl. Public Prosecutor nor any challenge to the detention of this witness in police station for eight days prior to recording his statement. In such set of facts, we find it rather difficult to place explicit reliance on the testimony of P.W. 5 Mahadeo without any independent corroboration. The corroboration possibly could have been from the evidence of deaf and dumb woman who, for the reasons best known to the Investigating Officer and the A.P.P., was not examined in the Court nor any explanation has been furnished for her non-examination. There is no doubt that P.W. 7 has stated that he saw the deaf and dumb woman running and shouting and pointing towards the land Khostad. According to P.W. 7, the said deaf and dumb woman had made signs by her hand referring to her goats. Accordingly, they went to land Khostad and brought back the goats of the said deaf and dumb woman. It is while returning along with the goats that P.W. 7 saw the dead body of Vithal Master. It is pertinent to note that even this witness was kept in the police station. He stated that police threatened them that if they did not give proper statement, they will file a case against them and because of the threats, he gave statement to the police. This evidence may give rise to some suspicion, but the same cannot clinch the issue of involvement of the appellant with the crime. 9.In view of the above, we find it difficult to sustain the conviction of the appellant. Accordingly, the appeal is allowed. The conviction and sentence of the appellant is hereby set aside. This evidence may give rise to some suspicion, but the same cannot clinch the issue of involvement of the appellant with the crime. 9.In view of the above, we find it difficult to sustain the conviction of the appellant. Accordingly, the appeal is allowed. The conviction and sentence of the appellant is hereby set aside. The appellant shall be set at liberty forthwith in case he is not required in any other case. Appeal allowed. -----