Judgment P.V. Kakade, J.— The appellant has preferred this Appeal against the judgment and Order dated 25th July, 2000, passed against him for commi-ssion of the offence punishable under section 302 of the Indian Penal Code to undergo imprisonment for life and to pay a fine of Rs. 1,000/- and, in default, to undergo imprisonment for a further period of two and a half months passed by the learned Addi-tional Sessions Judge, South Goa, Margao, in Sessions Case No. 5/98. 2. The facts giving rise to this case in brief are thus:- One Mohammad Shafi Bepari (P.W. 14), is a beef vendor from Dhar-wad and his cousin Gudusab Bepari (P.W.9), sells beef at Nagamasjid, Ponda. P.W. 14 supplies bulls to P.W.9 and the deceased Mallappa Bhimappa Sangolli, who was popularly known as “Budda”, used to bring the bulls from Dharwad to Ponda on foot and deliver them to P.W.9, for which P.W.14 used to pay him Rs. 300/- at Dharwad and P.W.9 used to pay him an amount of Rs. 400/- after delivery of the bulls. Usually Budda used to take about 5 days to reach Ponda from Dharwad, on foot. On 1st January, 1998 or 2nd January, 1998 at about 2 p.m., Budda left Dharwad with bulls to come to Ponda and P.W.14 had given him two notes of Rs. 100/- and ten notes of Rs. 10/-. The accused is from the same village wherefrom Budda comes. The accused who was also coming to Goa met Budda on the way prior to Mollem and both started coming together with the bulls. At about 9 a.m. on Sunday, i.e. 4th January, 1998, Budda and the accu-sed reached Gavegalli and had tea in the tea stall of P.W.10, Shivanand Hangal. While Budda was paying the charges for the tea, the accused saw the money which was with Budda. The accused and Budda left the tea stall of P.W.10, after about 10 to 15 minutes. Soon thereafter, one Mohan Dessai, P.C. Buckle No. 2386 (P.W.16) on duty at Check Naka of Mollem Check Post saw Budda driving the bulls behind Mollem Check Post and Budda was having hunter and stick and the accused was in his company. The accused and Budda left the tea stall of P.W.10, after about 10 to 15 minutes. Soon thereafter, one Mohan Dessai, P.C. Buckle No. 2386 (P.W.16) on duty at Check Naka of Mollem Check Post saw Budda driving the bulls behind Mollem Check Post and Budda was having hunter and stick and the accused was in his company. On the same day, i.e. 4th January, 1998, Budda and the accused reached the Panchayat Building of Mollem alongwith the bulls and they spent the night there and early in the morning of 5th January, 1998, they started proceeding further with the bulls. One Yellapa Guli (P.W.8), saw them near the village Panchayat building. On 5th January, 1998, at about 6.30 a.m. they went to the Hotel of one Vishram Gaonkar and his son Ashok Gaonkar and had tea and batatawadas. At about 7 a.m. on the same day A.S.I. Deu S. Raut Dessai, (P.W.11), saw the accused and Budda walking towards the Magazine of Salgaonkars at Cansau-lim-Mollem with the bulls. Budda had the hunter whereas the stick was with the accused. On the same day at 8 p.m. Sadanand Kerkar (P.W.1), Security Guard in the Explosive Magazine of Salgaokar who was in uniform, saw the accused, who, on seeing P.W.1 became nervous and upon being questioned, gave his name as Naguesh and told P.W.1 in broken Hindi “Admi Mara”. The accused then took P.W.1 inside the gate of the Magazine and showed the dead body of Budda, P.W.1 told the accused to wait there only and went to Mollem Out Post in order to lodge the complaint. 3. P.W.12, Chandra has Gove-kar. P.C. Buckle No. 3229, was at the Mollem Out Post on 5th January, 1998, P.W.1 told him about the incident. P.W.1 was sent alongwith a policeman to Collem Police Station and P.W.12 alongwith Head Cons-table Veluskar came near Salgaon-kar’s property and saw the accused hiding by sitting behind the bushes. They went near the accused and questioned him as to why he was hiding and told him to show the dead body of the person who was killed. The accused took them to the gate of Salgaonkar’s property and showed P.W.12 and Head Constable the dead body. Upon being question by P.W.12 as to from where he had come and who had killed the old man, the accu-sed being nervous, could not give any rational answers. The accused took them to the gate of Salgaonkar’s property and showed P.W.12 and Head Constable the dead body. Upon being question by P.W.12 as to from where he had come and who had killed the old man, the accu-sed being nervous, could not give any rational answers. At Collem Police Station at about 10.15 a.m. on 5th January, 1998 P.S.I. Manjunath Dessai (P.W.17), recorded the comp-laint, He came to the scene of offence and in the presence of P.W.2 Appa Gaonkar and another panch witness, drew the panchanama of the scene of the incident and sketch in the after-noon, Thereafter the inquest pancha-nama was prepared and service of the police dog squad, scientific report and photographer was called at the time of the offence panchanama. P.W.6, Vinayak Naik, working at the dog unit gave the smell of the wooden danda which was near the dead body to the dog and the said dog jumped on the accused, who was amongst the crowd and barked at him. The dead body was identified by P.W.9 Bepari, to the police. The accused was put under arrest on 5th January, 1998 and his clothes were attached under pancha-nama. The dead body was sent to Margao for post mortem examination, where Dr. Avinash Pujari (P.W.13), conducted the autopsy. The clothes of the deceased and the hunter which was found around the neck of the body were attached under the pan-chanama. Also the other articles found on and near the body were duly attached under panchanama and the articles were eventually sent to the forensic laboratory for scientific examination. The statements of witnesses were recorded and on completion of the investigation, chargesheet was sent to the Court of law. 4. The learned J.M.F.C. San-guem, committed the case to the Court of Sessions, Margao. The lear-ned Sessions judge framed the charge against the accused for the offence punishable under Section 302 of the Indian Penal Code, to which the accused pleaded not guilty. The defence of the accused is that of total denial of any criminal liability. The prosecution led its evidence consis-ting of as many as 17 witnesses in support of the case and also sub-mitted documentary evidence. The defence of the accused is that of total denial of any criminal liability. The prosecution led its evidence consis-ting of as many as 17 witnesses in support of the case and also sub-mitted documentary evidence. On the basis of the available evidence the learned Additional Sessions Judge came to the conclusion that the pro-secution had succeeded in estab-lishing the charge framed against the accused and, as such, it was proved that the accused had committed the murder of Budda at the said time and place with the intention of taking away the cash and accordingly passed the order of conviction and conse-quent sentence. Hence the appeal. 5. We heard Shri P.P. Singh, learned counsel for the appellant and Shri Lawande, learned Public Prosecutor at length, with whose help we have perused the entire evidence on record in details. At the outset, we may note that we concur with the finding recorded by the learned Additional Sessions Judge that the deceased Budda suffe-red homicidal death at the relevant time and there is sufficient evidence to support such finding. The moot question however, is whether the culprit is proved to be the accused or not. As can be seen from the record, there is no eye-witness to the incident of homicide of Budda and the case rests entirely on circumstantial evidence. The learned Additional Sessions Judge while coming to the conclusion of guilt of the accused, has relied upon as many as ten different circumstances revealed from the record in order to base his order holding the accused guilty for commission of the said offence. The learned Additional Sessions Judge while coming to the conclusion of guilt of the accused, has relied upon as many as ten different circumstances revealed from the record in order to base his order holding the accused guilty for commission of the said offence. The said ten points are thus:- (a) Deceased was bringing bulls from Dharwad/Karna-taka to Goa via Mollem: (b) Deceased left Dharwad on 1-1-1998 to come to Ponda, with 8 bulls by walk, which would take him 5 days: (c) On 4-1-1998 about 9.00 p.m. deceased reached Mollem with bulls and accused was with him and both were together till 7.30 p.m. of 5-1-1998: (d) On 5-1-1998, about 8.30 a.m. accused became ner-vous on seeing P.W.1 and disclosed that he killed Budda: (e) The dead body of Budda was found near Salgaon-kar’s Magazine, with inju-ries: (f) Tracker-dog jumping on the accused and barking at him: (g) Arrest of accused and attachment of his clothes with blood stains: (h) Recovery of wooden dandas, cash, bucket, under Section 27 of the Indian Evidence Act at the instance of the accused: (i) Post-mortem examination. Cause of death, Blood group of the deceased: and (j) General evidence like Chemical Analyser’s Report on exhibits, Photographs, statements of witnesses, statement of accused under Section 313 Cr.P.C. etc. If we critically peruse the said points, it is obvious that the circums-tances, (c),(d),(e) and (f) are of vital importance which would be sufficient for our scrutiny to decide the fate of the case. This is especially so when the prosecution evidence is mainly based on the circumstance that the accused and the deceased were “last seen together” by as many as four witnesses. Therefore, in our consi-dered view it would be just and proper on our part to examine the testimonies of those witnesses in order to appreciate the said relevant circumstances in their proper perspective. 6. While considering this aspect, one must bear in mind that no identification parade has been taken in the course of the investigation to support the testimonies of the said witnesses, who have come forward to testify that they had seen the accused and the deceased together just prior to the incident of death of Budda. 6. While considering this aspect, one must bear in mind that no identification parade has been taken in the course of the investigation to support the testimonies of the said witnesses, who have come forward to testify that they had seen the accused and the deceased together just prior to the incident of death of Budda. In our view, this is inherent lacuna in the prosecution case, specially when the evidence on record is sufficient to show that all the said witnesses did not know either the accused or the deceased Budda, since prior to the incident and they have allegedly seen them at the relevant time and place only on the said occasion to which they testify. 7. P.W.10, Shivanand Hangal, has stated that one day in the month of January in the year prior to his deposition he alongwith his grand-mother were in tea stall. It was on Sunday at 9 a.m. According to him Budda and accused came with the bulls to the tea stall and initially the accused did not enter the tea stall but was sitting by the road side and Budda after ordering for two teas, called the accused inside and gave him one tea and himself had the other. Thereafter Budda took out a bundle of notes in the denomination of Rs. 10/- and paid Rs. 10/- to P.W.10. Shivanand Hangal, upon which he returned Rs. 7/- to Budda. In his cross-examination he has stated that he did not see Budda anymore and came to know later on that Budda was killed. He has also stated in his cross-examination that he had seen the accused for the first time on the relevant day when he had visited the tea stall with Budda for tea and thereafter in the court room itself. It is evident that the incident has taken place on 5th January, 1998, whereas the testimony is recorded in the Court on 12th October, 1999, i.e. after considerable period has passed in between and still P.W.10, Shivanand Hangal, cate-gorically states and identifies the accused to be the person who was accompanying Budda at the relevant time. In our view the testimony of P.W. 10 Shivanand Hangal, in such condition cannot be said to be totally reliable specially when it is not supported by identification parade. In our view the testimony of P.W. 10 Shivanand Hangal, in such condition cannot be said to be totally reliable specially when it is not supported by identification parade. It is to be noted that P.W.10, Shivanand Hangal, is running a tea stall on the road and several people visit his joint for tea and it would be quite difficult for a normal person to identify a nondescript person like the accused, who was said to be sitting outside on the road and then came in the stall for tea with the deceased. It is also surprising as to how this witness remembers the details that Budda took out a bundle of Rs. 10/- notes and gave one note of Rs. 10/- to him and he returned the amount of Rs. 7/- to him, retaining the price of the tea. This aspect, in our view, in the testimony of P.W.10, Shivanand Hangal, does not inspire confidence and obviously, the testimony fails the test of reliability. 8. The second witness is P.W.8, Yellappa Guli, who is alleged to have seen the accused and the deceased together prior to the incident. He has stated that he was working as a labourer at Mollem cutting grass and residing in a school at Mollem, which is a building containing the Village Panchayat Office. He has further stated that one day at about 6 p.m. he was preparing food, at which time the accused and the deceased were sitting alongwith him and other labourers near a fire warming them-selves as it was cold. He has also stated that the deceased was Budda and the accused was with him and they had brought bulls to that place and the animals were grazing. Accor-ding to him, the next morning at about 6 p.m. he saw the accused as well as the deceased going away with the bulls. He has described the clothes of the deceased as well as the accused. On a critical scrutiny of the testimony of the witness Guli, it is seen that it take us nowhere, spe-cially when the witness is unable to give any other details regarding year, month, and day of witnessing them together. He has described the clothes of the deceased as well as the accused. On a critical scrutiny of the testimony of the witness Guli, it is seen that it take us nowhere, spe-cially when the witness is unable to give any other details regarding year, month, and day of witnessing them together. The learned trial Judge has believed the testimony observing that in all possibility, the probability aspect is that Budda and the accused had reached near the Village Pancha-yat building at night time on the basis of the testimony of this witness. Therefore, we hold that the testimony of witness Guli is of no help except for establishing that the accused person was accompanying Budda at the relevant time, which fact is not denied by the defence also. 9. Another witness who has seen the deceased and accused toge-ther is P.W.11, A.S.I. Deu S. Raut Desai, who was working at Mollem Out Post. He has stated that at about 7 a.m. on 5th January, 1998, he had gone to Mollem and after completing his work there in about 20 minutes, he was returning to Mollem Out Post when he saw two persons walking towards Salgaonkar’s property at Cansaulim, Mollem and that one of them was the accused and there were about more than ten cattle heads with them, which were in the field. According to him, the accused was wearing a dhoti and carrying a whip, whereas the other person had a stick. A perusal of the testimony of this witness, to say the least, shows that the said Police Officer is narrating the version which can be said to be an afterthought. Evidently, he was travelling on a motor-cycle with moderate speed. It cannot be concei-ved as to how a person, eventhough he is a Police officer, can observe the details, such as dress of the person and the fact that there were animals with him, while just passing in a speed on a motor-cycle on a public road, Suffice it to say that we are unable to accept P.W.11’s testimony as reliable, when he states that at about 7 a.m. on the fateful day he saw the accused and deceased together while passing on a motor-cycle on the road. 10. 10. P.W.7, Ashok Gaunkar, is another witness examined by the prosecution, stating that he saw the accused and the deceased together at about 6.30 a.m. when he and his father were in the Hotel. However, it is also seen that this witness, P.W.7, Ashok Gaunkar has not supported the prosecution case and scrutiny of his evidence takes us nowhere and it would be prudent to exclude the testimony of this witness altogether from consideration. Therefore, as we have seen, the entire evidence regarding the factum of “last seen together” of the deceased and the accused at the relevant time, by itself, would not take us anywhere to lead to the conclusion that it would be one of the incriminating circums-tances to bring home the guilt, specially when other circumstances on record are still more weak to complete the chain of circumstantial evidence. 11. The learned trial judge has held that at about 8.30 a.m. on 5th January, 1998, the accused became nervous on seeing P.W.1, Sadanand Kerkar and disclosed that he had killed Budda. P.W.1, Sadanand Kerkar, was in uniform as he was a Security Guard at the relevant time and he has deposed that at about 8.30 a.m. on that day he reached near the Magazine of Salgaonkar and saw the accused and on seeing him the accused became nervous and when P.W.1 Sadanand Kerkar asked him as to why he was so frightened the accused approached him saying. “Admi Mara” and, thereafter, led the witness to the place where the body was lying. At that time, P.W.1 Kerkar, asked the accused to stay at the place and went to Mollem Out Post to file the complaint. In this regard, it must be noted initially that if the accused had really killed the person, it was the best opportunity for him to escape from the place because it has come in evidence that the place had no fence and it was open on the side of the public road. Still the evidence shows that the accused remained there without escaping, even when opportunity was there, till P.W.1, Kerkar, and the Police came on the spot. This circumstance, by itself, would run against the hypothesis of guilt of the accused, So far as the alleged disclosure to the effect that “Admi Mara” is concerned, it can be interpreted either saying as “a person had died”. This circumstance, by itself, would run against the hypothesis of guilt of the accused, So far as the alleged disclosure to the effect that “Admi Mara” is concerned, it can be interpreted either saying as “a person had died”. or “I have killed a person”. The testimony does not disclose that the point was got clarified in the cross-examination or examination-in- chief itself. Moreover, the assertion on the part of the prosecution that the accused got nervous after seeing the uniform of P.W.1, can merely be a surmise on the part of P.W.1, Kerkar himself, because it is evident that even after seeing the uniformed watchman the accused did not try to run away either after seeing him or when P.W.1, Kerkar, left for informing the Police. Therefore, the alleged nervousness of the accused and the alleged disclosure made by him to P.W.1, Kerkar, cannot be held to be a material circumstance, which could be used against the accused to hold him guilty. 12. P.W.2, Appa Gaonkar, has deposed that at the time of writing of the panchanama of the scene of the offence, Police dogs were brought and the smell of the hunter was given to the dog. He has further stated that many people had gathered at the place and the dog went towards the people and pounced on the accused after which the accused was caught by the Police. In our view, no comment is required on this so-called circumstance, because all the significance of this aspect is lost when we see that the accused was already under suspicion and it is not the case of the prosecution that the accused was one of the group of people who had gathered there and the police dog pounced upon him. In other words. the accused was known to be the person under the cloud and, moreover, it is an admitted as well as evident position, that the hunter as well as the stick found on the spot were handled by the accused while he was accompanying the deceased from Dharwad on his way to Goa. Hence this particular incident of dog-tracking has no significance in this case at all. 13. Hence this particular incident of dog-tracking has no significance in this case at all. 13. The learned trial Judge has also relied upon the peripheral cir-cumstances, such as arrest of the accused and attachment of his clothes with blood stains and reco-very of articles of wooden danda, cash, bucket, under Section 27 of the Indian Evidence Act, at the instance of the accused, coupled with the Chemical Analyser’s certificates and Post-mortem examination report. 14. We hold that these other circumstances are of secondary significance when it is seen that the evidence “last seen together”. of the accused and the deceased is not reliable and conclusive. 15. It is trite law that when the evidence against an accused person, particularly when he is charged with a grave offence like murder, if it consists of only circumstances and not direct oral evidence, it must be qualitatively such that on every reasonable hypothesis the conclu-sion, must be that the accused is guilty; not fantastic possibilities, nor freak inferences, but rational deduc-tions which reasonable minds make from the probative form of facts and circumstances. In other words, in a case resting on circumstantial evi-dence, the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilty of the accused. Again those circumstances should be of conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one propo-sed to be proved. There must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. 16. In the present case before us the evidence led by the prosecution and relied upon by the learned trial Judge, at the most would succeed in creating grave doubt against the role played by the accused in the entire incident. However such doubt howso-ever strong, cannot take the place of positive proof and, therefore, in our considered view, the evidence on record would not be sufficient to saddle the accused person with criminal liability with which he is charged. Consequently, we have no option, but to set-aside the judgment of the learned additional Sessions Judge and acquit the accused. Hence the following Order: The Appeal is hereby allowed. Consequently, we have no option, but to set-aside the judgment of the learned additional Sessions Judge and acquit the accused. Hence the following Order: The Appeal is hereby allowed. The Judgment and Order of convic-tion and sentence passed by the Additional Sessions Judge, South Goa, Margao dated 25th July, 2000, in Sessions Case No. 5 of 1998 for an offence punishable under Section 302 of the Indian Penal Code is set-aside and the appellant is acquitted of the charge levelled against him. He is in custody and shall be released forthwith. if not required in connec-tion with any other case. Appeal allowed.