Judgment R. C. CHAVAN, J. ( 1 ) THESE two appeals have been preferred by accused nos. 1 to 3 in Sessions Case No. 21 of 1989 before the Additional Sessions judge, Khamgaon challenging their conviction and the resultant sentence imposed upon them by the learned additional Sessions Judge. ( 2 ) FACTS which led to the prosecution of the appellants, along with one chandrakalabai who was acquitted by the learned Additional Sessions Judge are as under : ( 3 ) ACCUSED No. 1 Jaggu, appellant in Criminal Appeal No. 112/1995 was serving as an agricultural labourer with Narayan Kadale of village Hiwarkhed, district : Buldana. Narayan felt that instead of looking after Narayans work accused No,1 Jaggu was making money elsewhere. On the incidental afternoon narayan therefore, asked his son Subhash, who was examined as P. W. 3 at the trial, to go and check up. Subhash reported that Jaggu was not in their field but had gone to a place which was called as "banacha Nala". Narayan then left in search of Jaggu on bicycle at about 2. 00 P. M. but did not return home. ( 4 ) SHALIKRAM, who was examined as P. W. 6, claimed to have seen the victim going towards his field, where accused No. 1 Jaggu and accused No. 4 chandrakala were working. One Kashiram claimed to have seen at about 3. 00 p. m. accused No. 1 Jaggu assaulting Narayan with an axe at "banacha Nala". Dama, who was examined as P. W. 7, saw Jaggu with gunny bag, and other two accused accompanying him at about 10. 00 p. m. ( 5 ) DEAD body of Narayan was found tied in a gunny bag in a well. Missing report was already been given to the police. After the dead body was found further report was made to the police. The police performed inquest and sent the dead body for post mortem, arrested accused persons, seized incriminating articles, recorded statements of witnesses and on completion of investigation sent charge-sheet to the learned Judicial Magistrate First Class who committed the case to the Court of Sessions at Khamgaon. ( 6 ) THE learned Additional Sessions Judge charged 4 accused persons of the offences punishable under section 302 and 201 read with 34 of the Penal Code. They pleaded not guilty to the said charge and hence were put on trial. ( 6 ) THE learned Additional Sessions Judge charged 4 accused persons of the offences punishable under section 302 and 201 read with 34 of the Penal Code. They pleaded not guilty to the said charge and hence were put on trial. In its attempt to bring home the guilt of the accused the prosecution examined in all 11 witnesses. The defence seems to be that of denial. ( 7 ) UPON considering all prosecution evidence in the light of arguments advanced, the learned trial Judge held accused No. 1 Jaggu guilty of murder as well as causing disappearance of evidence and proceeded to convict and sentence him for the offences punishable under sections 302 and 201 of the Penal Code. He held accused Nos. 2 and 3 guilty of only offence punishable under section 201 read with 34 of the Penal Code and sentenced them to suffer R. 1. for one year and a fine of Rs. 250/- each. He acquitted them of the Offence punishable under section 302 read with 34 of the Penal Code and acquitted accused No. 4 chandrakalabai of all the offences charged. Aggrieved thereby accused Nos. 1 to 3 have preferred these two appeals. ( 8 ) WE have heard Shri Shrivastava, learned counsel for the appellants and shri Mirza, learned Additional Public Prosecutor for the State. ( 9 ) THE learned counsel for the appellants contended that the evidence on record is totally deficient to connect any of the accused persons to the offences charged. He submitted that the conclusions drawn by the learned trial Judge do not stand to scrutiny. The learned Addl. Public Prosecutor, on the other hand, submitted that the learned trial Judge rightly relied on the eyewitness account of p. W. 4 Kashiram which received circumstantial corroboration from the other evidence of record. Therefore, according to the learned Addl. Public Prosecutor the findings recorded by the learned trial Court do not call for any interference. ( 10 ) WITH the help of both the learned counsel, we have reappraised the entire evidence in order to ascertain whether the findings recorded by the learned trial judge are supported by the evidence tendered. It may be seen from the prosecution story that there was no previous enmity as such between Jaggu and deceased Narayan. ( 10 ) WITH the help of both the learned counsel, we have reappraised the entire evidence in order to ascertain whether the findings recorded by the learned trial judge are supported by the evidence tendered. It may be seen from the prosecution story that there was no previous enmity as such between Jaggu and deceased Narayan. The only cause that can be imagined for Jaggus attack on narayan is latters objecting to Jaggus rendering services to others at the cost of narayan. It seems to be the prosecution case, though not spelt out explicitly, that after son Subhash reported that Jaggu was not in the field, Narayan might have got worked up and hence left on bicycle in search of Jaggu. However, even if it is presumed that Narayan did come in search of Jaggu and might have been annoyed at Jaggus negligence in discharging his duties, it does not follow that jaggu had any grievance which would have led Jaggu to launch a brutal attack on narayan. Therefore, it is difficult to gather any motive for Jaggu to kill Narayan. The learned Addl. Public Prosecutor submitted that in a case resting on eyewitness account motive is irrelevant and therefore, the Court ought to have a look at other circumstances only to lend support to the ocular testimony. ( 11 ) THE learned A. P. P. drew our attention to the eyewitness account of p. W. 4 Kashiram. Kashiram stated that on 10. 03. 1989 one Waman Shingade had requested him to help in searching for Wamans mare and mule. Therefore, he and Waman searched for Wamans mare and mule upto 2. 30 p. m. While they were returning, at 3. 00 p. m. they heard cries from the side of "banacha Nala" and therefore, went to see as to who was raising cries. They found Narayan Kadale lying on ground struggling for his life with accused Jaggu standing with an axe in his hand. Jaggus wife also seen by them. They stated that they were frightened and therefore, went to village. They further claim that as Wamans niece was suffering from some ailment, both of them went to Navsari (presumably in guajrat) and returned only after 5-6 days and then disclosed about the incident to the police. Kashiram wants the Court to believe that after returning to the house at about 4. They further claim that as Wamans niece was suffering from some ailment, both of them went to Navsari (presumably in guajrat) and returned only after 5-6 days and then disclosed about the incident to the police. Kashiram wants the Court to believe that after returning to the house at about 4. 00 p. m. he immediately left for Khamgaon within half an hour and proceeded to Navsari from Khamgaon by Shegaon-Navsari bus at about 5. 00 p. m. as if Kashiram and Waman had already prepared themselves for a long bus journey. ( 12 ) IN cross-examination this witness admitted that he had faced criminal case, though he claimed that it was compromised. He was not categorical about the absence of any criminal record of Waman and stated that he did not know whether Waman faced any criminal case or not. He stated that Wamans niece was staying in Hiwarkhed itself. He claimed that he did not remember whether waman had received message about the requirement to go to Navsari. Suddenly instead of talking about operation of a niece the witness started talking about operation of a nephew and claimed that operation upon the nephew was already performed but they were still to go to Navsari to consult an expert. They caused an expert to examine the nephew on 11th. The Doctor at Navsari asked them to wait for 3-4 days and then they came back. ( 13 ) WAMAN himself was not examined by the prosecution. We could not see, from the record, any reason for non-examination of Waman. He would have been the best person to state as to why he, as well as Kashiram, both were required to go to Navsari all of a sudden after the incident, for treatment of nephew or niece, as the case may be. It is not clear from the evidence of kashiram as to why he was required to chaperon Waman to Navsari. Non examination of an important eyewitness like Waman would cast doubt about credibility of testimony of Kashiram, particularly because he disclosed about the incident to the police eight days after the incident. There is another reason for discarding the testimony of Kashiram. Non examination of an important eyewitness like Waman would cast doubt about credibility of testimony of Kashiram, particularly because he disclosed about the incident to the police eight days after the incident. There is another reason for discarding the testimony of Kashiram. If Kashiram and Waman could not find mare and mule, which they were searching for, and if there was no pressing need to go to Navsari, they would not have normally departed without searching for mare and mule. No person can allow his property to be left untraced for attending to something which was neither urgent nor time bound. Therefore, it seems to us that the story about Kashiram accompanying Waman to Navsari is a make believe version only to provide some lame excuses for non-disclosure of an important fact for eight days. ( 14 ) THIS being the state of eye witness, account, it would be necessary to find out whether the conviction recorded by the learned trial Judge can be supported by other circumstantial evidence. As already pointed out, the evidence about motive is extremely weak and infact, there is no motive worth name attributable to Jaggu who committed this ghastly act. P. W. 1 Vithoba has witnessed number of panchnamas, conducted in the course of investigation, including inquest at Exh. 39. It appears from the inquest panchanama that the pocket of victims clothing contained a sum of Rs. 1411. 85 ps. intact. The body had been found in a gunny bag. This gunny bag was seized vide panchnama at exh. 41. P. W. 2 Subhash, son of victim, started that during rainy season he had given the gunny bag to accused Jaggu as there was practice to give gunny bags to the agricultural labours during rainy season. He stated that he identified the gunny bag, as one given to the accused Jaggu. He had stated that he does not sell the gunny bags in his grocery shop. He claimed to have given the gunny bag 3-4 days prior to the incident, which took place in March, 1989. It is therefore, difficult to accept that Subhash would give gunny bag to Jaggu in the month of march when rainy season was minimum three months away. It seems that the story of giving gunny bag was evolved just to connect the accused with the crime. ( 15 ) THE learned Addl. It is therefore, difficult to accept that Subhash would give gunny bag to Jaggu in the month of march when rainy season was minimum three months away. It seems that the story of giving gunny bag was evolved just to connect the accused with the crime. ( 15 ) THE learned Addl. Public Prosecutor submitted that there is one more circumstance which connects the accused to the crime. P. W. No. 6 Shalikram owns an agricultural land in the precinct of village Hiwarkhed. He stated that jaggu was grazing cattle in the field of Shamrao on the incidental day. His field is near the field of "banacha Nala". He stated that Jaggu asked him whether he wished to give Jaggu a contract of removing cotton stems lying in the field after harvesting. Shalikram claims to have given such work to Jaggu for wages of rs. 125/ -. On 10. 03. 1989 around 1. 00 P. M. he went to the field and found that jaggus wife and Jaggu were executing work which had been entrusted to them. Jaggus children were playing nearby, an axe was also lying there and Narayans bullocks were grazing in the field. He left his field at about 2. 00 p. m. While coming back he met Narayan, who was proceeding on a bicycle. On Narayans query about his bullocks, Shalikram told Narayan that his bullocks were grazing in Shalikrams field. Narayan then proceeded towards Shalikrams field. ( 16 ) THE learned A. P. P. submits that this evidence would show that Narayan had proceeded towards the field where Jaggu was working and where an axe was also lying. Therefore, according to the learned A. P. P. this evidence is akin to the victim and the accused having been last seen together. We are afraid that such a conclusion cannot be drawn. The cross-examination of Shalikram shows that he had met Narayan at a distance of about 4-5 furlongs from his agricultural land. Therefore, whether Narayan actually met Jaggu or not is the matter of conjecture. Nobody had actually seen Narayan and Jaggu together. (17 ) THE learned A. P. P. next submitted that P. W. Dama had seen the accused persons carrying a gunny bag with them at about 10. 00 p. m. on the incidental night. Therefore, whether Narayan actually met Jaggu or not is the matter of conjecture. Nobody had actually seen Narayan and Jaggu together. (17 ) THE learned A. P. P. next submitted that P. W. Dama had seen the accused persons carrying a gunny bag with them at about 10. 00 p. m. on the incidental night. He stated that he was working as a Watchman in the garden and heard voice from cart track at about 10. 00 p. m. He then put on the torch and saw three accused persons, with Jaggu carrying a gunny bag in his arm pit. He claims to have asked Jaggu as to where he was going at that odd hours and Jaggu told him that he was searching for Narayans bullocks. He denied the suggestion that the road in question was about 400 to 500 feet from the orange garden where he was working. Mercifully he was not made to identify the gunny bag which had been seized by the police. Since P. W. 3 Subhash states that he does not remember if Jaggu was at their house up to late night, it may be inferred that jaggu was in all probability at the house of Subhash and Subhash was merely avoiding to tell a lie. This would rule out Damas seeing Jaggu at 10. 00 p. m. . ( 18 ) IN tune with the story of P. W. 3 Subhash of giving gunny bags to servants in rainy season, P. W. 8 Parashram talked of the heavy rain fall on the incidental night in the month of March. He stated that at about 4. 00 p. m. he had stopped near a tree by the side of the cart track because of heavy rains. He saw jaggu, his wife and children going towards the village. He asked Jaggu and his wife to come under the tree as it was raining heavily. Accordingly Jaggu and his wife came under the tree. He stated that Jaggu and others were frightened and on his asking about the cause Jaggus wife stated having seen a Cobra in "banacha nala". He claims to have seen Jaggu holding an axe in his hand. He stated that without waiting for rain to stop Jaggu and his wife left for village. The witness is nephew of deceased Narayan. He stated that Jaggu and others were frightened and on his asking about the cause Jaggus wife stated having seen a Cobra in "banacha nala". He claims to have seen Jaggu holding an axe in his hand. He stated that without waiting for rain to stop Jaggu and his wife left for village. The witness is nephew of deceased Narayan. ( 19 ) THE learned counsel for the appellants submitted that while P. W. I vithoba, panch at the seizure of the axe, at the instance of accused Jaggu vide exh. 45, stated that the handle of the axe was stained with blood. The report from forensic Science Laboratory at Exh. 74 shows that the blade of axe had stains of blood. It is indeed interesting that even after P. W. 8 made heavy down pour of rain on the axe which Jaggu was carrying, still blade of the axe was continued to have blood stains. ( 20 ) THE other witnesses examined are, P. W. 5 Dr. Choudhari, who proved notes of post mortem examination at Exh. 55, which show blows by axe on the neck. P. W. 9 Atmaram, Revenue Inspector, who drew a sketch of the spot, P. W. 10 pandurang who claimed to have gone in search of Narayana and found a gunny bag containing dead body of Narayan in the well, and the Investigating Officer p. S. I. Pande as P. W. 11. The evidence about recovery of an axe as also about recovery of cap and handkerchief of the deceased at the instance of Jaggu is hard to believe. It is not clear as to why the accused who had allegedly dumped the body of Narayan in gunny bag and thrown it in the well, would hide cap and handkerchief under some stones or carry the axe in hand and then hide the axe in his own house, only to facilitate recovery by police later. ( 21 ) THE learned counsel for the appellants submitted that the whole story, put up by the prosecution witnesses gets debunked from the evidence of victims son Subhash himself. Subhash admitted that Jaggu had returned to his house in the evening. On being asked whether Jaggu had seen Narayan, Jaggu told that he had not met Narayan. ( 21 ) THE learned counsel for the appellants submitted that the whole story, put up by the prosecution witnesses gets debunked from the evidence of victims son Subhash himself. Subhash admitted that Jaggu had returned to his house in the evening. On being asked whether Jaggu had seen Narayan, Jaggu told that he had not met Narayan. The witness stated that he did not remember if accused jaggu was in their house during whole night as there was function in their family next day. He admitted that after completing agricultural operations Jaggu used to work at their house. If Jaggu was indeed guilty or involved in the murder of narayan it is inconceivable that he would come to the victims house as usual in the evening. This conduct is totally inconsistent with the complicity of the accused in the incident. ( 22 ) WE find, on the analysis of the prosecution evidence, that it is extremely unsafe to accept the account of P. W. 4 Kashiram about the manner in which the incident occurred. On the other hand, there is reason enough to infer that Kashiram is a got up witness. Inexplicable non-examination of Waman, another potential eyewitness, also is enigmatic and indicative of story of murder by Jaggu being cooked up. As for circumstantial evidence, we may observe that the prosecution has not established each circumstance unimpeachably. Even these half heartedly tendered incriminating circumstances do not complete the chain un-mistakingly pointing to the guilt of the appellants. The motive is extremely weak. The story about gunny bag is unbelievable, not only because the season in which it was given, but also because of the attempt to show that the accused was seen with the gunny bag by P. W. 7 Dama. By making it rain P. W. 8 parashram not only washed all stains of blood on the axe allegedly with Jaggu, but also the credibility of the entire prosecution case, which otherwise had been built up with unusual clock like precision with witnesses deposing the exact timings and sequence of events. ( 23 ) THEREFORE, notwithstanding the fervent contentions of the learned a. P. P. we find that the evidence in its entirety is inadequate to point to guilt of the accused No. 1 Jaggu. As far as the accused Nos. ( 23 ) THEREFORE, notwithstanding the fervent contentions of the learned a. P. P. we find that the evidence in its entirety is inadequate to point to guilt of the accused No. 1 Jaggu. As far as the accused Nos. 2 and 3 appellants in criminal appeal No. 75 of 1995, only evidence is that of P. W. 7 Dama who saw them along with accused No. 1 on the incidental night. As we do not propose to believe Dama, there is no evidence to indicate their complicity. In the result we find that the learned Additional Sessions Judge could not have convicted the appellants on the basis of this weak and contrived evidence. We, therefore, allow both the appeals and set aside conviction of the appellant Jaggu Jagdeo Gavai for the offences punishable under sections 302 and 201 read with 34 of Indian Penal Code and that appellants Dinkar Jagdeo Gavai and Bhimrao Jagdeo Gavai of the offence punishable under section 201 read with 34 of Indian Penal Code and acquit them of all the offences charged. We also set aside the sentences inflicted. The appellants are on bail. Their bail bonds shall stand cancelled. Fine if any paid by appellants be refunded. Appeals allowed.