C.L. PANGARKAR, J.:- Appellant Ramsewak was convicted by 2nd Ad-hoc Additional Sessions Judge, Nagpur for having committed an offence under Section 302 of I.P.C. and was sentenced to undergo life imprisonment. 2. The facts shorn of details are as under: One Channulal lives with his family which includes his wife, three sons and daughter-in-law in Mankapur area of Nagpur. The name of his eldest son is Vijay, the deceased. His other two sons are Deocharan and Ramsewak - the appellant. His eldest son Vijay the deceased did not marry since he was required to shoulder the responsibility of the maintenance of his family. He was a vegetable vendor. He used to be therefore out of house for quite some time. On the date of the incident Vijay came back home around 4 p.m. He has had his meals. After taking his dinner, Vijay went to bed on the terrace of the house. Decocharan also came back home. He also took his dinner and all of them went to bed on the night of 25-4-1991. While the members of the family were sleeping, Deocharan heard a thumping sound on the terrace. He, therefore, woke up his father Channulal and went to the terrace. Deocharan found Vijay in a pool of blood and was dead. Deocharan started weeping. Other members also started weeping and they shouted loudly. Channulal then went to Police Station and lodged a report that his son was killed by an unknown person after beating Vijay with some heavy object. The Police came to the spot. They had drawn the panchanama of the spot, seized the clothes on the person of the deceased as well as on the person of appellant Ramsewak. It is the case of the prosecution that the appellant Ramsewak while in custody made a statement that he would discover the dumbel with which he had done Vijay to death. All the articles which were seized were sent to Chemical Analyser and upon completion of investigation, charge-sheet was filed against the accused. 3. The learned Sessions Judge after recording the evidence found that the death of deceased was homicidal and Ramsewak committed the murder. Having held so, he proceeded to convict the accused and sentenced as stated above. Against this conviction, this appeal is preferred. 4. In fact it is not disputed that death of deceased was homicidal. Even otherwise, the evidence of Dr. Having held so, he proceeded to convict the accused and sentenced as stated above. Against this conviction, this appeal is preferred. 4. In fact it is not disputed that death of deceased was homicidal. Even otherwise, the evidence of Dr. Amitkumar Pande is sufficient to hold that the deceased has died a violent death inasmuch as the following injuries were found on the person of the deceased :- (i) Lacerated wound over left parietal region, transversely placed of size 11 x 4 cms. bone deep with underlined bone fracture. (ii) Lacerated wound 1 cms. below injury no. 1 obliquely placed of size 6 cms x 2 cms x Bone deep. (iii) Lacerated wound over the tragus of left ear of size 1 x 1 x 1 Musclie deep. (iv) Swelling over the right temporal region and lateral side of right eye. 5. P.W.? Amitkumar Pande has stated that the injuries were ante mortem and were sufficient in the ordinary course of nature to cause his death. He also stated that an instrument like dumbel can cause such injuries. The post mortem report shows that the cause of death is injuries sustained by the deceased as are mentioned in column no.l? and 19. The learned Sessions Judge was, therefore, right in concluding that the death of deceased was homicidal. 6. There is no eye-witness and the prosecution case solely rests on the circumstantial evidence. There are in fact only three circumstances which the learned A.P.P. submitted are sufficient to bring home guilt to the appellant. The first is the conduct of the appellant in not going upstairs to see what had happened; the second quarrels between the appellant and the family members and the third is recovery of dumbel at the instance of the appellant. 7. P.W.1 Channulal, the father of the deceased, as well as the appellant, had lodged a report to the Police vide Exh.41. P.W.1 Channulal has deposed that on the date of incident, Vijay was sleeping on terrace and after midnight his younger son Deocharan woke him up saying that he had heard some noise on the terrace and he rushed there. He also states that Deocharan told him that Vijay was injured and then both of them went to the terrace with a lantern and found Vijay to be dead. This statement is corroborated by the contents of the first information report (Exh.41). He also states that Deocharan told him that Vijay was injured and then both of them went to the terrace with a lantern and found Vijay to be dead. This statement is corroborated by the contents of the first information report (Exh.41). These facts are even corroborated by the evidence ofP.W.3. Deocharan. In addition to that, P.W.3 Deocharan states that when he heard the sound, he thought that a thief had entered the house. He peeped through the door' and found one person standing near the door. He also states that he found appellant Ramsewak near the back side door and told him about what he saw on the terrace, but appellant instead of coming with him on the terrace went to the bathroom. 8. The other witness from the family is P.W.5 Mansa, the wife of Deocharan. She also corroborates the statement of having heard the noise on the terrace and having seen the appellant near the backside door. This is the only evidence. This evidence even if accepted in toto, does not go to suggest that any of these persons had seen the appellant actually committing the crime. This evidence only suggests that soon after hearing the noise, the appellant was seen near the backside door. Even if he was so seen, that does not lead us anywhere. It is to be seen from the evidence that there is staircase leading to the terrace and it appears from the map (Exh.15) that it is from outside the house. If staircase which leads to the terrace is from the outside, it is very clear that there was free access available and any stranger could go on the terrace. It is not shown by the prosecution that the said staircase was from inside the house and none else except the family members could have access to the terrace. The map as filed by the prosecution at Exh.15 in fact shows that it is from outside. Therefore, we cannot at this stage rule out the possibility of an unknown person having gone on the terrace and having committed the offence. In fact it may be mentioned here that the first information report (Exh.47) itself suggests that an unknown person had committed the crime. 9. It is also to be seen that there were more than two male members in the family besides the appellant viz. Deocharan and his father Channulal. In fact it may be mentioned here that the first information report (Exh.47) itself suggests that an unknown person had committed the crime. 9. It is also to be seen that there were more than two male members in the family besides the appellant viz. Deocharan and his father Channulal. It is, therefore, not that the appellant was the only person in the house so as to point the needle at him alone and none else. Simply because appellant was found near the door and did not go on the terrace, would not by itself be sufficient to show that appellant did the said act. Much addo was made by the learned A.P.P. about this conduct of the appellant in not going to the terrace. There is an explanation to this conduct of the appellant. The contents of the first information report (Exh.41) suggests that the appellant is mentally not very sound. In the first information report it is so mentioned that due to mental illness the appellant sits idle in the house. May be because of this, that the appellant might not have gone on the terrace even though he was called there. Therefore, this circumstance by itself carries no weight. 10. It was suggested that the appellant used to quarrel frequently with the members of the family and he had once assaulted Vijay. In this regard, our attention was drawn to the statement of Deocharan that the appellant had beaten Vijay with an iron rod. From the said statement of Deocharan, it is clear that the said incident of beating Vijay took place 5-6 months ago. Apparently that could not be the cause for the appellant to do away with Vijay. In fact it may be mentioned that it was the appellant who had beaten Vijay. Therefore, if at all anybody was aggrieved, it was Vijay and not the appellant. This so-called assault by accused on Vijay does not go to suggest that the appellant has had any kind of motive to do away with Vijay. 11. The learned A.P.P. then submitted that the dumbel was recovered at the instance of the appellant and this is one of the circumstances which the Court should take into account. This so-called assault by accused on Vijay does not go to suggest that the appellant has had any kind of motive to do away with Vijay. 11. The learned A.P.P. then submitted that the dumbel was recovered at the instance of the appellant and this is one of the circumstances which the Court should take into account. P.W.4 Ghanshyam has deposed that the appellant was in custody and he made a statement that he had kept the dumbel under the table in a room where he used to sleep and that memorandum was prepared by the Police and then dumbel was seized by the police. In our view had the appellant committed the crime, he would not have kept the dumbel under the table in a room where he used to sleep. The fact that the dumbel was found at the place where the appellant used to sleep near the table suggests that dumbel was kept at the place where it ought to be always. Since the dumbel was found at the place accessible to all and where it ought to be, it cannot be said that the appellant had discovered the said ·instrument. Assuming for the sake of argument that the dumbel was seized at the instance of the appellant, one has to see whether this was the weapon which was used as a weapon of crime. In this regard, it may be mentioned that P.W.4 Ghanshyam states that when the dumbel was recovered he found blood stains as well as faecal on the dumbel. The C.A. report in this regard has been placed on record at Exh.62. It shows that no blood or faecal matter was at all found on the dumbel. In any case, therefore, this dumbel was not at all used in the commission of the offence. The discovery, if any, is of no consequence, as a result it cannot be said that it was the appellant alone who committed this crime. The learned Sessions Judge, therefore, committed an error in holding the appellant guilty of the offence under Section 302 of I.P.C. The appeal therefore, deserves to be allowed. The appeal is allowed. The order of conviction and the sentence imposed on the appellant by trial Court under section 302 of I.P.C. is set aside. The learned Sessions Judge, therefore, committed an error in holding the appellant guilty of the offence under Section 302 of I.P.C. The appeal therefore, deserves to be allowed. The appeal is allowed. The order of conviction and the sentence imposed on the appellant by trial Court under section 302 of I.P.C. is set aside. He stands acquitted of the offence punishable under Section 302 of I.P.C. He be set at liberty forthwith if not required in any other case. Appeal allowed.