Judgment :- Smt. S.S. Jadhav, J. 1. The Appellant herein is convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer R.I. for life and to pay fine of Rs. 1000/-i.d. to suffer R.I. For 2 years in Sessions Case No. 196 of 1991 by Sessions Judge, Pune by Judgment and Order dated 10th September, 1991. 2. Being aggrieved by the said Judgment, the Appellant herein has preferred the present Criminal Appeal. By an Order dated 20th January, 1991, the substantive sentence imposed upon the Appellant was suspended by this Court. However, since the Appellant had chosen to remain absent, warrant was issued for obtaining presence of the Appellant at the final hearing of the Appeal. The Appellant was taken into custody on 24th July, 2012. Hence, the present Appeal is being heard as a jail Appeal. 3. Such of the facts which are necessary for the decision of this Appeal are as follows: (i) According to the prosecution, on 16th October, 1990, Subhash Bhoir had visited the house of Suresh Pawar at about 10 p.m.. At about 10.30 p.m. Rambhau Kalatkar, who was working as his accountant came to the house of Suresh Pawar and informed Subhash Bhoir that a quarrel was going on the road and a crowd had gathered. Subhash Bhoir went to the spot which was in front of the Vishwakarma Furniture Mart. He saw one person who was lying in injured condition. The said person was unconscious and his clothes were bloodstained. The Appellant Chandrakant, Raju Kate and Dinesh Gavade were present and Subhash has alleged that he saw the Accused armed with sword-stick and that he was washing the blade of the sword-stick at the water tap. Subhash Bhoir noticed that the Accused Chandrakant was under the influence of alcohol and therefore, did not question him. Subhash Bhoir then took the sword stick from the hands of the Accused and retained it with him. Thereafter, Raju Kate, Dinesh Gavade, Vilas Kadu and the Accused Chandrakant took the injured to Lokmanya Hospital at Chinchwad. Subhash followed them on his motor cycle. At the hospital, the injured was declared dead. The identity of the deceased was disclosed to Subhash by the Appellant/Accused. According to Subhash, the Accused disclosed to him that he was on cross terms with the deceased and therefore, he had assaulted him. Subhash followed them on his motor cycle. At the hospital, the injured was declared dead. The identity of the deceased was disclosed to Subhash by the Appellant/Accused. According to Subhash, the Accused disclosed to him that he was on cross terms with the deceased and therefore, he had assaulted him. Subhash went to Chinchwad Police Station and set the law into motion. He lodged the First Information Report which is at Exh. 11. At the same time, he handed over the sword-stick to the police and the same was attached under a panchanama at Exh. 18. The Accused was arrested within few hours and the arrest panchanama was drawn in the police station at about 3 p.m. Crime No. 558 of 1990 was registered at Chinchwad Police Station against the Accused for offence punishable under Section 302 of Indian Penal Code. After completion of investigation, chargesheet was filed on 15th January, 1991. The case was committed to the Court of Sessions and registered as Sessions Case No. 196 of 1991. (ii) The prosecution examined six witnesses to bring home the guilt to the accused. P.W. 1 Subhash Bhoir is the star witness. According to him, on 16th October, 1990, he learnt from Raju Kalatkar about a quarrel going on in front of Vishwakarma Furniture Mart. He went to the spot. He saw a person lying on the road in an injured condition. The said injured has sustained injuries on his chest. The injured was unconscious. He saw the Accused Chandrakant, Raju Kate, Dinesh Gavade present in the crowd. The accused was holding the sword stick. P.W. 1 has further stated that he saw the accused washing the blade of the sword stick at the water tap. However, since he had perceived that the Accused was under the influence of the alcohol, he did not question him. At the request of the members of the crowd, the injured was taken to the hospital. At that time, P.W. 1 had taken the weapon from the Accused and had retained it with him. The Accused had accompanied the injured to Lokmanya Hospital at Chinchwad. The Medical Officer had declared the injured as dead and at that time, the P.W. 1 learnt that the name of the deceased was Pandhari Pandharkar of Akurdi, as disclosed by the Accused. The Accused had accompanied the injured to Lokmanya Hospital at Chinchwad. The Medical Officer had declared the injured as dead and at that time, the P.W. 1 learnt that the name of the deceased was Pandhari Pandharkar of Akurdi, as disclosed by the Accused. According to P.W. 1, the Accused had disclosed to him that on earlier occasion he was assaulted by the deceased and therefore, he also assaulted him and caused the injuries. He then lodged the First Information Report which is at Exh. 11. It is pertinent to note that on the said FIR, the time of reducing the same into writing has not been recorded. We have perused the records and proceedings and we do not find a copy of the FIR in the proforma contemplated under Section 154 of Cr. P.C. and therefore, the time of registration of crime can be ascertained only from the recitals in the remand yadi and it appears that the crime was registered at 11.55 p..m. (iii) P.W. 1 has further stated that he had then handed over the sword stick to the police at the time of lodging the FIR. However, he has volunteered that the sword stick which he had handed over to the police as a weapon of assault was 5 inches longer than the weapon which was shown to him in the court. (iv) P.W. 1 then accompanied the police to Lokmanya Hospital. The inquest panchanama at Exh. 7 was drawn in the hospital between 12 mid-night and 1 a.m. The P.W. 1 then produced the Accused before the police in police chowky at Chinchwad on the same night. Arrest panchanama was drawn at 3 a.m.. P.W. 1 has further stated that when he had reached the spot of incident, he had noticed that the Accused was caught hold by Raju Kate and Dinesh Gavade, who are prosecution witnesses. In same breath, P.W. 1 has stated that he had asked the Accused about the incident and Accused had confessed before them that he was the author of the injuries sustained by the injured. P.W. 1 has then identified the Article 2 sword stick to be the same which he had handed over to the police at the time of lodging of FIR. (v) It is elicited in the cross-examination that there is a water tap connection at a distance of 25 ft. P.W. 1 has then identified the Article 2 sword stick to be the same which he had handed over to the police at the time of lodging of FIR. (v) It is elicited in the cross-examination that there is a water tap connection at a distance of 25 ft. towards north of the alleged place of incident. At the spot of the incident there was a crowd of 100-150 persons. P.W. 1 has admitted in the cross-examination that Dinesh Gavade was having sheath of sword stick, which he handed over to the P.W. 1 subsequently. It is further admitted by P.W. 1 in the cross-examination that while proceeding to Lokmanya Hospital, the Accused was holding the injured in the auto rickshaw. P.W. 1 has further admitted in the cross-examination that the deceased belongs to the lineage of P.W. 1. He has further admitted that his father and the uncle of the deceased are corporators of Pimpri Chinchwad Municipal Corporation and they both belong to the same political party. He has also deposed before the Court that Dinesh Gavade was also under the influence of alcohol when he was first seen by P.W. 1. According to him, the distance between Lokmanya Hospital and Chinchwad Police Station is about 3 km. 4. It is clear from the deposition of the P.W. 1 that he is unable to definitely tell the Court as to the place and time of disclosure/extra judicial confession made by the Accused to him. The inherent inconsistencies in the deposition of P.W. 1 are as follows: (a) The accused was washing the blade of sword when P.W. 1 had first noticed him. (b) The water tap is at a distance of 25 ft from the spot of incident. (c) Raju and Dinesh had caught hold of the accused when P.W. 1 reached the spot of incidence. (d) Immediate disclosure by the Accused to P.W. 1 at the spot is not established as P.W. 1 has stated that since he had noticed that the accused was under the influence of alcohol, he chose to remain silent. (e) P.W. 1 volunteered that the Accused had admitted his guilt in the hospital. (f) That P.W. 1 had carried the sword with him to the hospital and then back to the police station and handed over to the police at the time of lodging of FIR. (e) P.W. 1 volunteered that the Accused had admitted his guilt in the hospital. (f) That P.W. 1 had carried the sword with him to the hospital and then back to the police station and handed over to the police at the time of lodging of FIR. (g) Admittedly P.W. 1 is not an eye witness to the incident and therefore, the case rests upon the extra judicial confession allegedly made by the Accused to P.W. 1. The confession by itself is a weak piece of evidence. There is nothing on record to substantiate that the Accused could have reposed faith in P.W. 1, so as to disclose to him that he was the perpetrator. (h) When P.W. 1 has deposed on oath that since the accused was under the influence of alcohol, he had not questioned him about the incidence. In these circumstances, the alleged extra judicial confession would be shrouded with mystery and therefore cannot be considered. 5. The conduct of the accused can be considered under Section 8 of the Indian Evidence Act. The very fact that the Accused had accompanied the injured to the hospital and then had not fled away from the spot is sufficient to infer that the Accused was not nurturing a sense of guilt at that time. Thus, if a man accused of a crime is silent or is guilty of false evasive response, his conduct coupled with the statement in the nature of an admission can be said to be evidence against himself. However, in the present case, the evidence of having made an extra judicial confession is inconsistent to P.W. 1 coupled with the fact that the Accused had accompanied the injured and the complainant to the hospital and was available throughout would be inconsistent with the guilt of the accused. 6. The prosecution has examined P.W. 2 Dr. Sayyed Abdul Sami who had performed autopsy on the dead body of Pandhari Pandharkar and there is no doubt that the deceased had died of homicidal death. However, the prosecution has to prove that the Accused/Appellant is the perpetrator of the crime. 7. P.W. 3 Dinesh Gavade has not supported the prosecution. In fact, according to P.W. 1, Dinesh was holding the sheath of the sword-stick at the relevant time. 8. However, the prosecution has to prove that the Accused/Appellant is the perpetrator of the crime. 7. P.W. 3 Dinesh Gavade has not supported the prosecution. In fact, according to P.W. 1, Dinesh was holding the sheath of the sword-stick at the relevant time. 8. According to the prosecution, P.W. 4 Raju Kamble was also at the spot of incident when P.W. 1 reached on the spot. P.W. 4 Raju has also not supported the prosecution. P.W. 4 was cross-examined by the prosecution. In the cross-examination P.W. 4 has admitted as follows: “It is true that on the same night the accused was arrested by police in Lokmanya Hospital, Chinchwad.” It can be inferred from the said suggestion that the Accused was taken into custody before lodging of the report by the P.W. 1. Moreso, because the time of registration of crime has not been brought on record by the prosecution. It can further be inferred that the police had reached the hospital even before they had been to the hospital for drawing the inquest panchnama. 9. P.W. 5 Ashok Joshi is panch for seizure of weapon. The seizure is at Exh. 18. In any case, the weapon was seized at the instance of the complainant and no nexus can be established between offender and the weapon of offence. According to the version of P.W.1, the seized weapon shown to him in the court was not the one he handed over to the police. 10. P.W. 6 Eknath Patil is not the Investigating Officer of the crime in question. However, he was acquainted with the signature of Shri Patil who was the Investigating Officer and has therefore, deposed before the Court on the basis of the chargesheet available in the court which was filed by PSI Patil. P.W. 6 would therefore, be unable to prove the omission and contradiction of the witnesses. The case of the prosecution that P.W. 3 and 4 are eye witnesses cannot be considered as the evidence of P.W.1 would show that they had caught hold of the accused at that time and moreover, Dinesh was holding the sheath of the sword-stick. P.W. 6 has deposed before the Court that although summons was served on Ramdas Kalatkar, he did not remain present in the court. The prosecution has not demonstrated before the Court the efforts made by them to secure presence of Ramdas Kalatkar. 11. P.W. 6 has deposed before the Court that although summons was served on Ramdas Kalatkar, he did not remain present in the court. The prosecution has not demonstrated before the Court the efforts made by them to secure presence of Ramdas Kalatkar. 11. The learned APP has submitted that the very fact that the Accused was present in the crowd and was armed with a blood stained sword-stick is sufficient to hold that he is the perpetrator of the crime. We cannot be oblivious of the fact that P.W. 3 and 4 were also present on the spot and were associated with the Accused. 12. The learned APP has further submitted that the Accused had made an extra judicial confession to P.W. 1 and that the Accused was acquainted with P.W. 1 and therefore had disclosed it to him. However, as we have observed earlier, according to P.W. 1, the Accused was under the influence of alcohol, P.W. 1 has not established beyond reasonable doubt the spot or the time when the Accused made the extra judicial confession to him. The learned Counsel appearing for the Appellant submits that the very fact that the Accused was under the influence of alcohol is sufficient to infer that the said disclosure was not voluntary. Since the evidence of P.W. 1 is not a sterling testimony, we need not consider as to whether the extra judicial confession was voluntary or was insensible. Hence, the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. 13. For all the afore-mentioned reasons, the Criminal Appeal deserves to be allowed. The conviction and sentence recorded by the Sessions Judge, Pune in Sessions Case No. 196 of 1991 is quashed and set aside. The Appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. The Appellant be released forthwith, if not required in any other offence. Fine amount, if paid, be refunded to the Appellant/Accused.