JUDGMENT B.R. Gavai, J. 1. By this appeal, the appellant has challenged the order of conviction for the offence punishable under section 302 of Indian Penal Code and sentence to suffer rigorous imprisonment for life and to pay fine of Rs.500/- and also conviction under sections 323 and 506 of I.P.C. and sentence to suffer rigorous imprisonment for six months. 2. It is the case of the prosecution that the deceased had strained relations with his daughter in law and was staying with the complainant & his keep. It is further case of the prosecution that on 18th February 2003 when the deceased and the complainant were sitting in front of their room, accused started beating one lady. It is further case of the prosecution that the complainant intervened and he was also abused and assaulted by the accused. It is further case of the prosecution that thereafter the deceased- Dagdu came to intervene and, as such, accused assaulted the deceased on his head & forehead by wooden log. It is further case of the prosecution that after the assault Dagdu fell down in an unconscious condition. Thereafter the complainant went to the police station and narrated the incident and came back along with police constable. The deceased was taken to the Sassoon Hospital where he was declared dead. On the basis of the complaint lodged by the complainant, F.I.R. came to be registered. The appellant was arrested on 19th February 2003. During investigation on 22nd February 2003, the weapon alleged to have been used by the appellant came to be seized on the memorandum under section 27 of the Evidence Act. At the conclusion of the trial, learned trial Court found that the prosecution has proved the case beyond reasonable doubt and, as such, convicted and sentenced the appellant- accused as aforesaid. 3. Mr. Khamkar, learned counsel appearing for the appellant submits that there is no credible evidence so as to establish the complicity of the appellant beyond the reasonable doubt. He submits that the alleged recovery is from the open space. He submits that the C.A. Report is inconclusive. He further submits that the evidence of the sole eye witness is not trustworthy so as to base the conviction only on it. He further submits that the investigating officer has also not been examined. He submits that the alleged recovery is from the open space. He submits that the C.A. Report is inconclusive. He further submits that the evidence of the sole eye witness is not trustworthy so as to base the conviction only on it. He further submits that the investigating officer has also not been examined. He submits that the defence evidence which has come on record in the statement of D.W.1 and D.W.2 is a possible version and the learned trial court has not considered the same in its proper perspective. He, therefore, submits that in totality of the circumstances the conviction recorded is not sustainable. 4. Mrs.Shinde, learned A.P.P., on the contrary, submits that the evidence of P.W.1 along with recovery of blood stained clothes and the weapon which is recovered under memorandum under section 27 of the Evidence Act are sufficient to bring home the guilt of the accused. She, therefore, submits that no interference is warranted so far as the order of conviction is concerned. 5. We have perused the evidence on record. The main incriminating material against the appellant is the evidence of P.W.1- Gani Hasan Shaikh who has stated that the accused was beating one lady and pressing her to vacate the room. The said lady frightened and ran away. Thereafter the accused assaulted the complainant and started beating him. He stated that the accused beat him by stone and fist blows. He has further stated that thereafter the deceased- Dagdu intervened and the accused assaulted deceased- Dagdu with a piece of wood on his head and forehead. Due to this the deceased fell down in an unconscious condition. The conduct of this witness itself appears to be unnatural. When a person falls down and become unconscious after the assault, normally, the conduct of the human being would have been to shift the injured person to the hospital and, more particularly, when the complainant claims to be a friend of the deceased. The alleged recovery of weapon used in the crime i.e. a piece of wood is from shrubs near the public road. It can, thus, be seen that the alleged recovery is from the public place as such it cannot be said to be an incriminating material. In so far as blood stained clothes are concerned, C.A. report is inconclusive, as such, the same also cannot be an incriminating material. 6. It can, thus, be seen that the alleged recovery is from the public place as such it cannot be said to be an incriminating material. In so far as blood stained clothes are concerned, C.A. report is inconclusive, as such, the same also cannot be an incriminating material. 6. Apart from the above, the prosecution story is full of flaws. The lady who is said to be the cause of the incident in question and who was initially assaulted by the accused has not been examined by the prosecution. The keep of the present complainant, namely, Sheela, who is also said to be present at the time of incident, has also not been examined by the prosecution. The alleged incident has taken place in the slum area where people are residing in close proximity with each other. None of the independent witnesses has been examined by the prosecution. On the contrary, the appellant has examined two defence witnesses. D.W.1-Gajra Lanjare whose evidence is at Exh.40, has clearly stated in his evidence that on the date of incident a quarrel took place between the deceased- Dagdu and Gani, the complainant on account of money received on retirement. He has stated that first Dagdu beat Gani by stone and then Gani Shaikh assaulted Dagdu by stick, as a result of which, he fell down. It is stated that after deceased fell down the complainant ran away from the spot and thereafter the police came on the spot. Though this witness has been cross-examined by the prosecution nothing damaging has come on record. On the contrary, it has come on record that the statement of the said witnesses was recorded by the police. Another defence witness is D.W.2-Harishchandra whose evidence is at Exh.42. He also has stated that quarrel took place on 18th February 2003. He has stated that he took Dagdu to Sassoon Hospital. He has further stated that when he was taking the deceased to the hospital by rickshaw, the deceased told him that there was a quarrel between him and Gani on account of money. Though he was also cross-examined, nothing damaging has come in his cross-examination. It, thus, appears that though the statements of these witnesses were recorded by the police, the prosecution withheld these material witnesses. Not only this, but to clear the anomalies in the prosecution case the investigating officer has also not been examined. Though he was also cross-examined, nothing damaging has come in his cross-examination. It, thus, appears that though the statements of these witnesses were recorded by the police, the prosecution withheld these material witnesses. Not only this, but to clear the anomalies in the prosecution case the investigating officer has also not been examined. The conduct of the complainant leaving the injured unconscious friend on the spot and first going to police station coupled with the evidence of the defence witnesses, makes the defence version possible. In any case, as discussed hereinabove, the prosecution has failed to prove the case beyond the reasonable doubt. As such, appeal succeeds. Hence following order: Appeal is allowed. The judgment and order of conviction and sentence dated 31st August 2004 is quashed as set aside. The appellant is directed to be set at liberty forthwith, if not required in any other case.