JUDGMENT : M.G. Giratkar, J. 1. The appellant has assailed the Judgment of Additional Sessions Judge, Nagpur, dt.29.9.2017 in Sessions Trial No.397 of 2015, by which he is convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000/in default to suffer rigorous imprisonment for six months. 2. The case of prosecution against the appellant can be summarised as under : On 25th June, 2015, there was a house warming ceremony (Vastu Shanti) at the house of Amol Dhoke, resident of Borkhedi. At about 7.30 p.m., Vinayak Ramaji Kannake (PW1) was requested by Vishnu Bansod to come for Vastu Shanti. Thereafetr, Vinayak Kannake (PW1) proceeded on his motor cycle. Near water tank of village Tarsi. deceased Pawan Tankse met him. On inquiry, he showed his readiness to come to attend the said function. 3. Vinayak and deceased Pawan went to village Borkhedi at about 7.30 p.m. They met Amol Dhoke, Vishnu Bansod and Prakash Kangale. As per say of Vishnu Bansod, they went for consuming liquor at liquor den. Accused Rahul Fransis came there. There was exchange of words between deceased Pawan and Rahul. Ankush tried to convince them. Thereafter, they went to the house of Amol Dhoke. Ladies were taking dinner. They were chitchatting near temple of Shankar. 4. Deceased Pawan took his mobile and went at some distance. There was failure of electricity. Immediately after some time, electricity was restored. At that time, they saw Pawan falling on the ground. They rushed there. They saw that there was injury on the neck of Pawan. Vinayak Kanake and others saw the accused running from the spot of incident. Deceased Pawan died on the spot itself. Father of deceased namely Maruti Sukhdeo Tangse (PW3) came to know about the incident. Therefore, he went to village Borkhedi. From the discussions of people, he came to know that accused Rahul has killed his son. Therefore, he went to the Police Station and lodged report (Exh.15). 5. Before lodging report, police had already reached to the spot of incident. Spot panchanama was prepared. After registration of crime, Police Inspector Chavan investigated the crime. He arrested the accused in the night itself at about 00.30 a.m. Knife was seized from the accused from his person. Spot panchanama was prepared by A.P.I. Meshram. 5. Before lodging report, police had already reached to the spot of incident. Spot panchanama was prepared. After registration of crime, Police Inspector Chavan investigated the crime. He arrested the accused in the night itself at about 00.30 a.m. Knife was seized from the accused from his person. Spot panchanama was prepared by A.P.I. Meshram. Dead body was sent for post mortem. Statement of witnesses were recorded. After complete investigation, charge sheet came to be filed in the Court of Judicial Magistrate, First Class, who, in turn committed the case to the Court of Sessions for trial. 6. The trial Court framed charge at Exh.5. Same was read over and explained to the accused. He pleaded not guilty and claimed to be tried. Defence appears to be of total denial and false implication. Prosecution examined ten witnesses. At the conclusion of the trial, the appellant came to be convicted as stated above. 7. Heard Mr.C.R.Thakur, learned Counsel for the appellant. He has pointed out evidence of Vinayak Kannake (PW-1) and Prakash Kangali (PW-2) and submitted that they have not seen the accused while causing injury to the deceased. Their evidence show that they saw the accused near the spot of incident. Vinayak Kannake (PW-1) and Prakash Kangali (PW2) were the friends of deceased. But they did not make any attempt to chase the accused. Their evidence is not reliable. Vinayak (PW-1) has stated in his examination-in-chief that he saw the accused having knife in his hand But he did not identify the knife before the Court. On the other hand, he has stated in his cross-examination that he had not seen the knife. 8. Learned Counsel for the appellant has pointed out evidence of Prakash (PW-2). There is material omission brought on record in his cross-examination. Learned Counsel has submitted that investigation is doubtful. Knife was seized from the person of accused. This itself is not reliable. Other evidence are not useful to prosecution. Learned Counsel has submitted that prosecution has failed to prove the guilt of accused beyond reasonable doubt. 9. Heard Mr.J.Y.Ghurde, learned A.P.P. for the respondent/State. He has supported the impugned Judgment. Learned A.P.P. has submitted that the evidence of Vinayak (PW1) and Prakash (PW2) are sufficient to convict the accused. 10. Evidence of Vinayak (PW1) and Prakash (PW2) show that they have not seen accused causing injury to deceased. 9. Heard Mr.J.Y.Ghurde, learned A.P.P. for the respondent/State. He has supported the impugned Judgment. Learned A.P.P. has submitted that the evidence of Vinayak (PW1) and Prakash (PW2) are sufficient to convict the accused. 10. Evidence of Vinayak (PW1) and Prakash (PW2) show that they have not seen accused causing injury to deceased. Therefore, they cannot be said to be eye witnesses of the incident. Case of prosecution is based on circumstantial evidence. Prosecution has relied on the following circumstances : (a) Presence of accused near the spot of incident. (b) Recovery of weapon from the accused. (c) C.A. Report. 11. Now it is well settled law that each and every circumstance should be proved by prosecution and those circumstances shall be of conclusive nature which points out guilt towards the accused and none else. In the case of Sharad Birdichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116 , Hon'ble Supreme Court has given following guidelines : “153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence. ” 12. It could thus be clearly seen that Their Lordships have held that there is not only grammatical distinction between “may” and “must”, but also a legal distinction. It has been held that unless prosecution proves that it is the accused and the accused alone who has committed the crime, conviction under Section 302 of the Indian Penal Code would not be tenable. It has been held that all the probabilities except the one which is consistent with the guilt of the accused have to be ruled out. In the light of the guidelines laid down by the Hon'ble Apex Court, we have to examine the present case. 13. Vinayak (PW1) has stated in his evidence that he was invited by his friend Vishnu Bansod for house warming ceremony at village Borkhedi at the house of Amol Dhoke. At about 7.30 p.m. he started to go on his motor cycle to village Borkhedi. On the way, near water tank, deceased Pawan met him. On inquiry, he showed willingness to go with him for the function. They both went to village Borkhedi. They reached there at about 7.30 p.m. They met Amol Dhoke, Vishnu Bansod and Prakash Kangale. 14. He has submitted that, as per say of Vishnu, they went for consuming liquor at Liquor den. At that time, Rahul came there. At that time, exchange of words took place between Pawan and Rahul. Ankush tried to convince them. Thereafter, they went to the house of Amol for dinner. Ladies were taking dinner. Therefore, they were chitchatting near temple. Deceased Pawan took his mobile and went to some distance. There was failure of electricity. Immediately electricity was restored. At that time, they saw Pawan falling on the ground. Hence, they rushed there. Ankush tried to convince them. Thereafter, they went to the house of Amol for dinner. Ladies were taking dinner. Therefore, they were chitchatting near temple. Deceased Pawan took his mobile and went to some distance. There was failure of electricity. Immediately electricity was restored. At that time, they saw Pawan falling on the ground. Hence, they rushed there. They saw that there was injury on the neck of Pawan. They saw Rahul while running from the temple. He again stated that they saw Rahul while running from the side of Pawan. At that time, Rahul was holding knife. Pawan was dead. Villagers gathered there. Police arrived there. Thereafter, his statement was recorded by police. 15. In the cross-examination, Vinayak Kannake (PW1) Has admitted as under : “5. It is true when we reached there, that time I saw deceased was lying in the pool of blood. We have not taken deceased in the hospital. Villagers phoned to police. Police took me at Police Station for recording my statement. It is true, I had not seen the knife. On the date of incident my statement was recorded at Police Station. It is true, deceased Pawan had consumed liquor. It was at the spot when police arrived. Police arrived at the spot at about 8.30 to 8.45 p.m. 6. It is true, I was not knowing Rahul Fransis before incident. It is true, I was not called at Jail for identification parade. The distance from the spot where Pawan was lying and temple was about 30 ft. We not caught hold Rahul.” 16. Prakash Kangali (PW2) has stated in evidence in the line of Vinayak (PW1). He has stated about the incident that, at the time of incident, they were near the temple. The deceased took mobile from Vinayak and went at some distance. At that time, there was failure of electricity. Electricity supply was restored at about 8.30 p.m. At that time, they heard voice as 'somebody has fallen'. They found that Pawan was fallen on the ground and Fransis was standing near him withholding knife. They rushed there. Fransis ran away. Mob was gathered there. Due to fear, they left the spot. In the cross-examination, material omission is brought on record. He has stated as under : “6. It is true, Pawan also consumed liquor. They found that Pawan was fallen on the ground and Fransis was standing near him withholding knife. They rushed there. Fransis ran away. Mob was gathered there. Due to fear, they left the spot. In the cross-examination, material omission is brought on record. He has stated as under : “6. It is true, Pawan also consumed liquor. While giving statement to police I stated, Pawan was wearing black shirt and blue jean pant. So also I stated to the police that, Rahul was standing near Pawan. I cannot assign any reason as to why it is not mentioned in my statement. It is true, before incident I had not seen Rahul Fransis. Police not called me at Jail for identification parade after incident. I was not knowing police officer who recorded my statement. He also not knowing my name.” 17. Though Prakash (PW-2) has stated in his evidence that accused Rahul was standing near the deceased, but it is a material omission brought on record. Vinayak (PW-1) has stated in his evidence that he saw the accused standing by the side of accused Pawan holding knife in his hand. But, in his cross-examination, Pawan (PW-2) has admitted that he had not seen knife. Evidence of Vinayak (PW-1) and Prakash (PW-2) are not reliable. They are friends of deceased. Therefore, their natural conduct should have been to chase the accused and to catch hold of him etc., but they did not try to do so. 18. In the case of Gajanan s/o. Kisan Bawane vs. State of Maharashtra reported in 2017 ALL MR (Cri) 1545, the Division Bench of this Court has observed as under : “Conduct of said witnesses in not chasing the accused and not taking the deceased to hospital is extremely doubtful. Therefore, their evidence is not reliable. ” 19. In the present case, both Vinayak (PW1) and Prakash (PW2) were friends of deceased. They did not immediately take the deceased to the hospital. When they saw the accused near Pawan, they did not try to catch hold of him. Their evidence shows that the incident took place at the distance of 30 to 50 ft. from the spot where they were standing. If such type of incident would have taken place, then naturally they should have heard some quarrel between the deceased and accused. No such incident is stated by Vinayak (PW1) and Prakash (PW2). 20. Their evidence shows that the incident took place at the distance of 30 to 50 ft. from the spot where they were standing. If such type of incident would have taken place, then naturally they should have heard some quarrel between the deceased and accused. No such incident is stated by Vinayak (PW1) and Prakash (PW2). 20. Both Vinayak (PW1) and Prakash (PW2) have not immediately informed to police. Though Vinayak (PW1) has stated that he went to Police Station at the same time, yet their statements were recorded after 78 days i.e. on 1.8.2015. Hence, the evidence of Vinayak (PW1) that his statement was recorded on the very day is not reliable. The conduct of Vinayak (PW1) and Prakash (PW2) shows that their evidence is not reliable. 21. Other material witnesses, who were cited by the prosecution as eye witnesses, have not supported the prosecution. Vishnu Bansod (PW9) has turned hostile. He has denied the contents of Portion Marks A, B and C. Ankush (PW8) has also not supported the prosecution. He has denied Portion Marks 'A' and 'B' in their statements. 22. Prosecution has relied on the recovery of weapon from the accused. It is pertinent to note that the accused was arrested at about 00.30 a.m. Prosecution has shown seizure of knife at about 00.15 a.m. The incident took place on 26.6.2015, at about 8.30 p.m. It is not reliable that the accused kept knife with him till his arrest. Moreover, not a single panch witness, in whose presence knife was recovered, was examined by the prosecution. Recovery of weapon as per Seizure Panchanama (Exh.27) is doubtful. 23. It appears that prosecution has conducted investigation in a casual manner. Seizure Panchanama (Exh.29) shows seizure of clothes of accused. Time of seizure shows in between 7.00 to 7.15 p.m on 26.6.2015. It was signed by one Vinod and another panch, but name of panchas are shown as 1) Rajendra Punjabrao Ghate, 2) Murlidhar Ganpat Mahakalkar. Both these witnesses are not examined by the prosecution. From the face of Seizure Panchanama (Exh.29), it is clear that it is signed by one Vinod as panch, but his name is not written as a panch witness. 24. C.A. Report is not a substantive piece of evidence. Weapon which was seized from the accused was not sealed. Both these witnesses are not examined by the prosecution. From the face of Seizure Panchanama (Exh.29), it is clear that it is signed by one Vinod as panch, but his name is not written as a panch witness. 24. C.A. Report is not a substantive piece of evidence. Weapon which was seized from the accused was not sealed. C.A. Report shows that blood Group 'A' was detected of the blood present on the weapon and clothes. Blood group of blood of accused and deceased are of “A”. Therefore, it cannot be said that the blood group detected on the knife was only of the deceased. Possibility cannot be ruled out that blood group detected on the knife might be of accused. Moreover, the knife was not sealed at the time of seizure. 25. Division Bench of this Court in the case of Nilkanth s/o. Govindrao Rahmatkar vs. The State of Maharashtra reported in 2017 ALL MR (Cri) 234, this Court has observed that “ There are material omissions and contradictions in the testimonies of eye witnesses as regards spot and details of incident and no cogent and convincing material is there to establish involvement of the accused in the crime. Nonsealing of weapons recovered creates doubt about the blood stains found on it. C.A. Report is not significant. Prosecution has failed to prove guilt of the accused. Hence, conviction of appellant/accused u/s.302 of the Indian Penal Code be set aside.” 26. In the present case, prosecution has failed to establish material circumstances. Presence of accused as stated by Vinayak (PW-1) and Prakash (PW-2) is doubtful. They have stated that the deceased was taking at the distance of 30 ft. In such a situation, if there was any scuffle between the deceased and the accused, then they should have heard it. But they have not stated so. They have only stated that the accused was standing near the spot of incident having knife in his hand. Vinayak (PW1) has specifically admitted in his cross-examination that he had not seen knife in the hand of accused. Material omission about presence of accused is brought on record in the cross-examination of Prakash (PW-2). Therefore, presence of accused on the spot of incident is not duly proved by the prosecution. 27. Recovery of weapon is doubtful. Vinayak (PW1) has specifically admitted in his cross-examination that he had not seen knife in the hand of accused. Material omission about presence of accused is brought on record in the cross-examination of Prakash (PW-2). Therefore, presence of accused on the spot of incident is not duly proved by the prosecution. 27. Recovery of weapon is doubtful. Accused was arrested at about 00.30 a.m. Weapon was recovered from the accused at about 00.15 a.m. Both the panchas on the recovery panchanama are not examined by the prosecution. Clothes were shown to be seized from the accused on 26.4.2015 in between 7.00 to 7.15 p.m. as per Exh.29. The accused was arrested in the night itself. Exh.29 shows that clothes were seized in presence of Rajendra Ghate and Murlidhar Mahakalkar. But, in the panchanama, below the place of signature of panchas name of Vinod (as a panch witness) is written. Prosecution has not examined about this material defects. Therefore, recovery of weapon, clothes etc. are doubtful. 28. Prosecution has relied on C.A. Report. Seizure of weapon itself is doubtful and therefore, C.A. Report cannot be taken as a gospel truth. Moreover, blood group of accused and deceased are of the same group. Therefore, it cannot be said that blood detected on the weapon was of the deceased only. 29. Prosecution has failed to prove any of the circumstances against the appellant. As per the guidelines given by Hon'ble Apex Court in case of Sharad Sarda (supra), prosecution has to prove each and every circumstance against the accused beyond any doubt. All the circumstances must be proved, which should be of conclusive nature and which points out guilt towards the accused and none else. In the present case, circumstances relied by the prosecution are not proved. Learned trial Court has wrongly taken the circumstances as proved and wrongly convicted the appellant. Hence, we are inclined to allow the appeal and proceed to pass the following order. //ORDER// The appeal is allowed. The impugned Judgment dt.29.9.2017 in Sessions Case No.397 of 2015 is hereby quashed and set aside. The appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. He is in jail. He be set at liberty forthwith if not required in any other crime or case. Fine about, if paid, be refunded to the appellant. The record and proceedings be sent back to the trial Court.