JUDGMENT : M.G. Giratkar, J. By way of present appeal, the appellant has assailed the judgment of conviction, awarded by Additional Sessions Judge, Bhandara for the offence punishable under Section 302 of the Indian Penal Code, dated 29th September, 2017, by which he is sentenced to suffer imprisonment for life and to pay a fine of Rs.3,000/, in default, further RI for five months. 2. The case of the prosecution against the appellant/accused, in short, is as under : The daughter of appellant namely Rohini was always ill. She was medically treated by doctor. But, she was not cured. Accused was known to the villagers about his black magic. Deceased scolded accused about playing black magic on his daughter. On that ground, there was quarrel between the deceased and the accused. Accused threatened to kill deceased. 3. On 02.07.2015, at about 05:30 p.m., deceased along with his sister Mangala and his wife returned from weekly market. Deceased parked his twowheeler in the courtyard. Deceased was proceeding from Vitthal Rukhmai temple. Mansaram Borkar and Ishwar Deshmukh were sitting near the temple. At about about 08:00 p.m., complainant-wife of deceased standing in her courtyard. That time, her husband was going from water canal road. Mansaram and Ishwar shouted as “fell down, fell down”. Complainant rushed to the spot of incident. Her husband was lying in a pool of blood. Accused was standing there having axe in his hand. He was staring towards the complainant. She shouted, people gathered there. Accused ran away from the spot of incident. 4. Incident was informed by Police Patil to the Police Station, Pauni. Police reached to the spot of incident. Complainant lodged report (Exh.9). Crime was registered against the accused vide FIR (Exh.10). Accused was arrested. Inquest panchnama was prepared. Dead body was sent for postmortem. Clothes of accused were seized. As per the confessional statement, accused shown the axe used in the crime. Seized property sent to Chemical Analyzer. After completing investigation, filed chargesheet before the JMFC, Pauni, who, in turn, committed the same to the Court of Session at Bhandara. 5. Learned trial Court framed charge at Exh.3. Same was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. The prosecution examined 14 witnesses. After hearing the prosecution and defence, trial Court convicted the accused as stated above. 6. 5. Learned trial Court framed charge at Exh.3. Same was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. The prosecution examined 14 witnesses. After hearing the prosecution and defence, trial Court convicted the accused as stated above. 6. Heard Shri Motwani, learned Counsel appearing on behalf of the appellant/accused. He has pointed out the evidence of PW Nos.1, 2, 3, 6 and 10. Learned Counsel has submitted that the trial Court has recorded its findings that PW Nos.1, 2 and 10 are not the eye witnesses of the incident. Trial Court has taken into consideration circumstantial evidence. Learned Counsel has pointed out that the circumstances relied by the trial Court are not proved and wrongly convicted the accused. Therefore, prayed to allow the appeal. 7. Heard, Ms. Jaipurkar, learned Additional Public Prosecutor appearing on behalf of the respondent/State. She has supported the impugned judgment. 8. The evidence of PW No.1 (Jayshree, wife of deceased) shows that her husband was going towards Vitthal Rukhmai temple. Accused came and assaulted deceased Rajesh by means of an axe. Mansaram and Ishwar shouted. She went running towards the deceased. Accused was moving around with axe and was staring at her. She shouted, people gathered there accused ran away. What she has stated incriminating against the accused is brought on record as a material omission. She has stated as under : “I have stated while lodging the report and while recording my statement that I kept the head of the deceased Rajesh on my lap. I have stated while lodging the report and while recording my statement that at that time the accused was moving around us possessing the axe and was staring at me. I cannot assign any reason as to why the same are not mentioned in my report as well as in my statement.” 9. PW No.2 (Mangala) has stated in her evidence that Ishwar came to her. She immediately went to the spot of incident. She saw complainant besides deceased Rajesh. There was injury on his head. Accused was standing there possessing axe. Material omission is brought on record. She has stated as under : “I have not stated while recording my statement that the accused was standing there possessing the axe. She immediately went to the spot of incident. She saw complainant besides deceased Rajesh. There was injury on his head. Accused was standing there possessing axe. Material omission is brought on record. She has stated as under : “I have not stated while recording my statement that the accused was standing there possessing the axe. I have not stated while recording my statement that I shouted for help and thereafter, the accused ran away.” 10. PW No.3 (Sheshrao) has stated that he saw the accused possessing an axe in his right hand stained with blood. He heard the accused murmuring that he has killed Rajesh like a goat. This material incriminating evidence is an omission. He has stated in para 3 of his crossexamination as under : “I have stated to the police while recording my statement that I heard the accused murmuring that he has killed the deceased Rajesh like a goat. I have stated to the police while recording my statement that then I saw the axe in his hand which was stained with blood. I have stated to the police while recording my statement that after some time I went home, took my bicycle and went in front of the Vitthal Rukhmai temple. I cannot assign any reason as to why the said facts are not mentioned in my statement.” He has denied the portion marked “A” of his statement. 11. PW No.10 (Ishwar), who, as per the prosecution was the eye witness, but not supported the prosecution case. 12. Trial Court recorded its findings that PW Nos.1, 2 and 10 are not the eye witnesses of incident. Learned trial Court relied on the following circumstances, namely : (i) Presence of accused on the spot of incident. (ii) Motive. (iii) Recovery of axe at the instance of accused. (iv) CA report etc. 13. It is pertinent to note that the presence of accused is not duly proved by the prosecution. PW Nos.1, 2, 3 have stated in their examination-in-chief about the presence of accused. But material omissions brought on record. Those omissions are proved by the Investigating Officer (PW14). 14. In view of the material omissions in the evidence of PW Nos.1, 2 and 3, presence of accused is not duly proved by the prosecution. 15. Motive stated by PW Nos.1 and 6 is contradictory. But material omissions brought on record. Those omissions are proved by the Investigating Officer (PW14). 14. In view of the material omissions in the evidence of PW Nos.1, 2 and 3, presence of accused is not duly proved by the prosecution. 15. Motive stated by PW Nos.1 and 6 is contradictory. PW No.1 has stated that there was quarrel between the deceased and accused on the ground that accused played black magic; whereas PW No.6 has stated in his evidence that there was quarrel on account of construction of drain. This material contradictory evidence shows that the motive as alleged has relied by the prosecution is not duly proved. 16. Recovery of axe at the instance of accused is not duly proved, because as per the memorandum panchnama (Exh.28), it was started at about 05:00 p.m. and concluded at about 05:35 p.m. Thereafter they proceeded along with the accused. Accused shown the axe and it was seized. Seizure panchnama (Exh.29) shows that it was started at about 05:35 p.m. and concluded at about 07:35 p.m. This material defect in respect of time shows that the recovery is not faithful because the spot where the accused concealed axe was about 17 kms from Police Station, Pauni. This fact is clear from the FIR (Exh.10). Moreover, evidence of panch witness (PW No.5 Devidas) shows that when he reached to Police Station, Police Inspector Gite told him that they have to go to Bramhi. When he reached to Police Station, preparation of memorandum was going on. This itself shows that the confessional statement was already recorded. This witness was not present at the time of confessional statement (Exh.28). Police Inspector Gite was already knowing the place where the accused concealed the axe. Seizure of axe at the instance of accused is not proved as per the requirement of Section 27 of the Indian Evidence Act. Therefore, recovery of axe is not duly proved by the prosecution. 17. Learned trial Court relied on the CA report which shows that blood group of deceased was found on the clothes of accused. It is pertinent to note that though blood group of deceased was found on the handle of the axe and clothes of the accused, it cannot be a circumstance to rope the accused for the alleged offence. It is doubtful because axe was not sealed when it was seized as per seizure panchnama (Exh.29). It is pertinent to note that though blood group of deceased was found on the handle of the axe and clothes of the accused, it cannot be a circumstance to rope the accused for the alleged offence. It is doubtful because axe was not sealed when it was seized as per seizure panchnama (Exh.29). Clothes of accused were also not seized as per seizure panchnama. Possibility cannot be ruled out of sprinkling of blood of deceased on the clothes of accused and handle of axe. Therefore, this circumstance cannot be a circumstance incriminating against the accused. 18. As per the evidence of PW No.1 and other witnesses, there was dark and nobody could see the spot of incident. Police Patil made arrangement of light when police reached there. This itself shows that none of the witnesses could see the accused on the spot of incident. Moreover, presence of accused itself is not proved by the prosecution. 19. PW No.10 who was eye witness, not supported the prosecution case. He has stated that complainant Jayshree shouted as “fell down, fell down”. Thereafter he went to call Mangala (PW3); whereas PW1 has stated that this witness shouted and thereafter she went there. This witness has specifically admitted in his crossexamination that there was dark at the time of incident. He and others have not seen as to who had committed murder of deceased Rajesh. Deceased Rajesh was his nephew. This witness is the nearest relative of deceased and complainant and, therefore, his evidence is very material. As per his evidence, due to darkness, nobody could see the incident. 20. As per the evidence of PW1, there are houses near the spot of incident, but none of the independent witness examined by the prosecution. 21. Learned trial Court wrongly recorded its findings holding that circumstances are proved against the accused. As discussed above, none of the circumstances is proved by the prosecution. The law on the point of circumstantial evidence is very clear as per the judgment of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sards .v. State of Maharashtra (reported in 1984 (4) SCC 116 ). As discussed above, none of the circumstances is proved by the prosecution. The law on the point of circumstantial evidence is very clear as per the judgment of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sards .v. State of Maharashtra (reported in 1984 (4) SCC 116 ). The Hon'ble Supreme Court has given five guidelines as under : (1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established, (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, (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. 22. The prosecution has filed to establish the presence of accused on the spot of incident. Recovery of axe is doubtful. Seizure panchnama of axe and clothes of accused does not show that those articles were sealed at the time of panchnama. Motive stated by PW Nos.1 and 6 are contradictory. None of the circumstance is proved by the prosecution. As per the guidelines given by the Apex Court, circumstances must be proved. Those circumstances must be conclusive in nature and it should point out the guilt of accused and none else. In the present case, none of the circumstances proved by the prosecution. Learned trial Court not considered evidence properly and wrongly convicted the appellant/accused. Hence, we are inclined to allow the appeal and proceed to pass the following order. ORDER : (i) Appeal is allowed. (ii) The appellant/accused is hereby acquitted of the offence punishable under Section 302 of the Indian Penal Code. (iii) Accused is in jail. He be set at liberty forthwith, if not required in any other crime or case. (iv) R and P be sent back to the trial Court.