F.I. REBELLO, J.:- The appellant has preferred this appeal against the judgment of the learned Court of Sessions. Grater Mumbai in Sessions Case No.1134 of 2001 dated 21.11.2003 whereby the appellant 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.2,000/- and In default to suffer further R.J. for one year.

2. The case of the prosecution was that the accused and deceased were friends. There was a theft at the place where the appellant and deceased were working about 3.1/ 2 months prior to the incident. The deceased informed P.W. No.4 whose money was stolen that it was the accused who had stolen the money and on account of this, the accused had a grudge against the deceased and had threatened him. The incident occurred on 20.08.2001 on which day, according to prosecution, the appellant at about 6.00 a.m. hit a stone slab on the head of the deceased thereby causing his death. A complaint was lodged on 20.08.2001 by Shri. Ketan Bhatt, P.W. No.1 against an unknown person.

3. The eye-witness, if any is Pradip Mohan @ Bhuvelal Sahu, P.W. No.8 who according to prosecution was sleeping at the same place as deceased Rajesh. At about 6.00 a.m. on hearing a big noise, he got up and saw the accused Shashikant standing and then running away. He gave chase but could not catch the accused. When he came back to the place, he saw Rajesh (deceased) lying in a pool of blood and there was heavy bleeding from the head injury. A big and heavy stone was lying at the scene of the incident. As he was scared, he left the place and met his friend Anil and Sagar. He came to know that police were in search of him. One constable met him at C.P. tank. He went to the police station where he was interrogated and his statement was recorded. This witness therefore, is not an eyewitness 10 the actual incident but a witness who had seen the accused running away from the scene of offence after he heard the noise and got up.

4. The prosecution has tried to establish their case based on the following:

(a) last seen theory through the evidence of P.W. No.8 Pradeep Mohan @ Bhuvelal Sahu.

(b) extra-judicial confession through the evidence of P.W. No.3 and P.W. No.6.

(c) motive through evidence of P.W. No.4 and P.W. No.8 and seizure of blood stained cloths through the evidence of P.W.No.7.

At this stage itself, we may point out that the shirt and the pant were sent for the report of the C.A. being Item Nos.9 and 10. No blood was detected of them.

5. We therefore, first proceed to consider the evidence of P.W. No.8 and whether it can be relied for the theory of "last seen". According to P.W. No.8, he knew both the deceased and the accused as they were doing the same work and they used to sleep in the varandah of Garwadi Building which is adjacent to Hargovind Desai wadi. The length and width of the said varandah as per the spot panchanama shows that the varandah was 3.1/2 ft wide and length was about 21 ft 10 inch. According to this witness, on the previous night he and the deceased had gone to see a movie. After the movie was over, they had meals and come to C.P. tank and talked for some time with Phoolwala Raja. He then went to sleep at usual place and after some time Rajesh also slept. In the morning, he heard a big noise and that woke him up. He saw the accused running away. According to this witness himself, the accused and deceased used to sleep in the same place. After the purported incident of theft, it is not his case that the accused stopped sleeping at the place. The other aspect of the matter is that he got up at 6.00 a.m. It is not his case that he saw the deceased in a pool of blood and then chased the accused. His case is that he saw the accused running away and he run after him. It is 'in-explicable as to why when the witness was friend of the accused, because accused was running, he ran after the accused without knowing why he was running. The other aspe