JUDGMENT Khandeparker, J. - Both these appeals arise from the Judgment dated 29th June 1996 passed in Sessions Case No. 26 of 1995 by the Sessions Judge at Margoo whereby the appellant in both the appeals were convicted for offences punishable under Section 302 of I.P.C. and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000/- each and in default 6 months rigorous imprisonment and further convicted under Section 397 of I.P.C. and sentenced to undergo rigorous imprisonment for a period of 8 years. Both the sentences awarded under the impugned Judgment were ordered to run concurrently. For the sake of brevity the accused No. 1 in the Sessions Case No. 26 of 1995, who is the appellant in Criminal/Appeal No. 6 of 1997 is hereinafter referred to as the accused No. 1 and the accused No. 2 in the Sessions Case No. 26 of 1995, who is the appellant in Criminal Appeal No. 27 of 1996 is hereinafter referred to as the accused No. 2. Both the Appeals are heard together and are being disposed of by this common Judgment. 2. The prosecution case in brief is that the accused No. 2 had been staying in the neighbourhood of one Ludovina Crasto since about 4 months prior to the incident and she used to visit the house of the latter and had developed friendly relationship with her. On 24th January 1995 at about 1.00 p.m. while said Ludivina was at her house alongwith her son Simon and sister-in-law Eugina, the accused No. 2 approached her and she had some talk with her and thereafter Ludovina left the house alongwith the accused No. 2. While going out she informed Simon that she was going out with accused No. 2 in connection with the missing bangles of her sister Serafina, which had been lost on 26th October 1994. While going out Ludovina was wearing two gold bangles, two gold rings, one pair of earrings, one wristwatch, besides apink colour saree, brown colour blouse, chappals and was having a purse. The accused No. 2 and said Ludovina were seen by the niece of the latterby name Samantha near the New Era High School at Margoo at about 2.00 p.m. on the said day and at that time Ludovina had asked Samantha, her niece, to serve food to her uncle as she was going out. The accused No. 2 and said Ludovina were seen by the niece of the latterby name Samantha near the New Era High School at Margoo at about 2.00 p.m. on the said day and at that time Ludovina had asked Samantha, her niece, to serve food to her uncle as she was going out. At about 6.30 p.m. on the same day accused No. 2 alone returned to the house of Ludovina and informed Simon that his mother did not come along with her and had given Rs. 10/- in order to bring salt fish. Meanwhile in the afternoon of the same day one P.K. Rajan, a vegetable contractor for the Navy had feel Ludovina and the accused No. 2 walking on the road in between Zuari Nagar and the Airport at Vasco and on inquiry from Ludovina she had informed him that she had come to offer prayers at a cross at a distance of about 100 metres away. As Ludovina did not return till 9.00 a.m. on the next day. Simon lodged a missing report with Margoo Police Station. On 26th January 1995 one Pandurang Gawas from Consua informed Atonasio Carvalho, a teacher working in Our Lady of Succor High School and a Member of Panchayat, that a dead body was found lying in the cashew garden at Consua Said Atanasio on verifying the fact lodged a report of the Verna Police Station about the same and Police Inspector of Verna Police Station thereafter visited the site where the dead body was lying and thereupon registered the case and that followed the panchanama of scene of offence, inquest panchanama and further investigation in the matter. According to the prosecution case .the investigation revealed that both the accused in furtherance of common intention took Ludovina to the hillock at Consua on the road side Verna and Zuari and assaulted her with knife and then hit a boulder stone on her head and thereby caused her death and further both the accused stole away gold ornaments from the person of the deceased Ludovina, which were later on recovered on strength of information from the accused Nos. 1 and 2 and consequently both the accused were charged for offences under Section 302 and Section 397 read with Section 34 of I.P.C. 3. The prosecution examined 21 witnesses Including Investigating Officer, Panchas, Dr. Sapeco and others. 4. 1 and 2 and consequently both the accused were charged for offences under Section 302 and Section 397 read with Section 34 of I.P.C. 3. The prosecution examined 21 witnesses Including Investigating Officer, Panchas, Dr. Sapeco and others. 4. Shri S.M., Walwaikar, learned advocate appearing for the accused No. 2 in Criminal Appeal No. 27 of 1996, while assailing the impugned Judgment, submitted that the learned Sessions Judge has not analysed the evidence on record in proper perspective and has relied upon admissible evidence while convicting the accused No. 2 for the offence punishable under Section 302 and Section 397 of I.P.C.. Drawing our attention to the missing report, which was lodged by P.W. 3 Simon, son of deceased Ludovina, Advocate Walwaikar submitted that the same did not make any mention of the accused No. 2 even when Simon himself has stated that In the morning of 24th Ludovina had left the house alongwith the accused No. 2. Undisputedly the accused No. 2 had returned to the house alone during evening hours. Even on 25th January 1995 when the description of the missing person was given at about 9.00 p.m. of the said day, there was no reference absolutely made to the accused No. 2. He further submitted that for the purpose of identification of ornaments, the evidence does not disclose the made adopted for identifying the same. According to Shri Walwaikar, it was necessary for the Court to verify whether the police had mixed up the said ornaments with other ornaments in the same manner in which identification parade is conducted for the purpose of identification of the accused person. According to learned advocate, the evidence on record does not disclose that the said ornaments were worn by the deceased when she left the house. In any case the claim of P.W. 3 Simon that deceased was wearing ornaments at the time she left the house has not been corroborated by one other witness. In this respect he again draw our attention to the missing report, which is Exhibit P.W. 3/ A and submitted that when the same was lodged it was not informed to the police that the lady was wearing the same ornaments. In this respect he again draw our attention to the missing report, which is Exhibit P.W. 3/ A and submitted that when the same was lodged it was not informed to the police that the lady was wearing the same ornaments. According to the learned advocate, merely because the deceased was seen in company with the accused No.2 during noon hours, that by itself cannot be aground to hold that the deceased was murdered by the accused No. 2. In fact, according to Shri Walwalkar, the materials on record do not disclose that the accused No. 2 was seen in the company of the deceased anywhere near the scene of offence. The place of scene of offence happens to be at Con sua in jungle area. There is no evidence to show that anybody had seen the deceased In company of the accused No. 2 proceeding towards the said jungle. In this respect the testimony of P.W. 14 P.K. Rajan can be no assistance to the prosecution case because he has deposed of having seen the deceased alongwith one lady walking on the road between Zuari Nagar and Airport. at Vasco. It is not the case of the witness that he know the lady earlier nor It is the case of the prosecution that any Identification parade was held In respect of the accused No.2 and that the witness had identified the accused No. 2 as being the lady who was seen walking with the deceased. He further submitted that the prosecution has not made out any case for conviction of the accused No. 2 either under Section 302 or Section 397 of I.P.C. 5. Shri P.A. Kamat, learned advocate appearing for the accused No. 1 in Criminal Appeal No.6 of 1997, while adopting the arguments of? Shri Walwaikar, has further submitted that there is absolutely no evidence to show that the accused No. 1 was at any time seen alongwith the deceased Ludovina. Only evidence which is sought to be brought on record against the accused No. 1 is that he was seen in company with the accused No.2 at the time of sale of gold ornaments and that same ornaments Were being sold by the accused No. 1. According to the learned advocate, the testimony of P.W. 15 Ganeshyam Verlekar shows that the person who approached him was one Tony Fernandes. According to the learned advocate, the testimony of P.W. 15 Ganeshyam Verlekar shows that the person who approached him was one Tony Fernandes. In the absence of any evidence on record as regards the identification of the accused No. 1 by the witness in the identification parade, unless having prior acquaintance with the accused, the testimony of P.W. 15 cannot be believed as regards the Identification of the accused No. 1. There is absolutely no evidence to link the accused No. 1 with the alleged offence or crime. There has been no recovery made as regards any article from the accused No. 1 so as to link him with the said crime. 6. Shrl H.R. Shame, the learned Public Prosecutor, on the other hand, submitted that though there, is no eye witness to the incident of assault on deceased Ludovina, the circumstantial evidence brought on record by the prosecution clearly establish that both the accused were Involved in the murder of Ludovina and possessing and disposing gold ornaments stolen from the person of deceased. Taking us through the evidence of P. W. 3, the son of the deceased, alongwith P.W. 4 Xerophma, the daughter of the deceased, P.W. 5 Samanta, the niece of the deceased, P.W. 6 Euglna, the sister-in-law of the deceased, Dr. Sapeco P.W. 7, who had conducted the post-mortem on the body of the deceased, P.W. 9 Sajan Pillai, the panch, P.W. 14, the person who had seen the accused No. 2 and the deceased together at Zuarl Nagar and P.W. 15 and 16 the goldsmiths, who had purchased the ornaments from the accused, the learned Public Prosecutor submitted that the proper analysis of the evidence on record clearly disclose that both the accused in furthereance of common Intention caused murder of Ludovina and took away the gold ornaments from the person of the deceased Ludovina and sold the same to the witnesses P.Ws. 15, and 16. 7. Upon hearing the learned advocates for the parties and the learned Public Prosecutor and on going through the entire record. We have noted one important fact and that refers to the Identification of the dead body found at Consua. In this respect the case of the prosecution is that the dead body was first seen by one Pandurang Gawas and he Informed the same to Atanasio Carvalho and thereupon, P.I. of Verna Police Station visited, the scene of offence. We have noted one important fact and that refers to the Identification of the dead body found at Consua. In this respect the case of the prosecution is that the dead body was first seen by one Pandurang Gawas and he Informed the same to Atanasio Carvalho and thereupon, P.I. of Verna Police Station visited, the scene of offence. Curiously the prosecution has not examined Pandurang Gawas. However, Atanasio Carvalho has been examined as P. W. 1. The said witness in his deposition has stated before the Court that one Pandurang Gawas, who Is In possession of cashew trees at Consua Cortalim Informed him that a dead body was lying in the property. He thereupon lodged the complaint In the Pollee Station at Verna and accompanied by P.I. and two police constables he went to the hillock and saw a lady lying dead facing towards the West. The relevant part of his deposition reads as under: "On reaching the hill, we found that one lady was lying facing towards west and lying dead. Her head was smashed. She was wearing a saree of flower designs. There were bangles to her hand. The age of the deceased woman was 30 to 35 years. The head was / totally smashed. The deceased lady was beyond recognition. She could not be Identified because her head was smashed and disfigured." The same witness has been panch to the panchanama of scene of offence and Inquest panchanama. At this stage It Is pertinent to note that neither in the entire testimony before the Court nor In the Inquest panchanama there is any mention of Identification of the dead body. In fact the panchanama read that: "Under a cashew tree we were shown a body of a dead woman. The woman is lying on its back with hands and legs out strayed (outstretched). The woman is aged about 30 years and unknown." The next witness who is material In this regard Is Simon Crasto, son of Ludovlna, who was examined as P.W. 3. The woman is lying on its back with hands and legs out strayed (outstretched). The woman is aged about 30 years and unknown." The next witness who is material In this regard Is Simon Crasto, son of Ludovlna, who was examined as P.W. 3. He has made a categorical statement In his deposition that: "On the night of 26.1.1995, I came to know (hat my mother was killed." He has further state in his deposition that: "I had not given any photo of my mother to the police along with my report.” No doubt he has stated in his deposition that he can identify the articles which were seized in the course of investigation. However, he has nowhere stated in his deposition that he had identified the dead body which was found at Con sua as that of 'his mother Ludovina. Much to the contrary in his deposition he has stated that: "It was the police who told me on 26.1.1995, that my mother was killed by the accused No. 1 and 2." Thereafter we have the testimony of P.W. 21 Francisco Almedia, P.I. He has stated in his deposition that the body was sent for postmortem examination and on the next day the body was identified by the relatives of the deceased. He has, however, not disclosed the name or any identity of those relatives who had allegedly identified the body. In fact, the prosecution has not produced any witness before the Court to prove that the body was identified in the course of investigation. As already seen above the testimony of Anatasio discloses that the body which was located at Consua had a smashed head and she was wearing a saree with flower designs. The inquest panchanama also disclose the age of the body to be 30 years and the same to be unknown. The missing report lodged by P.W. 3 discloses the age of the missing person to be of 45 years. The post-mortem report discloses that the body which was subjected to post-mortem was identified by one Derrick Baptista. Even the charge-sheet which was filed in the Court did not disclose the name of any Derrick Baptista as the witness for the prosecution. The post-mortem report discloses that the body which was subjected to post-mortem was identified by one Derrick Baptista. Even the charge-sheet which was filed in the Court did not disclose the name of any Derrick Baptista as the witness for the prosecution. In the absence of clear evidence as regards the identification of the body which was found in the Consua property, it is not possible to hold that the same was of Ludovina, the mother of P.W. 3. in the absence of cogent evidence in this respect, it cannot be presumed that the body which was found at Consua was that of Ludovina. [f that is so, it goes without saying that the prosecution has failed to establish the link between the alleged murder of Ludovina and the acts on the part of the accused herein. It is most unfortunate that the investigating agency as well as the prosecution totally failed to prove such an important fact in a criminal case. [t was the duty of the Investigating Officer to see to it that the body was properly identified before proceeding with the investigation in the matter. [n fact it is an elementary thing is an investigation Officer should bear in mind. In this case such an identification of dead body was absolutely necessary more so because P.W. 1 has clearly deposed in his statement that the head on the body was totally smashed and the same was beyond recognition. He has categorically stated in his cross-examination that she could not be identified because her head was smashed and disfigured. Yet another disturbing factor in this respect is that the police did not care to take photographs of the dead body. P.W. 1 in this regard has also made a statement that the police had not taken photographs of the dead body. Being fully aware that the head of the dead body was totally smashed and it was beyond identification, it was the duty of Investigating agency to obtain photographs of the body at the scene of offence. The manner in which the inquest panchanama has been drawn also shoes that the investigating agency did not take precaution to take care of noting the details on the dead body and to find out the identification marks on her. The manner in which the inquest panchanama has been drawn also shoes that the investigating agency did not take precaution to take care of noting the details on the dead body and to find out the identification marks on her. In fact the entire investigation and the prosecution case discloses that there absolutely no efforts made by the investigating agency in this respect. Suprisingly this important factor was also overlooked by the trial Court. In fact in a case of murder, it is the duty of the State Government to entrust the investigation in such cases to a responsible and experienced person. It appears that the police officer, who was entrusted with the said case had absolutely no knowledge of the procedure to be followed for the investigation in a murder case. We do hope that in future the State Government will take necessary steps to see to it that investigation in such cases is entrusted to the responsible and experienced police officer. 8. That apart, as rightly submitted by learned advocates for the appellants in both the appeals, there is no convincing evidence produced by the prosecution so as to establish the involvement of the accused persons in the offence of assault on the body which was found in Consua property. In this respect the evidence of P.W. 14 Rajan regarding having seen the accused NO. 2 with the deceased Ludovina near Zuari Nagar is unbelievable. In fact his testimony discloses that he had seen deceased Ludovina with one more lady walking on the road between Zuari Nagar and Airport at Vasco. Indeed he has stated before the Court that he identified the accused No. 2 as the said lady who was seen walking alongwith the deceased Ludovina at. Zuari Nagar. However, it is not the case of the said witness and of the prosecution that witness Rajan knew the accused No. 2 on any earlier occasion. It is also not the case of the prosecution that there was any identification parade conducted of the said accused prior to the testimony of the said witness. The so called identification of the accused No. 2 in the course of his deposition is, therefore, unbelievable and cannot be relied upon to hold that accused No. 2 was the person who was seen, by witness Rajan, alongwith the deceased. The so called identification of the accused No. 2 in the course of his deposition is, therefore, unbelievable and cannot be relied upon to hold that accused No. 2 was the person who was seen, by witness Rajan, alongwith the deceased. Being so, there is no convincing evidence brought on record so as to link the accused with the alleged offence of murder of the person whose body was found at Consua. The accused No.2 cannot be held guilty of the said offence. 9. In the circumstances the accused are, therefore, entitled for acquittal from the charge of offence of murder of deceased Ludovina. 10. Coming to the charge of commission of robbery and causing death in the course of robbery, that is, the offence punishable under Section 397 read with Section 302 of I.P.C., it is seen that P. W. 15 had deposed before the Court that both the accused had approached him and had sold to him a gold chain for a consideration of Rs. 5400/-. He has also identified the signature of the accused No. 1 on his receipt book. P.W, 16 has deposed that the accused No.2 sold him a gold ring for the consideration of Rs. 1240/-. Both these sales were effected on 24th January 1995. There has been no explanation forthcoming from either of the accused regarding the sale of gold ornaments by them to the said witnesses. Added to this both these ornaments have been identified by P.W. 6 Eugina Claco, the sister-in-law of the deceased Ludovina. Undisputedly Ludovina had not returned after she left the house on 24th January 1995. It is also clearly established by the evidence on record that both the accused were found in possession of some of the ornaments of Ludovina. The evidence in that respect is quite clear and convincing. 'This evidence on record is in no way sufficient to hold the accused guilty of the charge of robbery and causing death in the course of robbery which is otherwise punishable under Section 397 read with Section 302 of I.P.C. The Connivance between the accused in disposing of the stolen property in furtherance of common intention to gain therefrom is, however, clear from the evidence of P.Ws. 15 and 16 and, therefore, the evidence for the offence punishable under Section 411 read with Section 34 of I.P.C. is quite convincing. 11. 15 and 16 and, therefore, the evidence for the offence punishable under Section 411 read with Section 34 of I.P.C. is quite convincing. 11. In the result the appeals are liable to be partly allowed and the conviction under Section 302 as well as under Section 397 is liable to be quashed and set aside. However, both the accused are liable to be convicted under Section 411 read with Section 34 of I.P.C. 12. We, therefore, pass the following order: Both the appeals ate partly allowed. The impugned order convicting the accused under Section 302 as well as under Section 397 is hereby quashed and set aside. The appellants are convicted under Section 411 and upon hearing the advocates for the appellants and considering the fact that both the accused were found in possession of the stolen property from the body of Ludovina, who had not returned to her house since the time she left the house on 24th January 1995 and considering the manner in which the stolen property was sought to be disposed of for common gain, both the accused are sentenced to undergo rigorous imprisonment for 3 years and fine of Rs. 200/- each in default to undergo 3 months rigorous imprisonment to each of them. The period of the sentence shall be deemed to have commenced from 27th January 1995, the day from which the accused are informed to be in custody. Appeal allowed partly.