JUDGMENT - PALSHIKAR V.G., J.:—Being aggrieved by the judgment and order of conviction passed on 13-7-1999 by the Additional Sessions Judge, Pune in Sessions Case No. 408 of 1998 convicting the accused under section 302 of I.P.C. and sentencing him to suffer R.I. for life, the appellant has filed this appeal on the ground mentioned in the memo of appeal as also verbally canvassed by the learned Counsel appearing on behalf of the accused/appellant. 2.With the assistance of the learned Counsel for the defence and the learned Prosecutor we have scrutinised the evidence and have reappreciated the evidence on record. 3.The prosecution story as emerges from the reappreciation of the evidence stated briefly is that the accused and his wife were both working as labourers and making their livelihood. They were last seen together by their employer on 5th May, 1998 and thereafter on 6th May, 1998 a dead body was found floating in a water tank near the construction site. Enquiries revealed that it was the dead body of the wife of the accused and therefore accused was arrested and on investigation prosecuted under section 302 of I.P.C. 4.The prosecution has examined 9 witnesses to prove its case, that the accused is the person who committed murder of his wife and the learned trial Judge on appreciation of this evidence came to the conclusion of guilt and convicted the accused as aforesaid. It is against this order of conviction that the present appeal is lodged on behalf of the appellant. 5.P.W. 1 Digambar is the employer of the accused and the deceased, who saw them together on 5th May, 1998. He has very categorically stated that on 5-5-1998 the accused and his wife had come to him and on that day in the evening he paid them the labour charges of four days and then they went away. He states that the accused and the deceased left his land between 5 and 5.30 in the evening. He then goes to say that on 6th May, 1998 the accused and his wife did not report for work. This witness is therefore on firm on his statement that he saw both of them in the evening between 5 and 5.30 on 5-5-1998. 6.P.W. 2 Janardhan speaks of previous experience and says that sometimes the accused used to harass his wife the deceased, for money. His evidence is inconsequential. This witness is therefore on firm on his statement that he saw both of them in the evening between 5 and 5.30 on 5-5-1998. 6.P.W. 2 Janardhan speaks of previous experience and says that sometimes the accused used to harass his wife the deceased, for money. His evidence is inconsequential. 7.P.W. 3 Vilas is the person who discovered the dead body floating in the water tank near the construction site. The body was found in a naked condition and the clothes were duly piled up by the side of the tank. 8.P.W. 4 Balshiram is a panch witness who prepared panchanama. He proved the same, P.W. 5 is the father of the victim, and he has stated that his daughter knew swimming and therefore cannot be drowned in such a small tank. He claims during his deposition that probably the accused has murdered his wife by falsely alleging her co-habitation and required her to remove all the clothes. He has also identified those clothes as belonging to his daughter. P.W. 6 is the person who informed P.W. 5 about the death. 9.P.W. 7 is Dr. Sumedh who performed autopsy and has stated that he performed the autopsy or post mortem on 6th May, 1998 between 2 and 3 p.m. In his testimony he gives the cause of death as drowning due to axphyxia. He has noticed only one external injury on the dead body. He found no internal injury and then he states very categorically that the death of the said lady might have occurred approximately between 36 to 46 hours before the post mortem examination. According to doctor therefore the murder has taken place or the death is caused between 36 to 46 hours of the post mortem examination. Roughly calculated 36 hours would mean 2 a.m. on 4th May, 1998 and 46 hours would mean 4 p.m. on 3rd May, 1998. If this testimony of doctor is to be accepted, it is obvious that the accused could not have murdered the victim because on 5th May, 1998 they were seen together by the employer P.W. 1. If this is the factual position, then either P.W. 1 is wrong when he says that he has last seen them on 5th May, 1998 or the doctor is wrong when he says that death has caused 36 to 46 hours prior thereto. If this is the factual position, then either P.W. 1 is wrong when he says that he has last seen them on 5th May, 1998 or the doctor is wrong when he says that death has caused 36 to 46 hours prior thereto. 10.We see no reason why the doctor would say a lie. Therefore there is no trustworthy evidence on record on the basis of which it can be said that the accused and the victim were last seen together. There is no other evidence whatever to connect the accused with the death. The only injury found on the person of the victim was peeled skin of 2 to 3 cms. There is no other external injury. The accused has stated in his 313 Cri.P.C. examination that he gave money to his wife on 5th May, 1998 and thereafter she never returned. There is no evidence of any rape. Consequently the cause of death or drowning is not known. The prosecution has also not explained why or how the victim was found in a naked condition in the water tank. If it is a case of suicide the person who committed suicide would not remove the clothes and there is no case of murder and no murderer would take away the clothes and keep them there. It can be therefore a case of murder and attempted to show it as suicide. As aforesaid there is no evidence to support this surmise. No conviction can be ordered on sustained on the basis of such surmises. In the absence of any other cogent evidence, we find it extremely difficult to maintain the order passed by the trial Court convicting the accused as aforesaid. For a total lack of tangible evidence pointing towards the accused, we set aside the order of conviction and in the result the appeal succeeds and is allowed. The judgment and order of conviction and sentence is set aside. The accused is in jail. He be released forthwith if not required in any other case. 11.Office is directed to prepare and despatch necessary writs as expeditiously as possible. Appeal allowed. -----