JUDGMENT - PALSHIKAR V.G., J.:---Being aggrieved by the judgment and order of conviction and sentence passed on 6-7-1998 by Additional Sessions Judge, Greater Bombay in Sess. Case No. 217/96 the appellant named above has preferred this appeal on the grounds mentioned in the memo of appeal and as verbally canvassed by the learned Advocate appearing on behalf of the appellant before us. 2. With the assistance of the learned Counsel for the defence and the prosecution we have scrutinized the record and reappreciated the evidence. 3. The prosecution story as disclosed on reappreciation of evidence on record stated briefly is that on 10-10-1995 P.W. 1 Tukaram Kate who is Police Sub-Inspector was working at that time in Vakola Police Station. On 10-10-1995 while he was on duty he received a call around 11.15 in the morning informing the police that in Shivaji Chawl one room is closed and from the said room foul smell is coming. On receipt of this information PSI told his superior and went to spot and on reaching there he found that the room was locked from outside and foul smell was coming out. He therefore called for the nearest fire brigade station and called for assistance. Fire brigade people arrived, lock was broken open and when he entered the room he found dead body of a woman lying on the floor. According to the witness the body of the woman was decomposed. He made enquiries and came to know name of the woman as Puvana. His further enquiries revealed that the accused-appellant was staying with the woman till 7-10-1995. Investigation was conducted, accused was arrested. Prosecution examined as many as eight witnesses to prove its case and accepting the case of the prosecution learned Judge recorded finding of guilt and accordingly sentenced him to suffer imprisonment for life which sentence is impugned in this appeal. 4. P.W. 1 Tukaram Kate is the Police Officer who discovered the dead body and found it in decomposed state as according to him the accused was staying with the deceased upto 7-10-1995. He also executed inquest panchnama which shows no external marks of injury on the body since the body was decomposed. 5. P.W. 2, Shole Padiyachi is a gardener by occupation staying around Aarey Colony. He was asked as to whether he knows the accused. He says that he does not know him. He also executed inquest panchnama which shows no external marks of injury on the body since the body was decomposed. 5. P.W. 2, Shole Padiyachi is a gardener by occupation staying around Aarey Colony. He was asked as to whether he knows the accused. He says that he does not know him. His statement is not very clear. Later on he says that the accused started living with the deceased. He was not even cross- examined. His evidence is inconsequential. Then P.W. 3-Meena Sakhare who was staying in the same locality as the deceased states that on 7-10-1995 at about 11.30 she met the deceased and saw that the accused was present in the house on that day. According to her on 8-10-1995 the house of the deceased was locked and on 10th she says foul smell was coming out of the house. She also noticed police breaking open the door. The maximum that can be held proved from the evidence of this witness is she saw the deceased and the accused alive together on 7-10-1995. P.W. 4-Pungvan Sanuashi identifies the accused as the person who used to stay with the deceased, but states in her examination-in-chief that she does not know with whom the deceased was residing 15 days prior to her death. The evidence of this witness is of no consequence therefore. 6. P.W. 5-Dr. Baban Shinde conducted the post-mortem. He states that the post-mortem was conducted by him on 12-10-1995 between 12.50 to 1.25 p.m. He states in the Court that body was decomposed, foul smelling and greenish black in colour, eyes were protruding, there were no external ante- mortem injuries. On internal examination he found oblique fracture of occipital bone and therefore opined that the death was due to unnatural reasons. He is asked only one question in cross-examination which he answered in the affirmative. The question was whether injury mentioned in Column 19 can be accidental and the answer was "yes". Para 5 is liable to be noted verbatim : "5. Injury mentioned in Column 19 is sufficient to cause death, in ordinary nature. Death must have taken place 30 to 48 hrs. prior to 10-10-95 at 5 p.m. If the head is banged on hard and blunt object this injury can be possible." 48 hours prior to 10-10-1995 would be 8-10-1995. Injury mentioned in Column 19 is sufficient to cause death, in ordinary nature. Death must have taken place 30 to 48 hrs. prior to 10-10-95 at 5 p.m. If the head is banged on hard and blunt object this injury can be possible." 48 hours prior to 10-10-1995 would be 8-10-1995. According to doctor death could not have taken place prior to 8-10-1995, 5.00 p.m. It could have taken place within 36 hours also which would mean in the morning of 9-10-1995. It has come on record in the evidence of P.W. 3 where she categorically states that "or 8-10-1995 in the morning I noticed lock on her house." The body admittedly was found inside the house, the house was locked from outside and this was noticed on 8-10-1995 in the morning. According to the testimony of doctor death must have taken place between 36/48 hours as noted above. 48 hours would be 8-10-1995 at 5.00 p.m. If death has occurred earliest by that time and the lock was found on 8-10-1995 death could not have occurred on 7th or 8th. It could not have been caused by the accused because the body was inside. Recovery of key to that room is inconsequential for the reason that admittedly there were relationship between the accused and the deceased and he could have keys to the premises. Beyond this there is no evidence worth the quality requiring its acceptance unclinchingly. However even if we assume that the entire evidence is true it does not lead to a definite conclusion that merely because they were seen together on 7-10-1995 the accused caused her death on 8-10-1995 or thereafter. We see no reason why the evidence of the doctor be not believed. Cause of death is not certain. How the fracture was caused is not known. Doctor states that it can be caused by fall. P.W. 1 says that he noticed body lying on the floor. If the inquest panchnama of the body is seen, the condition of the body is described. It is stated that at some places flesh had been eaten away and bone was visible, no injury was found on the body externally and at some places skin had peeled off. The possibility of the death having been caused more than 48 hours of post-mortem also cannot be overruled. It is stated that at some places flesh had been eaten away and bone was visible, no injury was found on the body externally and at some places skin had peeled off. The possibility of the death having been caused more than 48 hours of post-mortem also cannot be overruled. There is no evidence brought by the prosecution to show what would be the state of body decomposed if death occurred 48 hours prior to its discovery. Whether skin can start peeling off, whether decomposed body would smell rotten in 48 hours. When such evidence is lacking the time of death cannot be ascertain with any certainty. Therefore merely because the accused was seen with the accused in the morning of 17-10-1995 it cannot be held conclusively that it the accused who committed murder. In such circumstantial set of evidence benefit of doubt must go to the accused. In the result appeal succeeds and is allowed. Accused be set at liberty forthwith if not otherwise required in any offence. Appeal allowed. ------