P.R. BORKAR,J.: - The appellant has preferred this appeal being aggrieved by the order of conviction and sentence passed by the learned II Additional Sessions Judge, Beed in Sessions Case No. 108 of 1995 decided on 31.07.1997 whereby he convicted the appellant of committing offences punishable under Sections 302 and 201 of Indian Penal Code (IPC) and sentenced to suffer imprisonment for life and to pay fine of Rs.1000/- or in default to suffer rigorous imprisonment for six months for the offence punishable under Section 302 of IPC; and for the offence punishable under Section 201 of IPC he is sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.500/- in default to suffer rigorous imprisonment for three months. 2. Briefly stated facts giving rise to this case are as below:- Deceased Shivkanya was daughter of PW-2 Yamunabai Ambadas Choure. They were residents of village Khardewadi, Tal.Georai, Dist.Beed. Father of deceased Shivkanya was a sugar-cane labourer. He was working with Dagadu Yamgar. There was a gang of labourers which used to work for different factories and harvest sugar-cane. Thus Ambadas Choure and Shivkanya were working for Siddheshwar Sugar Factory. The appellant was also member of the same gang of labourers. The appellant developed illicit relations with Shivkanya who was 15 years old girl. Even after they came to Khardewadi, accused/appellant used to go and meet Shivkanya at her house when her parents were not at the house. 3. On 13.04.1994, at 08.00 a.m. dead body of Shivkanya was found floating in the well of one Sarjerao Kade of Khardewadi. Police Patil - PW-4 Babasaheb Waghmode was informed about it by Sarjerao Kade and therefore he went with Sarjerao to the Well and saw the dead body of Shivkanya Ambadas Choure. Her parents were informed. Police Patil Babasaheb Waghmode informed the Police. He gave report Exh.31. Thereafter, Police came to the spot. They took out the dead body and drew inquest panchanama. Thereafter, the Police drew spot panchanama. The dead body was sent for post-mortem. Dr. Urne (PW-10) performed post-mortem and found that it was a case of homicide. The death was caused by throttling. He gave certificate that the death was result of cardio respiratory failure due to asphyxia as a result of throttling. The post-mortem was performed on 14.04.1994 between 11.45 a.m. to 12.45 noon. 4. The dead body was sent for post-mortem. Dr. Urne (PW-10) performed post-mortem and found that it was a case of homicide. The death was caused by throttling. He gave certificate that the death was result of cardio respiratory failure due to asphyxia as a result of throttling. The post-mortem was performed on 14.04.1994 between 11.45 a.m. to 12.45 noon. 4. Thereafter, PW-2 Yamunabai lodged complaint with Police stating that the accused had committed murder of her daughter Shivkanya. It is alleged that on 12.04.1994 at about 10.00 a.m. deceased Shivkanya and her sister PW-3 Kashibai Choure had taken away she-goats for grazing. They had gone to the land of Rama Sutar. There the appellant came and pulled Shivkanya into a sunflower crop. Kashibai went back to her house and informed this to her grandmother who was old and unable to walk. At the advice of the grand mother, PW-3 Kashibai went and informed her mother about the incident of appellant forcibly taking deceased Shivkanya into sunflower crop in the land of Rama Sutar. At that time Yamunabai was returning from flour mill at Lonawala. Lonawala is a village at a distance of one mile from village Khardewadi. It is also prosecution case that Yamunabai came home and told her brother-in-law Vasishtha about the appellant taking away Shivkanya. Both of them went to the land of Rama Sutar, searched Shivkanya and since she was not found there, they came back. Thus, it is alleged that the appellant was last seen in the company of the deceased and he must have killed Shivkanya. 5. There is no dispute that Shivkanya died as a result of homicide. The spot panchanama (Exh.25) is proved by PW-1 Padmakar Muley. PW-4 Babasaheb Waghmode, who is Police Patil, stated that Sarjerao Kade had came to his house on 13.04.1994 and informed that the dead body of a girl was floating in his well. Then PW-4 Babasaheb Waghmode along with Sarjerao went to the Well and saw the dead body of Shivkanya floating. He called Kotwal to guard the body and went to Talwada Police Station and gave information - Exh.31. His evidence also shows that father and mother of Shivkanya, so also her uncle Vasishtha had met Police Patil before he gave report Exh.31 to police. The Police Patil stated that on earlier day he learnt that Shivkanya was missing. Evidence of Dr. His evidence also shows that father and mother of Shivkanya, so also her uncle Vasishtha had met Police Patil before he gave report Exh.31 to police. The Police Patil stated that on earlier day he learnt that Shivkanya was missing. Evidence of Dr. Urne at Exh.46 shows that he performed post mortem on 14.04.1994 between 11.45 a.m. to 12.45 noon. There were signs of decompositions. The tongue was outside mouth and the body was swollen. He also found fracture of hyoid bone and swelling over throat area. There were no signs of pregnancy. There was no food in the stomach. There was marginal discharge from vagina. The girl was not a virgin. He ultimately came to the conclusion that the death was due to cardio respiratory failure due to asphyxia as a result of throttling There is nothing in the cross-examination to disbelieve the version of the Doctor or his observations. There was one external injury near eye of the dead body. The inquest panchanama also supports the said findings. So, in the facts and circumstances of the case, it is proved that the death of Shivkanya was homicidal. 6. The main evidence which connects the appellant with the crime is of PW-2 Yamunabai and PW-3 Kashibai, who are respectively mother and sister of deceased Shivkanya. To some extent PW-7 Suman is also relevant. PW-7 Suman at Exh.40 stated that she was working as a sugar-cane labourer along with Ambadas and Shivkanya at Parner Sugar Factory. They worked there for 2-3 months. Thereafter, they went to Siddheshwar Sugar Factory at Solapur and they worked for one month. Initially, Suman stated that she was not aware of the relations between the appellant and deceased Shivkanya. She had not seen them sitting together or talking. She did not know if there was illicit relation between them. She had not seen them together. Then, she changed her version and stated that it happened that they did not like illicit relation of appellant and Shivkanya and therefore they left Siddheshwar Sugar Factory. It is brought in cross-examination that the appellant had three daughters. One daughter used to remain at his house. Two daughters and wife of the appellant used to remain with him. She had not seen any immoral acts of the appellant and deceased Shivkanya. It is brought in cross-examination that the appellant had three daughters. One daughter used to remain at his house. Two daughters and wife of the appellant used to remain with him. She had not seen any immoral acts of the appellant and deceased Shivkanya. She had not stated before Police that they left Siddheshwar Sugar Factory because of illicit relation between appellant and deceased Shivkanya. So, whatever she had stated is an improvement. The witness does not appear to be trustworthy. 7. PW-3 Kashibai is a witness who was 10 years of age when her statement was recorded on 18.06.1997. The incident had taken place on 12.04.1994, so she might be about seven years old. She stated that in absence of her parents, the appellant used to come to their house and sit and talk with Shivkanya. She had informed about it to her mother PW-2 Yamunabai and PW-2 Yamunabai had abused Shivkanya. She further stated that just prior to the incident on the day of Gudi-Padwa there was naming ceremony at the house of Narayan Warik. PW-3 and Shivkanya had attended the said naming ceremony. While they were returning home from the house of Narayan Warik, the appellant met them and he caught hand of deceased Shivkanya. However, Shivkanya snatched hand from the appellant and they came back. Shivkanya had told PW-3 Kashibai not to tell to her parents. Therefore, she did not tell anyone. PW-3 Kashibai further stated that on the day of incident at about 10=00 a.m. she and deceased Shivkanya had taken two she-goats to the field of Rama Sutar for grazing. At that time their mother had gone to a flour mill at village Lonawala. The appellant came to the field of Rama Sutar and caught hand of Shivkanya. The appellant closed her mouth and took her pulling into the crop of sunflower in the land of Rama Sutar. Thereafter, PW-3 Kashibai came shouting to her house and informed her grandmother. Her grand mother told her that she could not walk and therefore she should give the information to her mother and therefore PW-3 Kashibai was going towards Lonawala and on the way, she met her mother and informed her the incident. Thereafter, PW-3 Kashibai, PW-2 Yamunabai and Vasishtha the uncle of PW-3 Kashibai went in search of Shivkanya. they went to the field of Rama Sutar, but Shivkanya was not found. Thereafter, PW-3 Kashibai, PW-2 Yamunabai and Vasishtha the uncle of PW-3 Kashibai went in search of Shivkanya. they went to the field of Rama Sutar, but Shivkanya was not found. On that day her father had gone to sugar factory. On next day Vasishtha informed that the dead body of Shivkanya was found in the Well of Sarjerao Kade. 8. The evidence of PW-3 Kashibai is supported by PW-2 Yamunabai examined at Exh.27 and she stated that on the day of incident at about 10.00 a.m. Shivkanya and Kashibai had taken she-goats for grazing and she went the flour mill at Lonawala. Her daughter Kashibai came to Lonawala and informed her that the appellant had caught hand of deceased Shivkanya, pressed her mouth and took her to the field of Rama Sutar. Thereafter, PW-2 Yamunabai, PW-3 Kashibai and Vasishtha went in search of Shivkanya into field of Rama Sutar, but they could not find her. Therefore, they came back. On next day her brother-in-law Vasishtha came to her at about 10.00 a.m. and informed that the dead body of Shivkanya was floating in the well of Sarjerao Kade and therefore she went to see the dead body. She also stated that PW-7 Suman had told her that deceased Shivkanya and the appellant had love affair. She belongs to Dhangar community and the appellant belongs to Maratha community. The appellant had killed Shivkanya therefore, she lodged complaint Exh.28. 9. It is argued before us that the statements of PW-2 Yamunabai and PW-3 Kashibai are not reliable. In this case Vasishtha the uncle of deceased is not examined, though it is stated that he had also gone in search of Shivkanya. It is argued before us by learned APP that Vasishtha would have only repeated what was stated by PW-2 Yamunabai and PW-3 Kashibai in the Court. It is also argued before us that Yamunabai did not lodge complaint on 13.04.1994 when the dead body of Shivkanya was found floating in the Well. Our attention was drawn to the inquest panchanama Exh.20, wherein it is stated that while inquest panchanama was being drawn both PW-2 Yamunabai and her husband Ambadas were present. Similarly, in the spot panchanama Exh.25, it is stated that PW-2 Yamunabai and her husband Ambadas were present. Our attention was drawn to the inquest panchanama Exh.20, wherein it is stated that while inquest panchanama was being drawn both PW-2 Yamunabai and her husband Ambadas were present. Similarly, in the spot panchanama Exh.25, it is stated that PW-2 Yamunabai and her husband Ambadas were present. Yamunabai also admitted in her statement that they learnt about dead body of Shivkanya at about 10.00 a.m. and they went to the Well. The Police Patil Babasaheb Waghmode examined at Exh.30 has stated that before he lodged the report with Police on 13.04.1994, he had met father, mother and uncle of deceased Shivkanya. But, father or mother or uncle of Shivkanya had not disclosed to the Police Patil or Police on 13.04.1994 that Shivkanya was last seen in company of the appellant or the appellant had forcibly taken away Shivkanya on 12.04.1994. 10. Even though these persons knew that the appellant had taken away Shivkanya forcibly into the sunflower crop and even though they were aware of illicit relation between Shivkanya and the appellant, it is surprising that on 12.04.1994, nobody went to ask the appellant or members of his family about whereabouts of Shivkanya, though she had not returned home even after evening. Simply it is stated that PW-2 Yamunabai, PW-3 Kashibai and Vasishtha went to the land of Rama Sutar. Searched Shivkanya and came back. But, if PW-3 Kashibai had told PW-2 Yamunabai and her uncle Vasishtha that deceased Shivkanya was taken away by the appellant they would have ordinarily gone to the house of the appellant to question the appellant and members of his family. So, the conduct in not going and questioning the appellant is unnatural. 11. Moreover, in the report lodged by Police Patil Babasaheb Waghmode it is stated that Shivkanya had died by drowning and there was no suspicion regarding her death. If, ordinarily PW-3 Kashibai had told PW-2 Yamunabai that the appellant had forcibly taken away Shivkanya into sunflower crop, obviously with intention of satisfying his lust, PW-2 Yamunabai would have disclosed this fact to her husband and also to Police Patil immediately on 12.04.1994 or at least on 13.04.1994 immediately after the dead body was found. Not only that, Vasishtha would have also stated about it when he learnt about the death of Shivkanya. 12. Not only that, Vasishtha would have also stated about it when he learnt about the death of Shivkanya. 12. If really the parents or uncle of Shivkanya had information that Shivkanya was forcibly taken away by the appellant and if dead body was found thereafter, they would not have failed to blame the appellant for the death on 13.04.1994 itself. At least they would have disclosed this fact to Police Patil and also to the Police who had come for enquiry. The silence of these persons at the time of inquest and spot panchanama raises doubt whether really Kashibai had been with deceased Shivkanya and she had informed her mother that Shivkanya was forcibly taken by the appellant into the sunflower crop in the land of Rama Sutar. It may be noted that PW-2 Yamunabai has lodged the complaint on 14.04.1994 and the time of registration given on the complaint at Exh.28 is 16:35 hours, which was about 3-4 hours after the post-mortem was performed. 13. So far as the child witness is concerned, in the case of The State of Bihar V/s. Kapil Singh, AIR 1969 Supreme Court 53 following observations are made in para 6. "6............ While such a child witness can often be expected to give out a true version because of her innocence, there is always the danger in accepting the evidence of such a witness that, under influence, she might have been coached to give out a version by persons who may have influence on her.............." Similarly, in Suresh V/s. State of U.P., AIR 1981 Supreme Court, 122, it is observed in para 6 that witness Sunil examined in that case was a witness of truth, not a witness of imagination as most children of that age generally are. So far as child witness is concerned, it is observed in para 11 that :- "11....................A witness who, by reason of his immature understanding, was not administered oath and who was privileged, by reason of his years, not to make his answers in an intelligible and coherent manner is unsafe to be trusted wholesale...... Children, in the first place, mix up what they see with what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which tend to stray." 14. Children, in the first place, mix up what they see with what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which tend to stray." 14. In this case the evidence of PW-3 Kashibai becomes doubtful because of conduct and behaviour of parents and uncle of deceased Shivkanya. On the day of incident after learning that the appellant had forcibly taken away Shivkanya into sunflower crop, mother Yamunabai and uncle Vasishtha went to search Shivkanya only in the land of Rama Sutar. When they found that she was not in the land of Rama Sutar, they came back home. They did not try to search Shivkanya anywhere else. They did not report the matter to Police Patil. At least when Shivkanya has not returned home in the evening or at night, it was but natural for father of Shivkanya and other close relatives to go in search of her, but prosecution evidence is conspicuously absent regarding this aspect. Moreover, the conduct after finding dead body on 13.04.1994 is also unnatural. There was no reason why Police Patil should falsely mention in his report to police filed on 13.04.1994 that the death of Shivkanya might have been accidental due to fall into the Well and there was no suspicion regarding her death. The Police Patil has stated in his cross-examination that prior to giving said report, he had met parents and uncle Vasishtha of deceased Shivkanya. Even when both parents of Shivkanya were present at the time of inquest and spot panchanama, they did not disclose to the Police that they suspect some foul play and the appellant must have done the same in view of earlier incident. So the question that arises is whether the incident of 12.04.1994 as disclosed by PW-3 Kashibai had really taken placed. There was no complaint till 4.00 p.m. on 14.04.1994 which was more than 48 hours after Shivkanya had become missing. This delay is unnatural. The deceased was 15 years of age, whereas the appellant is 27 years of age and admittedly the applicant has wife and three daughters. In this case Vasishtha is not examined. 15. From circumstances brought on record there is nothing to show that Shivkanya was not a willing partner in illicit affair. This delay is unnatural. The deceased was 15 years of age, whereas the appellant is 27 years of age and admittedly the applicant has wife and three daughters. In this case Vasishtha is not examined. 15. From circumstances brought on record there is nothing to show that Shivkanya was not a willing partner in illicit affair. In such case, the appellant had no reason to cause her death. On the other hand those who had objection to such illicit relation, would have motive to harm Shivkanya. Doctor’s evidence did not show that there was any sexual assault on her or that she must have resisted such attempt. 16. It is also not that the appellant is very influential person. He is also a sugar-cane labourer working in same gang. On the other hand family of Shivkanya is big. She has uncles other than Vasishtha residing in same Wada (building) but separately. The Police Patil is also of their community. 17. It is further argued before us that Head Constable Nagargoje is examined at Exh.41. He recorded the complaint Exh.28 at Khardewadi on 14.04.1994 and then registered crime and handed over investigation to PSI Thombare. Prior to that he had recorded inquest panchanama Exh.20 and spot panchanama Exh.25. He recorded statement of father and sister of deceased Shivkanya. He also recorded statement of grandmother of Shivkanya. In the cross-examination, he stated that the enquiry into A.D. No.8 of 1994 was handed over to him and he went to Khardewadi on 13.04.1994. The father and mother of Shivkanya were present at the spot of incident. He drew inquest and spot panchanama. Then he sent the dead body for post-mortem and halted at Khardewadi at night. The complaint Exh.28 was not given to him on 13.04.1994. So, it appears that the complaint was lodged in the afternoon of 14.04.1994. It is argued before us that this witness had admitted in para 3 that he recorded statement of father, mother and sister of deceased Shivkanya during A.D. enquiry and those statements are not on record. Copies thereof were not supplied to the accused. Those earliest statements of material witness namely, PW-2 Yamunabai and PW-3 Kashibai are withheld from the Court. So, the question arises whether they were consistent with the incident of 12.04.1994 deposed before the Court. Copies thereof were not supplied to the accused. Those earliest statements of material witness namely, PW-2 Yamunabai and PW-3 Kashibai are withheld from the Court. So, the question arises whether they were consistent with the incident of 12.04.1994 deposed before the Court. It is argued before us that suppression of statements of material witnesses during A.D.enquiry is material circumstance against the prosecution. 18. Learned Advocate for the appellant cited case of Bodh Raj alias Bodha and others V/s. State of Jammu and Kashmir, 2002 AIR SCW 3655 and argued that this case is based on circumstantial evidence, particularly on "last seen theory". In para 32 the following observations are made:- "The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of a guilt in those cases." 19. Learned Advocate also cited case of Malleshappa V/s. State of Karnataka, 2007 AIR SCW 6100 on "last seen together". It is worth noting that in this case nobody questioned accused regarding whereabouts of Shivkanya at any time, not even after finding the dead body. Head Constable Nagargoje did not say that he enquired with the appellant about Shivkanya on 12th or 13th April, 1994. Nor it is stated by anybody that either parent or uncle Vasishtha or any other person had questioned the appellant regarding Shivkanya on 12th & 13th April, 1994, until the FIR is lodged. So, taking into consideration all the circumstances, in our opinion, the evidence of PW-2 Yamunabai and PW-3 Kashibai does not inspire confidence so as to base conviction on their evidence in this case. 20. For the above reasons, we give benefit of doubt to the appellant and allow the appeal. In the result the following order is passed:- i. The Criminal Appeal is allowed. ii. 20. For the above reasons, we give benefit of doubt to the appellant and allow the appeal. In the result the following order is passed:- i. The Criminal Appeal is allowed. ii. The order of conviction and sentence passed by learned II Additional Sessions Judge, Beed in Sessions Case No. 108 of 1995 on 31.07.1997 is hereby set aside. Appellant - Asaram s/o Dnyanoba Dake is acquitted of offence punishable under Sections 302 & 201 of Indian Penal Code. iii. Appellant’s bail bond stands discharged. Fine amount, if deposited, be refunded to the appellant.