A. P. LA VANDE, J. :- By this appeal. the appellants ('The accused' for short) take exception to the judgment and order dated 31st October. 2003 passed by the Second Additional Sessions Judge, Wardha in Sessions Trial No.32/96 convicting the appellants for the offences punishable under Sections 302 and 20 I read with Section 34 of the Indian Penal Code and sentencing them for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code to suffer imprisonment for life and to pay a fine of Rs.5001- (each) in default to undergo R.I. for six months and for the offence punishable under Section 210 read with 34 of the Indian Penal Code to suffer R.I. seven years and to pay a fine ofRs.50D/- (each) in default to suffer R.I. for six months. Both the sentences are ordered to run concurrently. 2. The prosecution case as unfolded during the trial is as under: On 21-10-1994 Madhukar Onkarrao Chaudhari. Police Patil of Village Undarmari lodged report at Police Station. Karanja (Ghatge) that one dead body of unknown person was seen lying in one cement pipe under the bridge on National High-Way No.6. On the basis of the said report initially station diary entry was made. Assistant Police Inspector M.B. Deshmukh went to the spot with panch witnesses and prepared spot panchanama. He seized articles lying near the dead body on the same day at about 4.00 p.m. Accused no. I and his brother Kailash identified the dead body of deceased Dnyaneshwar Mukardam. Dnyaneshwar was the maternal cousin of accused Satish. Assistant Inspector Mr. M. B. Deshmukh requested the Medical Officer of Primary Health Centre to conduct post -mortem examination on the dead body of the deceased on the spot itself since the dead body was decomposed. Medical Officer Dr. G. W. Bhagat conducted post-mortem on the dead body on the spoT. The dead body was brought to Ashti and massages were conveyed to the relatives of the deceased. During the course of investigation, it was revealed that on 19-10-1994 the accused Satish, victim Dnyaneshwar and accused Wasudeo had gone to village Pardi in the evening in auto-rickshaw and all three of them had dinner at the residence of Laxman Tiple. The dead body was brought to Ashti and massages were conveyed to the relatives of the deceased. During the course of investigation, it was revealed that on 19-10-1994 the accused Satish, victim Dnyaneshwar and accused Wasudeo had gone to village Pardi in the evening in auto-rickshaw and all three of them had dinner at the residence of Laxman Tiple. It also transpired that at the relevant time accused Satish had asked his son Arun to bring liquor and accordingly Amn had brought liquor and both the accused had consumed liquor at the time of dinner. Deceased also had consumed liquor. At about 10.00 p.m. all three of them left Pardi to return back to Ashti via Sarwadi. Since the auto-rickshaw did not have light Hirabai and Laxman Tiple had advised them not to leave Pardi during night hours but Satish persuaded the deceased to return back. However, it was the further case of the prosecution that both the accused had brought auto-rickshaw to Vishkarma Welding Workshop early in the morning at about 4 to 5 a.m. for repairs and the proprietor of the said workshop Nagorao Marotrao Parade repaired the said auto-rickshaw which was damaged on the left side and the iron rods of the roof of the auto were bent and broken. The father of the victim lodged report at Karanja Police Station on 2210-1994 whereupon offence under Section 302 of the Indian Penal Code was registered against both the accused and they were arrested. After completion of the investigation, charge-sheet was filed under Sections 302 and 201 read with Section 34 of the Indian Penal Code. Since the offences were exclusively tribal by the Sessions Coun. the case was committed to the Sessions Coun, Wardha, The accused pleaded not guilty to the charge under Sections 302 read with Section 34 and Section 201 read with Section 34 of the Indian Penal Code. The defence of the accused was of totally denial and false implication. 3. In Sessions Trial No.32/96 the prosecution examined six witnesses and produced several documents in support of its case. The trial Court upon appreciation of evidence held that both the offences were proved against both the accused and consequently convicted and sentenced the accused as above. 4. Mr. The defence of the accused was of totally denial and false implication. 3. In Sessions Trial No.32/96 the prosecution examined six witnesses and produced several documents in support of its case. The trial Court upon appreciation of evidence held that both the offences were proved against both the accused and consequently convicted and sentenced the accused as above. 4. Mr. Daga, learned counsel for the accused submitted that the prosecution has not been able to establish the offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code against the accused. He urged that the prosecution has not proved that the death of Dnyaneshwar was homicidal which was necessary to be proved by the prosecution to establish the charge under Section 302 read with Section 34 of the Indian Penal Code against the accused. He further submitted that the prosecution has chosen not to examine the Medical Officer since the accused had admitted the post-mortem report. Mr. Daga submitted that considering the facts and circumstances of the case the prosecution was obliged to prove that death of deceased was homicidal and mere admission of the postmortem by the accused docs not absolve the prosecution from proving the fact that the death of accused was homicidal. According to the learned counsel. the prosecution evidence that on 19-10-1994 deceased left Paldi along with the two accused to go to Ashti has not been established since the evidence in this regard does not inspire confidence. According to the learned counsel there is absolutely no evidence that the auto-rickshaw was got repaired by the accused on 20-10-1994 and. therefore, there is absolutely no evidence on record that the accused committed the offences for which they have been convicted and sentence. The learned counsel further submitted that even if it is held that the deceased left Pardi at about 10.00 a.m, on 19-10-1994 with the accused, this circumstance by itself is not sufficient to hold that the accused committed murder of deceased Dnyaneshvwar since there is no other evidence to connect the accused with the crime. In support of this submission. Mr. Daga, the learned counsel for the accused relied upon the following judgments. 1. Malleshappa Vs. State of Karnataka 2008 ALL MR (Cri) 280 (Supreme Court); 2. Hatti Singh Vs. State of Haryana 2007 ALL MR (Cn) 1451 (Supreme Court); 3. Mani Vs. In support of this submission. Mr. Daga, the learned counsel for the accused relied upon the following judgments. 1. Malleshappa Vs. State of Karnataka 2008 ALL MR (Cri) 280 (Supreme Court); 2. Hatti Singh Vs. State of Haryana 2007 ALL MR (Cn) 1451 (Supreme Court); 3. Mani Vs. State of Tamil Nadu 2008(1) Crimes 174 (SC). 5. Per contra, Mr. Doifode, learned A.P.P. submitted that the prosecution has established beyond reasonable doubt that deceased Dnyaneshwar left Pardi in auto rickshaw in the company of both the accused and thereafter he was not seen till his dead body was seen lying under the bridge on 21-10- 1994, According to learned A.P.P .. the accused have not explained as to when they paned with the company of the deceased whose dead body was found with several injuries on his person. He further submitted that the fact that both the accused had no injuries on their person coupled with the fact that they have not given any explanation as to when they paned with the company of the deceased clearly establish that the accused are the authors of the crime, The learned A.P.P. further submitted that the medical evidence clearly establishes that death of Dnyaneshwar was homicidal. The learned A.P.P. therefore, submitted that no interference is called for with the impugned Judgment and order of conviction and sentence passed against the accused. 6. We have carefully considered the rival submissions and perused the record. 7. In order to bring home the guilt of the accused the prosecution has relied upon the following circumstances. 1. Both the accused left Pardi in an autorickshaw in the company of deceased Dnyaneshwar on 19-10-1994 at 10.00 p.m. 2. Dead body of Dnyaneshwar was found on 21-10-1994 under the bridge with injuries on his person. 3. Post-mortem report (ExhA8) showing several injuries on the person of the deceased. 4. Non explanation by the accused as to when they parted with the company of deceased. 8. In order to prove the first circumstance the prosecution has relied upon the evidence of Hirabai w/o Ramesh Tip]e (P.W.1). Laxman s/o Fakira Tiple (P.W.4) and Ramesh s/o Lahanuji Tiple (P.W.5). 9. P.W. 1 Hirabai Tiple deposed that deceased Dnyaneshwar was her brother and she knew both the accused. 8. In order to prove the first circumstance the prosecution has relied upon the evidence of Hirabai w/o Ramesh Tip]e (P.W.1). Laxman s/o Fakira Tiple (P.W.4) and Ramesh s/o Lahanuji Tiple (P.W.5). 9. P.W. 1 Hirabai Tiple deposed that deceased Dnyaneshwar was her brother and she knew both the accused. About six years back on Wednesday, she returned from the field at about 6.00 p.m. and she was preparing the meal Dnyaneshwar came to her house and when he was eating ground nut podds both the accused came to her house and sat there for some time and also ate ground nut podds. After some time both the accused and Dnyaneshwar left the house for going to the house of Laxman Tiple. After taking dinner at the house of Laxman Tiple. both the accused and Dnyaneshwar returned to their house at about 10.00 a.m. She asked Dnyaneshwar to have meal but he told her that he had already taken meal at the house of Laxman Tiple. Accused Satish owned an auto-rickshaw to which there was no light. Hence, she asked the accused and Dyaneshwar not to go at night and further told them that if at all they wanted to go they should go by Thar road as Sarwadi road was having heavy traffic. However. both the accused insisted that they wanted to go by Sarwadi Road Thereafter. both the accused and Dnyaneshwar left the house by autorickshaw. On Friday, she received a message that Dnyaneshwar expired. All of them went to Ashti. In cross-examination the witness admitted that Satish was maternal cousin and that Satish and Dnyaneshwar used to visit her house after a period of one or two months. She also admitted that Satish and Dnyaneshwar were friends. The evidence of Lax man Tiple (P.WA) also establishes that at about 4-5 years prior to his deposition. Dnyaneshwar. Satish and son of one Bhoi came to his house in an autorickshaw of Satish and they had mea] at his house and thereafter they went to the house of Hira. He further deposed that his son Arun and accused had drank liquor and at about 10.00 p.m. Dnyaneshwar and accused had left his house for going to Ashti. In cross-examination. he deposed that Satish was his nephew and Dnyaneslnvar used to work as conductor on it. He further deposed that his son Arun and accused had drank liquor and at about 10.00 p.m. Dnyaneshwar and accused had left his house for going to Ashti. In cross-examination. he deposed that Satish was his nephew and Dnyaneslnvar used to work as conductor on it. Ramesh Tiple (P.W.5) who is the brotherin-law of Dnyaneshwar deposed that he knew both the accused and accused Satish is his paternal cousin. His evidence substantially is on the same lines as that to Laxman (P.WA). 10. The evidence of above three witnesses which has not been even denied in the cross-examination establishes that on 1910-1994 the accused along with deceased Dnyaneshwar had come to Pardi and had visited Hira (P.W.I). Laxman (P.WA) and had left Pardi for going to Ashti at about 10.00 p.m. In an auto-rickshaw owned by Satish. tile head lights of which were not in working condition. Thus. the prosecution has been able to establish that deceased had left Pardi in an auto-rickshaw in company of the accused on ] 9-1 0-1994 at about 10.00 p.m. 11. In so far as second circumstance is concerned, the prosecution has been able to prove that the dead body of deceased Dnyaneshwar was found in a pipe under the blidge on National Highway - 6 with injuries on 21-10-1994. 12. In so far as the homicidal death of deceased Dnyaneshwar is concerned, the prosecution has relied upon the post-mortem report (Exh.48) which has been admitted by the accused. Column no.17 of the post-mortem report disc loses that the deceased had the following external injuries. 1. L W near (Rt) eye at the base of nose. size 2" x 2". Subcutaneous deep with clotted blood. 2. Multiple injuries in the form of bruises over fact and forehead of different sizes. The skin of bruises is dark coloured. 3. Injury over (Lt) side of chest near mamang region (lacerated wound) size 3" x 3 cm muscle deep. due to hard and blunt object. 4. Multiple abrasions & bruises found over chest. abdomen (It) side. (Lt) axillary region. (Lt) infra-axillary region. Infra-axillary region is blackish & swollen due to trauma. The abrasion over back (full back). the skin is whitish with infection & decomposition. (Post-mortem abrasion). 5. There is a lacerated wound over (Rt) leg M/3 with Maggots init. There is compound # of (Rt) femun M/3 due to hard and blunt object. 6. (Lt) axillary region. (Lt) infra-axillary region. Infra-axillary region is blackish & swollen due to trauma. The abrasion over back (full back). the skin is whitish with infection & decomposition. (Post-mortem abrasion). 5. There is a lacerated wound over (Rt) leg M/3 with Maggots init. There is compound # of (Rt) femun M/3 due to hard and blunt object. 6. There is # (Lt) thigh with L.W. Size 1" x 2 cm. M/3 (Compound # (Lt) femur). 7. The skin over (Rt) lower limb is decomposed. blackish & there are multiple maggots inside the injury. There is also a large lacerated wound over (Rt) thigh anterior aspect with magots. 8. Abrasion over (Lt) leg medical aspect size 4" x 2 cm. black skined. 9. LW over (Lt) ankle region size 3" x 3 cm, bony deep, # (Lt) ankle + nt. 10. # with crush injury (Lt) little finger. 11. There is # over (Rt) knee with swelling. 12. Face skin is blackish. face is swollen. Doctor opined that injuries were ante-mortem and were caused about 48 hours before the post-mortem which was carried out on 21-101992 at about 2.00 p.m. Doctor opined that the probable cause of death was multiple traumatic injuries with multiple fractures with blunt injury (Lt) side of chest leading to PCF and Cardiorespiratory & Neurogenic shock. Since the post-mortem report does not conclusively prove that the death of deceased was homicidal it was obligatory on the part of the prosecution to examine the doctor who conducted post-mortem examination. Admission of the post-mortem report by the accused does not advance the case of the prosecution. Moreover. the Investigating Officer Mr. M. B. Deshmukh initially lodged report against the unknown driver of the vehicle under Sections 304-A and 201 of the Indian Penal Code. It was only upon the report lodged by the father of the deceased Dnyaneshwar that FIK under Section 302 of the Indian Penal Code was lodged against the accused. It is also pertinent to note that the father of the deceased has also not been examined and no reason is forthcoming as to why he has not been examined. In this back drop, it is difficult for us to hold that death was homicidal. The injuries on the deceased could have been caused in an accident. It is also pertinent to note that the father of the deceased has also not been examined and no reason is forthcoming as to why he has not been examined. In this back drop, it is difficult for us to hold that death was homicidal. The injuries on the deceased could have been caused in an accident. Thus, the prosecution has been able to prove only two circumstances i.e deceased left in the company of the accused on 19-10-1994 at about 10.00 p.m. in the company of the accused in an auto-rickshaw and the second circumstance is that the dead body of Dnyaneshwar found in the pipe under the bridge on National High-way No.6 within the boundary limit of mouza Undarmari. 13. In so far as second circumstance is concerned, the same does not directly connect the accused with the crime. In so far as the first circumstance is concerned, Mr. Daga has place reliance upon the Judgment of Malleshappa (supra) in which it has been held by the Apex Court that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime and there must be something more establishing connectivity between the accused and the crime. In the present case except for the circumstance that the deceased leli in the company of the accused no other circumstances directly connecting the accused with the crime has been established by the prosecution. Moreover. the prosecution evidence itself establishes that the deceased and the accused were friends. The prosecution has not been able to establish motive for the commission of the crime which the investigating officer was supposed to investigate since the case was based on circumstantial evidence. It is well settled by a catena of decisions of the Apex Court that in a case based on circumstantial evidence motive assumes imponance. No doubt the Apex Court has also held that if there is clinching evidence against the accused mere fact that the prosecution has not been able to establish motive by it self would not exonerate him but in the present case except the sole circumstance that the deceased left Pardi in the company of the accused and that dead body of deceased was found in a pipe on 2110-1994 no other circumstance has been established. These circumstances by themselves do not earn erring point to the guilt of the accused. In the case of Mani Vs, State of Tamil Nadu (2008(1) Crimes 174) the Apex Court has held that in the absence of any other clinching circumstance the only circumstance that the accused took the deceased away by itself can not lead to the conclusion that the accused murdered deceased. The ratio laid down in Mani's case is squarely applicable to the present case. Having regard to the settled principle laid down by the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra ( AIR 1984 SC 1622 ) dealing with the case of circumstantial evidence, we are of the considered opinion that the prosecution has not been able to establish the circumstances conclusively connecting the accused with the crime. No doubt the conduct of both the accused raises strong suspicion against them but it is also well settled that suspicion, however strong, cannot take the place of proof. Applying these principle we are of the considered opinion that conviction of the accused recorded by the trial Court for the offences punishable under Section 302 and 201 read with Section 34 of the Indian Penal Code is unsustainable and, therefore, deserves to be set aside. 14. For the aforesaid reasons the conviction of both the accused for the offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code and the sentences imposed on both of them are quashed and set aside and the accused are acquitted of the said offences. Both the accused are ordered to be released forthwith if not required in any other case. Appeal allowed.