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2010 DIGILAW 102 (BOM)

Rajesh Ramanand Pandey v. State of Maharashtra

2010-01-21

P.B.MAJMUDAR, R.G.KETKAR

body2010
Judgment : Oral Judgment: (P.B. Majmudar, J.) 1. This appeal is directed against the judgment and order of conviction recorded by the IIIrd Adhoc Additional Sessions Judge, Thane, dated 12th May, 2006, in Sessions Case No. 165 of 2005 by which the learned Judge has convicted both the accused for an offence punishable under Section 302 read with 34 of the Indian Penal Code (hereinafter “IPC”) and each of them is sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000/, in default to suffer rigorous imprisonment for three months. Accused Nos. 1 and 2 are also found guilty for an offence punishable under Section 452 read with Section 34 of the IPC and they were sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 5,000/, in default to suffer rigorous imprisonment for two months. The accused are also found guilty for an offence punishable under Section 394 read with 34 of the IPC and each of them sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 5,000/, in default to suffer rigorous imprisonment for two months. The accused are also convicted in connection with an offence punishable under Section 397 of the IPC and awarded rigorous imprisonment for three years. All the sentences are ordered to run concurrently. 2. The accused are charged for committing murder of the wife of complainant viz. Krishna Dhananjay Pore on 25th June, 2004 in between 8.35 and 12.30 Hrs. at the complainant’s room at Ghodbunder Road, Thane. Both the accused have been charged under Section 302 read with 34 of the IPC. It is the case of the prosecution that both the accused, with a view to commit robbery, entered the house of the complainant and they wrongfully restrained the wife of the complainant to put her in fear or hurt and thereby committed an offence punishable under section 452 read with 34 of the IPC. It is the case of the prosecution that the accused, in furtherance of their common intention, voluntarily caused hurt to the wife of the complainant with the help of leather wire of sewing machine and also by sharp weapon i.e. knife in committing robbery and thereby committed an offence punishable under Section 394 read with Section 34 of the IPC. It is the case of the prosecution that the accused, in furtherance of their common intention, voluntarily caused hurt to the wife of the complainant with the help of leather wire of sewing machine and also by sharp weapon i.e. knife in committing robbery and thereby committed an offence punishable under Section 394 read with Section 34 of the IPC. It is also the case of the prosecution that both the accused committed robbery of ornaments made up of gold and one sewing machine of Sansui Company in all amounting to Rs. 14,000/and at the time of committing robbery, both the accused used deadly weapon i.e. knife and caused grievous hurt to the complainant’s wife and thereby committed an offence of robbery punishable under Section 397 of the IPC. 3. The complainant lodged a complaint with the police for an offence punishable under Sections 302, 452, 394 and 397 against the unknown persons. On the basis of the complaint, the Investigating Officer recorded the statement of witnesses and carried out investigation. On 6th November, 2004, appellant No.1 came to be arrested and on 7th January, 2005, appellant No.2 came to be arrested. It is the case of the prosecution that the Investigating Officer, at the instance of appellant No.2, seized and recovered gold bangles and one VCD player from the house of the sister of the appellants in the State of U.P. On completion of enquiry, chargesheet was filed. The learned trial Judge, after considering the evidence of the prosecution witnesses, convicted the accused for the alleged offences. 4. Mr. Suryawanshi, the learned Advocate appearing for the appellants, submitted that considering the evidence on record it is clear that the prosecution has failed to make out a case against the accused in any manner. It is submitted that there is no direct evidence and the entire case is based on circumstantial evidence and considering the evidence on record, it cannot be said that there is sufficient evidence even in the form of circumstantial evidence to come to the conclusion that the accused have committed the alleged offence. Learned APP, on the other hand, submitted that since accused were in need of money as their financial condition was not good that ultimately the accused have committed the aforesaid offence. The learned APP submitted that the motive is, therefore, established. Learned APP, on the other hand, submitted that since accused were in need of money as their financial condition was not good that ultimately the accused have committed the aforesaid offence. The learned APP submitted that the motive is, therefore, established. It is submitted by the learned APP that accused No.2 subsequently was missing from the place of his employment and, therefore, from the evidence on record, the trial Judge has rightly convicted both the accused for the alleged offence. 5. In order to appreciate the rival contentions, we have considered the evidence led by the prosecution on record. 6. On behalf of the prosecution, the complainant, Dhananjay Sahadeo Pore, husband of the deceased Krisha was examined as Prosecution Witness No.1 at Exh. 15. The aforesaid witness has stated that he is having Engineering Business at Manpada, Thane. The said witness has stated that he is residing at Deodarshan Society, Ghodbunder Road, Thane. In the year 2004, he used to reside along with his family which includes his wife, son and daughter. In his evidence, the said witness has stated that his daughter used to go to School at about 6.30 a.m. and his son used to go to college at about 8.00 a.m. everyday. According to the said witness, he used to come to his house for taking lunch between 2 and 3 p.m. According to him, one Maruti Patil and Abhijit Pore and Rakesh Pande used to work in his workshop and the duty hours were from 8.30 a.m. to 5.00 p.m. The aforesaid workers used to visit his house for doing domestic work. The aforesaid witness has stated in hisevidence that on 25th June, 2004 at about 8.30 a.m. he had gone to his workshop. His daughter had left the house about 6.30 a.m. for school and his son had left the house at about 8.30 a.m. for college and his wife Krishna was alone in the house. At about 12.30 p.m., the daughter of the complainant made a telephone call at the complainant’s workshop informing him that when she returned from the school she found the safety door of the house in an open condition and another door was bolted from outside. She opened the door by unbolting the lock and after entering the house, she gave a call to her mother but there was no response. She opened the door by unbolting the lock and after entering the house, she gave a call to her mother but there was no response. She noticed that her mother was lying on the floor in the hall and blood was oozing from the mouth of her mother. She accordingly gave the said information to the complainant. The complainant thereafter went to his house and saw rope of sewing machine around the neck of his wife Krishna. He had also noticed two glasses of water on dining table in one tray. The complainant noticed that a VCD of Sansui Company was missing. He also noticed that two gold bangles from his cupboard were also missing and the cupboard was found open. The complainant thereafter gave a complaint to the police and his complaint was accordingly recorded at Exh. 16. Thereafter supplementary statement of complainant was also recorded. According to the complainant, he has stated to the police on 2nd April, 2004 that accused No.2 Rakesh @ Raju Pandey had been to his workshop and asked for work and he employed him as a helper in his workshop. According to the complainant, accused No.2 told him that his father is serving in Bayer India Company. The accused No.2 had also given his residential address to the complainant and thereafter accused No.2 started working as a helper in the Complainant’s workshop. The aforesaid witness has further stated that on 21st May, 2004, accused No.2 told him that there is marriage of his sister and he requested an advance amount of Rs. 2,000/and requested for 10 days leave. According to the complainant, he gave Rs. 1,500/to accused No.2 and accused No.2 joined his duties on 31st May, 2004. After two days accused No. 2 demanded Rs. 500/for his private expense which amount was paid by the complainant to him. It is the case of the complainant that thereafter he had asked accused No.2 to fix curtains at his residence and for that purpose he had taken accused No.2 to his house. His wife was also acquainted with accused No.2. On 12th June, 2004, accused No.2 demanded Rs. 5,000/as advance from the complainant on the ground that his mother is sick and he needed the money for the brain operation of his mother. He also assured that he would pay back the said amount within ten days. Accordingly, complainant gave him Rs. 5,000/. On 12th June, 2004, accused No.2 demanded Rs. 5,000/as advance from the complainant on the ground that his mother is sick and he needed the money for the brain operation of his mother. He also assured that he would pay back the said amount within ten days. Accordingly, complainant gave him Rs. 5,000/. It is the say of the complainant that thereafter accused No.2 had not come for work. The complainant has also further stated that on 21st June, 2004, accused along with his brother had been to his house in his absence. It is further stated by the complainant that accused No.2 told his wife that she should request the complainant that accused No.2 should get the job in the complainant’s factory. It is also the say of the complainant that accused No.2 had brought one sweet box from Delhi and he told his wife that he brought the sweet box from Delhi. The said witness has further stated that on 22nd June, 2004 in the morning accused No.2 joined his duties and on that day the accused No.2 went to the workshop of the complainant for work. At that timehe had worn a full pant which he used to wear at the time of work. According to the said witness, thereafter the accused had not come back for work. The said witness has stated that his wife was murdered on 25th June, 2004 between 8.30 and 12.30 p.m . The said witness has further stated that on 14th July, 2004, when he was present at his workshop he received a telephone call and as per the telephone talk a person told that he is Raju Pandey from Punjab. According to the complainant, the person told him on telephone that his wife is already murdered and now it will be his son’s number. He accordingly informed the police about the said telephone. It is the say of the said witness that he received the telephone call at 7.30 p.m. from accused No.2 and he had identified the voice. According to the complainant, he had confirmed the fact that the phone was made on his mobile from a PCO near Thane Railway Station. He accordingly informed the police about the said telephone. It is the say of the said witness that he received the telephone call at 7.30 p.m. from accused No.2 and he had identified the voice. According to the complainant, he had confirmed the fact that the phone was made on his mobile from a PCO near Thane Railway Station. Subsequently he also received two miss calls and on enquiry it was found that the same were received from a STD booth of one Shambu Gupta, near Varanasi Railway Station, although the said Shambu Gupta told the complainant that it is a public phone installed in the booth. The said witness has further stated that on 23rd July, 2004, he received an inland letter at his workshop address which came from Chevar, Sarangpura, Uttar Pradesh and the letter was signed by the nephew of accused No.2. The complainant opened the inland letter wherein it was found that the letter was signed by the nephew of accused No.2 and as per the said letter accused Nos.1 and 2 had been to their village. Considering the said circumstances, according to the complainant, he has confirmed the fact that accused No.2 had committed murder of his wife Krishna. According to the said witness, on 15th January, 2005, police called him in the Police Station for identification of his articles and he was shown one pair of golden bangales and VCD of Sansui Company and the complainant identified the same. According to the complainant, he was told by the police that accused No.2 had kept these articles at the house of his sister at Sarangpur, U.P. and at the instance of accused No.2, the said articles were seized. The said witness has further stated that he is not maintaining the register of workers in his workshop. The said witness has stated in his evidence that he had not stated before the police at the time of recording his complaint that he had taken accused No.2 at his house for fixing curtains. 7. The prosecution also examined one Maruti Patil as Prosecution Witness No.2 who is an employee of A.P. Engineering Company belonging to the complainant. The said witness has stated that he was serving in the workshop along with Abhijit Pore and Raju Pandey. He identified accused No. 1 Rajesh Pandey. 7. The prosecution also examined one Maruti Patil as Prosecution Witness No.2 who is an employee of A.P. Engineering Company belonging to the complainant. The said witness has stated that he was serving in the workshop along with Abhijit Pore and Raju Pandey. He identified accused No. 1 Rajesh Pandey. According to the said witness, accused No.2 was present on duty on 22nd June, 2004 and 23rd June, 2004. On 24th June, 2004, accused No.2 was at the workshop for duty. According to the said witness, accused No. 2 had been to the house of the complainant once or twice for personal work but he said that he had not disclosed the said fact in the statement before the police. The said witness has further stated that accused No.2 was not a permanent employee in the workshop. According to the said witness, accused No.2 who was present on 24th June, 2004 at the workshop, hanged his dress and went for latrine but thereafter he did not return back for work. 8. The prosecution has also examined one Nagabai Sisodiya, Exhibit29, as PW3. The said witness has stated that on 9th January, 2005, he was called for a panchanama at Kapurbavdi Police Station and accused No. 2 was present there. He made a disclosure statement that he had kept one VCD player and two gold bangles in the house of his sister. The memorandum of panchanama was shown to the said witness and he identified the signature. The said witness has further stated that thereafter he had gone to Uttar Pradesh along with the Police Officer and on 10th January, 2005, he, along with another pancha and the police reached Varanasi, Uttar Pradesh. On 11th January, 2005, at 9.00 a.m. they occupied seats in one jeep and all of them got down from the jeep after about two hours drive and walked about 4 to 5 minutes. Thereafter accused No.2 showed the house of his sister. The sister of accused No.2 took out one gunny bag from the loft of her house and produced one VCD and two gold bangles. The police thereafter seized the said VCD and two gold bangles and prepared seizure panchanama which is at Exhibit31. The said witness has stated in the crossexamination that he is having a transport business. The sister of accused No.2 took out one gunny bag from the loft of her house and produced one VCD and two gold bangles. The police thereafter seized the said VCD and two gold bangles and prepared seizure panchanama which is at Exhibit31. The said witness has stated in the crossexamination that he is having a transport business. He stated that he cannot say as to by which train they had gone to U.P. The said witness has stated that he, along with the police officer and accused No.2, proceeded to U.P. without reservation. The said witness further stated that they have travelled in a private jeep but he cannot give the number of the said jeep. The said witness further stated in the crossexamination that they did not meet Sarpanch or Police Patil of the village and the Maharashtra Police did not meet any other police in U.P. He has further stated that the police had not pasted labels of his signature on Articles 9 and 10 and that it is wrongly mentioned in seizure panchanama Exhibit31 that the labels of signatures of panchas were pasted on Articles 9 and 10. 21st January, 2010 9. The prosecution also examined one Pradip Shankar Nikam, who was called as a panch witness on 15th January, 2005. According to the said witness, accused No.2, Rakesh Pandey, was present in the Police Station and he made a disclosure statement that he will produce the knife which was thrown by him in the creek at Kalwa which was used by him at the time of commission of crime. According to the said witness, he along with accused No.2 and another panch witness and police staff occupied seats in the jeep and proceeded towards Thane Railway Station. The accused No.2 thereafter had taken all of them near railway track, 200 mtrs. Ahead towards Kalwa side and accused No.2 disclosed that he had thrown the knife in Kalwa creek. There was mud on the spot and there was no road to proceed towards the spot. The knife was not seen there due to mud and water and accordingly police prepared panchanama on that line which is at Exh. 35. 10. The prosecution also examined Dr. Shobhana Rohidas Chavan as Prosecution Witness No.5. The said doctor was attached to Civil Hospital, Thane. The knife was not seen there due to mud and water and accordingly police prepared panchanama on that line which is at Exh. 35. 10. The prosecution also examined Dr. Shobhana Rohidas Chavan as Prosecution Witness No.5. The said doctor was attached to Civil Hospital, Thane. The said witness has stated that on 25th June, 2004, dead body of one Krishna Dhananjay Pore was brought for postmortem and she had conducted the postmortem on the dead body. Injuries sustained by deceased as per postmortem were as under: 2. C.L.W. over anterior side of neck on left side 2.5 cms x 0.1 just in line to ligature mark on lower junction. 3. abrasion over nose 0.5 x 0.5 cms. with bleeding from nose. 4. Abrasion on upper lip 0.2 cms. X 0.1 cm. With black discolouration and swelling of both lips. 5. Contusion on right shoulder 7 cms. X 2 cms. With black discolouration, linear. 6. C.L.W. Over left hand 2 cms. X 0.5 cms. On dorsal aspect in 1st and 2nd web space”. “1. There was ligature mark all around 35 cms. In length, 3 in number on anterior side of neck, breadth of 0.5 cm. With ecchymosis with thyroid cartilage below. As per the opinion of the doctor, the cause of death of deceased is asphyxia due to strangulation and accordingly postmortem note was issued on that line. 11. The prosecution has also examined one Abhijit Pore, son of the deceased. The said witness has stated that on 25th June, 2004, at about 6.30 a.m. his sister had been to her school and he left the house at 8.15 a.m. for attending the college. He has stated that on the said date he was late and, therefore, he did not attend his lectures but he was with his friends. At 1.30 p.m. when he reached to his house, he came to know that his mother was murdered. The said witness has stated that one VCD of Sansui Company and some gold ornaments had been stolen. He has also stated that one VCR of Hitachi Company was also stolen. In the cross-examination, the said witness has stated that at the time of incident he was taking education in Standard 11 in Science faculty. He has also further stated that he was in 12th Std. He has also stated that one VCR of Hitachi Company was also stolen. In the cross-examination, the said witness has stated that at the time of incident he was taking education in Standard 11 in Science faculty. He has also further stated that he was in 12th Std. The said witness in the cross-examination has admitted that he had not stated to the police that accused No.2 was working in his father’s workshop and he has stated the said fact to the police one month after the incident. 12. The prosecution also examined by Ranjana Maruti Patil as Prosecution Witness No.7. The said witness has stated that her husband is working as a helper in the factory of the complainant Dhayanjay Pore since last five years and that she used to work in the house of the complainant as a maid servant in the year 2000. Subsequently, since 2004 she again started working in the house of the complainant as a maid servant at their new residence at Devdarshan Society, Thane. According to the said witness, complainant had taken her to his house three to four times along with him for household work. She has stated that since she used to go to the house of complainant for the household work, the watchman of the Society had not obstructed her. The said witness has stated that in the year 2004, her husband was not feeling well and, therefore, he did not attend his work (witness has 14 not even stated any date in this behalf). The said witness has further stated that the complainant had sent one person to her house for fetching the key of workshop from her husband and she had offered tea to that person. On enquiry, her husband told her that the name of the said person is Raju Pandey, who is newly appointed in the workshop. According to the said witness, her husband and Raju Pandey had taken tea in her house and her husband along with the said Raju Pandey had been to the workshop for work. The said witness has stated that on 25th June, 2004, at about 9.45 a.m. she had been to the house of the complainant for household work and at that time wife of the complainant was present in the house. The said witness has stated that on 25th June, 2004, at about 9.45 a.m. she had been to the house of the complainant for household work and at that time wife of the complainant was present in the house. The son and daughter of the complainant had been to their school and college and complainant had been to his workshop. The said witness has stated that she had cleaned the house and thereafter washed the clothes. At the time when she was cleaning the utencils, wife of complainant was cooking in the kitchen and at that time door bell rang. The wife of the complainant opened the door and thereafter she had taken two glasses of water in tray from kitchen. The wife of the complainant thereafter prepared tea and she had taken tea. At the time when she was going out of the house, she had seen accused Nos. 1 and 2 sitting in the sofa at the hall. According to the said witness, she had left the house at about 11 a.m. and at that time accused No.2 had worn duty clothes. Subsequently, at about 2 p.m. one person who was the owner of a shop “chacha” came to her house and asked her as to whether it is true that the wife of the complainant was murdered. She replied that she did not know. Subsequently on enquiry she came to know that the wife of the complainant was murdered. The said witness has stated that after the death of wife of complainant, she stayed in the house of the complainant for two three days. Thereafter she went to her village. She came from the village in February, 2006 and thereafter her statement was recorded by the police. In the cross examination she stated that she has not disclosed anything to the police due to fear of police. In the cross examination she has also stated that she had not disclosed about the arrival of accused Nos. 1 and 2 at the house of the complainant to any of the family members of the complainant nor she had disclosed the said fact to the complainant. She has stated that she had not disclosed the said fact to her husband. 1 and 2 at the house of the complainant to any of the family members of the complainant nor she had disclosed the said fact to the complainant. She has stated that she had not disclosed the said fact to her husband. She has stated that after the incident for about one year she had not disclosed this fact to her husband nor she had disclosed this fact to anyone in the village. She has stated that her statement was recorded for the first time by the police on 25th March, 2006 and for the first time she disclosed to the police about the arrival of accused Nos. 1 and 2 in the house of the complainant. In the cross examination she has admitted the fact that after the demise of the wife of the complainant, she had not disclosed to any relative of the complainant about the arrival of accused Nos. 1 and 2 to the house of the complainant on the day of the incident. 13. The prosecution has examined one Srirang Waman Bhosle as Prosecution Witness No.8. He was attached at Kapurbavdi Police Station since January, 2004 till 12th August, 2005. The said police officer had received the information from Senior P.I. that a murder had taken place at Devdarshan Society and accordingly he, along with police staff, went at the said place. During investigation, the said witness revealed that accused No. 2 who was working in the factory of the complainant had left the factory of the complainant prior to the incident and thereafter he was not traced out. Subsequently, one letter was received at the factory of the complainant which letter was handed over to him and it revealed that accused Raju Pandey and Rajesh Pandey are residing at Chevar, Tal. Ajamgad, Post Devgaon, U.P. and thereafter he had sent one police officer and police staff to U.P. for taking search of the accused. According to the said witness, he had also gone to U.P. along with other police staff. The family members of Rajesh Pandey disclosed to him that accused Raju Pandey and his brother had been to village Chevar and stayed there. According to the said witness, Devgaon police of U.P. had arrested accused Raju Pandey in connection with a NDPS case. Thereafter he went to U.P. and had brought the accused under transfer warrant to Thane. The family members of Rajesh Pandey disclosed to him that accused Raju Pandey and his brother had been to village Chevar and stayed there. According to the said witness, Devgaon police of U.P. had arrested accused Raju Pandey in connection with a NDPS case. Thereafter he went to U.P. and had brought the accused under transfer warrant to Thane. Prior to that he had arrested Rajesh Pandey, the elder brother of accused Raju Pandey. 14. The prosecution also examined Sanjay Sahebrao Sable as Prosecution Witness No.9, who was attached to Kapurbavdi Police Station from 2004 till December, 2005. The said police officer was deputed for going to U.P. for investigation. According to the said witness, accused No.2 had given disclosure statement that he will produce two gold bangles and one Samsui CD player which were stolen from the house of the complainant. The said witness has admitted in the cross-examination that he had gone along wi8th accused No.2 to village Chevar, Ajamgad, U.P. by train but he has not produced any railway tickets on record. He has not produced any document to show that he along with accused No.2 had gone to Chevar village nor he has claimed any expenses in connection with the visit to U.P. 15. The prosecution examined Raghunath Laxman Gharte as Prosecution Witness No. 10, who was attached to Kapurbavdi Police Station at the relevant time as P.I. The said police officer had carried out further investigation. He prepared inquest panchanama of the dead body at Exh. 8. He also prepared spot panchanama of the place of incident. According to the said witness, he had seized two glasses and one white handkerchief, leather rope of sewing machine from the spot under the spot panchanama. The said witness has admitted in cross-examination that no report from finger print expert or dog squad was received by him. The said witness has stated that he has no reason to show as to why he had not filed report of handwriting expert and dog squad. The said witness has stated that he had taken finger prints of both the accused. He denied the suggestion that the finger print experts told him that the chance print on glass does not match with the finger print of the accused and, therefore, he had not filed the same on record. The said witness has stated that he had taken finger prints of both the accused. He denied the suggestion that the finger print experts told him that the chance print on glass does not match with the finger print of the accused and, therefore, he had not filed the same on record. The said witness has also stated that he had not interrogated Ranjana Patil on 25th June, 2004 and he cannot assign any reason as to why he had not recorded the statement of Ranjana Patil on the same day or thereafter. 16. The aforesaid is the evidence led by the prosecution to prove the case against both the accused. 17. The learned counsel for the appellant submitted that the entire case of the prosecution is based on circumstantial evidence and considering the evidence on record it cannot be said that the prosecution has established its case against the accused beyond reasonable doubt. The learned counsel for the appellant submitted that even though the watchman of the society was present at the relevant time he has not been examined by the prosecution to prove as to whether he had seen the accused entering the house of the complainant on the relevant day and at the relevant time. Learned counsel submitted that even in his initial statement, the complainant had stated that accused No.2 was in his employment and he was not reporting for duty. Learned counsel further submitted that the statement of PW 7, on which the learned trial Judge has heavily relied upon, was taken for the first time after 21 months since the incident with a view to prove that she had last seen the accused in the company of the deceased. It is submitted that on the face of it, the evidence of PW 7 is not at all believable and prosecution has tried to prove its case with the help of the said witness with a view to see that the accused were last seen at the house of the complainant. The learned counsel further submitted that even there is nothing on record that the police visited sister’s house of the accused after taking any appropriate order from the higher officers. It is submitted that really if he had gone to U.P., naturally they would have at least put on record the tickets for such journey. The learned counsel further submitted that even there is nothing on record that the police visited sister’s house of the accused after taking any appropriate order from the higher officers. It is submitted that really if he had gone to U.P., naturally they would have at least put on record the tickets for such journey. Even the panch witnesses accompanied them did not know in which train they had gone. It is submitted that the proceedings are absolutely concocted one and on such evidence, no conviction could have been recorded by the learned trial Judge against the accused. 18. The learned APP submitted that this is a case of circumstantial evidence. She submitted that it has come in evidence that accused No.2 was in need of money and he used to demand money from the complainant from time to time. The motive of committing the offence is to commit theft and robbery. She submitted that after the incident the accused No.2 was not found reporting for his employment and subsequently the theft articles were recovered at his instance from the sister’s place. She submitted that, therefore, in view of the aforesaid circumstances the prosecution can be said to have established its case that accused No.2 who had motive to commit the offence committed the said offence with the help of accused No.1. 19. We have gone through the evidence on record and have also considered the rival submissions advanced by the learned counsel appearing in the matter. In order to find out as to whether the evidence on record clearly establish the guilt of the accused in connection with the offence in question, it is required to be noted that the complainant, who is the husband of the deceased, had not stated anything about the accused in his original complaint. It is further required to be noted that PW 7 is the only witness who has given evidence that she had seen both the accused at the house of the complainant on the relevant day and on that basis the prosecution has tried to establish its case that the accused were last seen in the company of the deceased. It is further required to be noted that PW 7 is the only witness who has given evidence that she had seen both the accused at the house of the complainant on the relevant day and on that basis the prosecution has tried to establish its case that the accused were last seen in the company of the deceased. So far as the evidence of PW 7 is concerned, in our view, it is risky to rely upon the evidence of the said witness firstly because her statement was recorded by the police after more than 21 months since the date of the incident. It is to be noted that as per the evidence of the said witness, after the incident she remained at the house of the complainant for three days. It is surprising to note that even during that period the police had not recorded the statement of the said witness. It is required to be noted that in her examination-in-chief, PW 7 has stated that in the year 2004 her husband was not feeling well and, therefore, he did not attend his work. According to the said witness, complainant had sent one person at her house for fetching the key of the workshop from her husband and that she had offered tea to that person and at that time her husband replied that the name of that person was Raju Pandey and that he is newly appointed in the workshop. According to her, on the fateful day i.e. 25th June, 2004, she went to the house of the complainant at about 9.45 a.m. and at that time the deceased was present in the house. At that time door bell rang and the wife of the complainant opened the door. The said witness has stated that on opening the door, both the accused entered the house. She, however, stated that at the time when he started proceeding out of the house of the complainant, she had seen accused Nos. 1 and 2 were sitting in the hall on sofa. According to the said witness, she had left the house of the complainant at about 11.00 a.m. and at that time the accused were sitting on the sofa. It is difficult to believe that both the accused continued to sit in the house for about one hour. 1 and 2 were sitting in the hall on sofa. According to the said witness, she had left the house of the complainant at about 11.00 a.m. and at that time the accused were sitting on the sofa. It is difficult to believe that both the accused continued to sit in the house for about one hour. It is interesting to note that the said witness has stated that accused No.2 had worn duty clothes. As against that, the complainant in his evidence has clearly stated that no uniform was provided to workers because his workshop was small. PW 1 has stated as under in his examination-in-chief. “One Maruti Patil, one Abhijit Pore and Rakesh Pande used to work in my workshop. Duty hours of these workers were from 8.30 a.m. To 5 p.m. Above mentioned workers also used to come to my house for doing my domestic work. I had not provided any uniform to workers because my workshop was small” 20. The investigating officer has also stated in his evidence that he is unable to give any reason as to why the statement of PW 7 was not taken at the relevant time. It is required to be noted that as per the say of PW 7, she stayed at the residence of the complainant for about three days after the aforesaid incident. Still she had not disclosed about the presence of accused to anyone nor even to the complainant. It is also pertinent to point out that for more than 21 months, the police never bothered to record her statement in any manner. As pointed out earlier, in her evidence she has stated that accused No.2 had worn duty clothes, though the complainant has stated that no such clothes were ever given to his workers. 21. It is amply clear that only with a view to prove the case of circumstantial evidence that this witness has been examined after considerable time of the incident and that the statement was also taken after considerable time after about 21 months only with a view to prove that the accused were present in the company of the deceased at the relevant time. The said witness has stated that her statement was recorded by the police for the first time on 25th March, 2006 about the arrival of accused Nos. 1 and 2 at the house of the complainant. The said witness has stated that her statement was recorded by the police for the first time on 25th March, 2006 about the arrival of accused Nos. 1 and 2 at the house of the complainant. The said witness has also stated in her evidence as under: “During my stay in the house of Dhananjay Pore, after demise of his wife, I had not disclosed any relative of Dhananjay Pore about the arrival of accused Nos. 1 and 2 to the house of Dhananjay Pore on the day of incident.” 22. Considering the aforesaid aspect, in our view, it is risky to rely upon the evidence of this witness for coming to the conclusion that the accused were last seen in the company of the deceased on the relevant day. The conduct of the said witness is absolutely unnatural as if she had seen the accused at the relevant time at the house just before the alleged incident. It is quite natural that at least she should have disclosed this fact to her husband or even to the complainant or to the children of the complainant as she has stayed for about three days at the house of the complainant after the aforesaid incident. The concerned police officer has also clearly stated that he is not in a position to point out as to why the statement of PW 7 was not recorded immediately. The evidence of the said witness, therefore, cannot be considered at all for the aforesaid reasons which we have pointed out above. 23. So far as the evidence of the complainant is concerned, it is required to be noted that even initially in his original complaint, he had not expressed any doubt regarding accused Nos. 1 and 2 in any manner. If really accused No.2 was missing from the place of incident immediately, the natural conduct of the complainant in such cases would be to disclose the name of the servant or employees as in a case of theft or robbery normally the persons who are employed as servants, the first doubt can always go against such servants or employees. The complainant has stated nothing in his original complaint about accused Nos.1 and 2 in any manner. According to the complainant, when he received a letter after few days he came to know that the accused are in UP. The complainant has stated nothing in his original complaint about accused Nos.1 and 2 in any manner. According to the complainant, when he received a letter after few days he came to know that the accused are in UP. The letter is not even exhibited on record and we have our own doubt about receipt of such letter by the complainant. 24. The son of the deceased in his examination in chief stated that he had not attended the college on the fateful day as he was late but he was with his friends. He has stated that one VCD of Samsui Company and some golden ornaments were stolen. Over and above the same, he has stated that one VCR of Hitachi company was also stolen away. 25. In connection with the recovery panchanama, it also creates a doubt about its genuineness. Even the panchas as well as the police officer who had accompanied the panchas at the village of the sister of accused No.2 could not give any particulars as to which train they had travelled and no tickets had been produced on record. Not only that, the concerned police officer had not even claimed the travelling allowance and the dearness allowance for such journey. If the motive for committing the offence is to commit theft, it is difficult to believe that the accused will keep the gold ornaments and VCD for more than six months. It is required to be noted that accused No.2 was arrested after about six months and accused No.1 was arrested after more than four months from the date of incident. We find substance in the argument of the learned counsel for the appellant that if really accused No.2 was in need of money, he would have taken cash which was found intact in the cupboard at the residence of the complainant. 26. PW 10 in his evidence has stated that even though finger prints had taken, no finger print report was produced on record for which he is not in a position to give any explanation. As pointed out earlier, the complainant has stated in his evidence that he had not given any uniform to his workers as against that PW 7 stated that accused No9.2 was in uniform at the time when he came at the house of the complainant on the relevant day. As pointed out earlier, the complainant has stated in his evidence that he had not given any uniform to his workers as against that PW 7 stated that accused No9.2 was in uniform at the time when he came at the house of the complainant on the relevant day. It is surprising to note that statement of PW 7, servant of complainant, was not recorded immediately after the incident, as normally in the case of theft the statement of servant in the house is usually taken to eliminate the doubt. It is required to be noted that even though as per the prosecution case, a security guard was also there at the residential premises of the deceased. The prosecution has not taken care to even examine the said security guard. If his statement was recorded, more light would have thrown as to whether really accused Nos. 1 and 2 entered the house of the complainant on the relevant day. The most important person who was present at the relevant place has not been examined by the prosecution. 27. The learned trial Judge has heavily relied on the evidence of PW 7. In our view, the evidence of PW 7 is highly improbable in view of the fact that as for more than one year she had not stated anything to her husband or to her relatives that on the fateful day accused Nos. 1 and 2 had entered the house of the complainant. It is risky to rely upon the evidence of PW 7 for the purpose of convicting the accused and for coming to the conclusion that they were last seen in the company of the deceased on the relevant day. The aforesaid aspect, in our view, clearly suggests that on the basis of evidence on record, it cannot be said that the prosecution has proved its case against the accused beyond reasonable doubt. The son of the complainant has stated that even VCR was also missing from the house. As against that, as per the evidence led by the prosecution, only VCD of the Samsui company and some gold ornaments were found missing. The son of the complainant has stated that even VCR was also missing from the house. As against that, as per the evidence led by the prosecution, only VCD of the Samsui company and some gold ornaments were found missing. According to the panch witnesses, the accused had taken the panch witnesses for the purpose of recovering the knife which could not be found and even as per the medical evidence, no knife injury was found as the cause of the death is asphyxia due to strangulation. Since the prosecution has not led any satisfactory evidence to establish the guilt of the accused and in view of the evidence which we have discussed above, it cannot be said that the prosecution has proved its case beyond reasonable doubt against the appellants. In our view, considering the totality of the evidence on record, it can safely be said that the prosecution has failed to make out its case against the appellants. Simply because accused No.2 had 27 not attended his duties itself cannot be a circumstance by which we can come to the conclusion that accused No.2 along with accused No.1 went to the house of the deceased on the relevant day for committing theft. 28. The prosecution has failed to examine an important witness who could have seen the presence of the accused at the relevant day i.e. the security guard who was in charge of the society where complainant resides. It is required to be noted that as per the evidence of the complainant, accused No.2 was employed by him after ascertaining from him his address and according to the complainant, accused No.2 also informed him that his father was serving in Bayer India Company at Thane. No attempts were made to record the statement of the father of accused No.2 in this behalf at any point of time. 29. The learned APP has relied upon the decision of the Supreme Court in the case of Manivel and others vs. State of Tamil Nadu, reported in (2008). In the said case the Supreme Court has upheld the conviction of the appellants under Section 302 of the IPC on the basis of last seen theory. In the instant case, however, there is no evidence worth the name regarding proving the case of last seen theory. In the said case the Supreme Court has upheld the conviction of the appellants under Section 302 of the IPC on the basis of last seen theory. In the instant case, however, there is no evidence worth the name regarding proving the case of last seen theory. As pointed out earlier, no conviction against the appellants can be recorded so far as the facts of the present case are concerned. 30. Considering the evidence as a whole, in our view, it creates a doubt as to whether the accused had gone to the house of the complainant on the relevant day at the relevant time for the purpose of committing theft. Even otherwise, it is not probable that a person will commit a robbery on a broad day light and will sit on the sofa for a considerable time. In our view, the prosecution has failed to prove its case against the appellants beyond reasonable doubt. As stated earlier, the circumstances on the record do not establish that the accused have committed the aforesaid act on the relevant day. After analysing the evidence on record, we are of the opinion that the prosecution has failed to make out its case against both the appellants. 31. We accordingly allow this appeal and set aside the order of conviction and sentence recorded by the learned IIIrd Ad-hoc Additional Sessions Judge, Thane, in Sessions Case No. 161 of 2005, dated 12th May, 2006. Both the appellants-accused are set at liberty unless their presence is required in connection with any other case.