JUDGMENT 1. The appellant is original accused No. 1 in Sessions Case No. 2 of 2000, has been convicted under section 302 and 201 of Indian Penal Code, directing to undergo imprisonment for life and to pay fine of Rs. 3,000/- and to suffer R.I. for three years and to pay fine for the offence under section 201 of I.P.C., by the learned 2nd Additional Sessions Judge, Malegaon, vide judgment dated 29th March, 2004. The appellant questions his conviction. 2. A dead body of unknown person was seen on 14.6.1999 floating in the well of agricultural field belonging to Shamkant Pawar, in a highly decomposed position, with legs amputated below the knees and lower jaw was broken. On 14.6.1999 the dead body could not be extracted due to incessant raining and darkness. In the morning of 15.6.1999 it was extracted from the well with the assistance of 7/8 persons. None of them could identify the dead body. Bones of deceased were exposed, stomach portion was carved out by maggots. However, tattoo mark on the left hand of the deceased indicated "Apurna Waman Santosh Pawar" and picture of Lord Hanuman was also painted in tattoo mark. On his right hand picture of Lord Shiva was painted and name as "Gaman Waman" was found written in tattoo mark. The dead body was with blood stained Nehru shirt and half pant. It revealed that there were eight surface wounds on his person. Inquest was drawn by police head constable Rajaram Chavan. The panchanama of the well was prepared. The apparels on the person of the dead body were taken charge of. Since the dead body was in a decomposed position, services of medical officer Dr. Shah and Dr. Suryawanshi were taken up at the well itself. The autopsy indicated that the deceased died due to hemorrhagic shock and cumulative effect of multiple injuries and amputation of both the legs of the deceased below knees. F.I.R. of Rajaram Chavan was recorded indicating murder of a unknown person giving rise to the offence vide C.R. No. 42 of 1999 under section 302, 201 of Indian Penal Code of Jayakheda Police Station.. 3. F.I.R. of Rajaram Chavan was recorded indicating murder of a unknown person giving rise to the offence vide C.R. No. 42 of 1999 under section 302, 201 of Indian Penal Code of Jayakheda Police Station.. 3. Based on tattoo marks extensive search for missing person in the vicinity was made and it revealed that Gaman Dashrath Pawar was a watchman in the field of Pandit Pundlik Khairnar at Antapur staying with his wife Supabai and sons Santosh, Waman and daughter Apurna. It revealed that he was also earlier serving as watchman in the field of appellant Uddhav. During the course of investigation, Supabai identified the apparels on the person of the dead body to be of her husband and confirmed that her husband Gaman was missing since 5/6 days. 4. The investigation pointed finger to appellant and to Fulsing (accused No. 2) who was acquitted by the Sessions Court and Shrawan Dhondu Wagh who was released in terms of report under section 169 of Cr.P.C. The accused/appellant was arrested on 17.6.1999. While in the police custody he disclosed of committing murder of Gaman Dashrath Pawar with the assistance of Fulsing and Shravan, before 10 days to the recovery of dead body on Wednesday by spade and axe. He allegedly disclosed the dead body was carried in a bullock cart upto the well of Shamkant Pawar and threw it. Based on his disclosure statement and willingness of the appellant that he would show the weapons of offence i.e. spade and axe was seized under panchanama (Exh.48). The accused appellant also thereafter discovered bullock cart situated in thrashing floor (Khalwadi) which was situated near village Antapur, alleged blood stains on the wooden planks of the bullock cart were noticed, it was cut through and sent to the Chemical analyzer for analysis. One stone weighing 7 kgs allegedly used for smashing the deceased was also taken charge at the instance of the accused/appellant. Simple earth and blood mixed earth was also sent to Chemical Analyzer. The statement of witnesses were recorded. 5. The investigation further revealed that deceased Gaman had been to the field of appellant i.e. gut no. 137/2 of Antapur Shivar. There was coriander and maize crops in the field of appellant. Simple earth and blood mixed earth was also sent to Chemical Analyzer. The statement of witnesses were recorded. 5. The investigation further revealed that deceased Gaman had been to the field of appellant i.e. gut no. 137/2 of Antapur Shivar. There was coriander and maize crops in the field of appellant. Said Gaman had demanded water from P.W. No. 3 (Taibai Fulsing Mali) and thereafter went behind her hut where his unwarranted sitting was questioned by son of appellant, hence, there ensued altercations. His son asked the deceased to leave the field. He did not pay any heed. Appellant felt that Gaman Pawar was threatening his son. He therefore left the agricultural operation (vakhar) and came near Gaman Pawar and slapped him. Gaman Pawar went ahead and turned back and asked appellant whether he was ready to play wrestling with him. Appellant got annoyed and dragged deceased into his field and started assaulting him. He sat on his chest and gave him fist blows. Thereafter he threw boulder on the head of Gaman Pawar as a result of which his head was crushed. He then took out an axe from his bullock cart and cut both the legs of Gaman Pawar below is knees declaring that by the same legs Gaman Pawar damaged his coriander crop. The above incident was seen by Taibai, wife of Fulsing. She became frightened. Accused/appellant warned her not to disclose the incident to anybody otherwise she would also be done to death. She therefore, returned back and did not disclose the incident to anybody except her husband. 6. There was marriage of Tatya in the family of Fulsing and Taibai. The engagement ceremony was to take place on 11.6.1999 at Deremadi near Shirdi. A boy, Sunil saw the dead body of one unknown person in the sugarcane field. It is alleged that in the same night appellant/accused with the help of accused no. 2 Fulsing arranged disposal of the dead body by wrapping the same in the gunny bags and carried in the bullock cart upto the well of Shamkant and it was thrown in the well. The seized items were sent to the office of Chemical Analyzer under a forwarding letter. The C.A. reports were received and the case of the appellant and acquitted accused was committed to the Sessions Court by the learned J.M.F.C. Satana. 7. The seized items were sent to the office of Chemical Analyzer under a forwarding letter. The C.A. reports were received and the case of the appellant and acquitted accused was committed to the Sessions Court by the learned J.M.F.C. Satana. 7. Charge was explained to the accused appellant and Fulsing for the offence under section 302, 201 read with 34 of Indian Penal Code. The accused did not plead guilty to the charge. The defence is of total denial. On analysis of the evidence the learned Addl. Sessions Judge as stated above convicted the accused appellant and acquitted accused no.2 Fulsing. 8. Elaborate submissions were advanced before us by the learned counsel for the accused/appellant and learned A.P.P. We have read depositions and perused the documents. Following points arise for our consideration : 1. Whether the prosecution prove that Gaman met with homicidal death? 2. Whether the prosecution prove that the accused appellant on 9.6.1999 at about 4.30 p.m. in his field Gut No. 137/2 situated at Antapur intentionally and knowingly committed murder of Gaman by beating him and amputing legs, smashing his face by boulder thereby committed the offence punishable under section 302 read with 34 of Indian Penal Code? 3. Whether the evidence led is sufficient to accept the theory propounded by the prosecution to confirm the conviction against the accused appellant? 4. What order? FINDINGS Point No. 1 : In the affirmative Point No. 2 : In the negative Point No. 3 : Evidence is insufficient. The judgment of conviction is set aside. Point No. 4 : The accused/appellant acquitted of the charge under section 302 and 201 of I.P.C. REASONINGS 9. It is in a most heinous manner deceased Gaman was killed. In order to establish the guilt the prosecution has examined 11 witnesses. P.W. No. 1 Rajaram carried initial investigation. He is complainant. P.W. 2 Dattatraya is police patil of village Antapura who gave Khabar (communication) to Jaykheda Police Station about the decomposed dead body floating in the well of Shamkant Pawar. P.W. 3 Taibai is alleged eye witness of the incident. She is wife of accused no. 2 Fulchand while discharged accused no. 3 is her brother. P.W. 4 is wife of deceased Gaman. P.W. 5 Khairnar is pancha concerning panchanama of the well. P.W. 6 Vasudeo panch for the seizure of the bullock cart seized from thrashing field of the appellant. She is wife of accused no. 2 Fulchand while discharged accused no. 3 is her brother. P.W. 4 is wife of deceased Gaman. P.W. 5 Khairnar is pancha concerning panchanama of the well. P.W. 6 Vasudeo panch for the seizure of the bullock cart seized from thrashing field of the appellant. P.W. 7 Pitamber is panch for discovery panchanama of the axe and spade but he did not support the prosecution. P.W. 8 Dr.Satish carried autopsy of the body of Gaman (Exh. 42). P.W.9 Nandu carried muddemal property under the forwarding letter to the office of Chemical analyzer, Aurangabad. P.W. 10 is I.O. Kailas. P.W. 11 is Dinkar, J.M.F.C. of Satana recorded statement of P.W. 3 Taibai under section 164 of Cr.P.C. 10. Considering tenor of evidence of PW 8 and PW 4 widow of deceased, it is undisputed that the decomposed dead body was of Gaman Pawar. His death was unnatural and homicidal. This answers point No. 1 in affirmative. 11. Now comes turn of eye witness P.W. 3. The prosecution case as unfolded by P.W. 3 Taibai Fulsing Pawar leads to an inference that she was distilling illicit liquor in her hut situated in the field of accused/appellant. She had controversies with accused/appellant owing to her activities, as appellant had warned her to discontinue distillation. However, she claimed that she carried distillation due to such permission rendered by the father of the appellant. The field was frequented by customers from the village or neighbourers. 12. According to PW 3 there was a quarrel at around 3 to 4 pm between accused/appellant and one unknown person (deceased) on 9th June, 1999. Her sons' would be mother in law Chandabai Shrawan Pawar had also witnessed the events. The deceased initially approached PW 3 and demanded water. She complied same, then altercations between Pappu, son of the accused/appellant and thereafter free fight ensued between accused and unknown person (deceased). Initially accused/appellant slapped the unknown person and due to commotion her husband Fulsing, Chandabai came out of the hut and insisted the accused/appellant not to assault the person. The discharged accused Shrawan implored accused/appellant to let the unknown person leave the field as he appears to be credulous and by saying so he remained outside the hut of P.W. No. 3. Shrawan consumed liquor from the witness. PW 3 says then accused/appellant pushed the deceased. Thereafter she alone remained outside the hut. The discharged accused Shrawan implored accused/appellant to let the unknown person leave the field as he appears to be credulous and by saying so he remained outside the hut of P.W. No. 3. Shrawan consumed liquor from the witness. PW 3 says then accused/appellant pushed the deceased. Thereafter she alone remained outside the hut. In her presence, the accused/appellant assaulted the deceased as indicated in the earlier part of this judgment. The dead body, after amputating the legs remained in the field for 3 days and it was seen by a boy Sunil who informed the same to her. By calculation it is after 5 days. Surprisingly P.W. 3 did not venture to communicate these events to anybody nor her husband bothered to inform the police as it could be possible that they would have been roped in the death of the said unknown person who latter was identified to be ex-employee of accused/appellant named Gaman. PW 3, accepts, every person should give information to police in respect of commission of cognizable offence. 13. The version of P.W. No. 3 Taibai that she saw the accused/appellant cutting both the legs of unknown person by axe and her asking the accused/appellant as to why he killed the unknown person without any reason, is beyond logic. It is curious that thereafter appellant came in the field at around 8.00 pm and asked P.W. 3 and her husband to leave the field. They refused inspite of being assaulted and on the next day, accused no. 1 allegedly took them to Taharabad by bus and thereafter with Chandbai and other family members went to Satana by jeep and from there to Chandwad. Then travelled to Lasalgan and Vinchur. She performed the engagement ceremony of her son Tatyabhau at Dardemali and returned back to the field of appellant. It is unbelievable that the dead body could be left unattended after amputation in the filed openly by any assailant. It was thereafter allegedly the accused carried the dead body with accused no. 2 and threw it in the well of Shamkant Pawar. 14. P.W. No. 3 was suggested even during her evidence, to be under influence of liquor. She did not refute. This shows her mental status at the material time even of narrating the events to the Court. The field was visited by customers occasionally and invariably on every Thursday. 2 and threw it in the well of Shamkant Pawar. 14. P.W. No. 3 was suggested even during her evidence, to be under influence of liquor. She did not refute. This shows her mental status at the material time even of narrating the events to the Court. The field was visited by customers occasionally and invariably on every Thursday. Then, why nobody could feel such dead body as by then foul started emanating with full swing. This is more so, as visitors/customers were frequenting the field. 15. PW 3 claims that her husband/original accused no. 2 though prosecuted, but he has not committed any offence and he does not know about the incident. She still resides with her husband. She admits, even after the incident, the couple lived in the field of appellant Uddhav without fear. The reason assigned by her not to communicate the incident to the villagers is threat perception from accused/appellant that she would be killed if the events are disclosed to anybody. 16. After the matter was reported to police and panchanama was drawn, she moved with her belongings to her brother Jangalu but did not bother to inform him that appellant had killed one unknown person. That the relations between Shamkant Pawar, (the owner of the well) and Uddhav were strained which was known to P.W. 3, she still choose not to disclose the incident to him inspite of witnessing the brutal events. Defence has suggested that it was she and her husband who had killed unknown person and she had implicated the appellant. 17. Statements of PW 3 were recorded by the police at Taharaabad, Mulher, Satana and also police station. I.O. initially disputed of existence of such statements, then bluntly said, he did not feel essential to mark it with chargesheet. The learned Magistrate in terms of section 164 of Cr.P.C. recorded statement of PW 3 (Exh. 53). The evidence has numerous discrepancies. 18. A big question mark is put to the reliability of deposition of P.W. No. 3 Taibai. Even if statement of Taibai was recorded on 18.6.1999 after few days of the incident dated 9.6.1999, however that will not invite to shower concession to the statement in terms of section 161 of Cr.P.C. as no reasons are assigned for the same. P.W. No. 2 Khairnar informed the police that the incident was conveyed to him by Taibai. Even if statement of Taibai was recorded on 18.6.1999 after few days of the incident dated 9.6.1999, however that will not invite to shower concession to the statement in terms of section 161 of Cr.P.C. as no reasons are assigned for the same. P.W. No. 2 Khairnar informed the police that the incident was conveyed to him by Taibai. However, he has resiled from such statement and even did not support the prosecution. P.W. 3 thus did not disclose the incident to police or any other witnesses. 19. P.W. No. 3 was available at Antapur from 14.6.1999 to 17.6.1999 inspite of having noticed the dead body, investigator did not enquire with her to record her statement even if accused was arrested on 17.6.1999 . This is more so, the investigator was conscious of the events having taken place in the field of accused. The phenomena of evidence suggests that Taibai was harboring ill will against the accused/appellant and this has spiced to prompt her to give false evidence. If we accept that P.W. 3 was threatened by accused/appellant, still it is unbelievable because after such exertion of threats she moved freely at least at 5-6 places within the span of 4/5 days while the dead body remained in the field unattended, uncovered and exposed to anybody. 20. The statement under section 164 of Cr.P.C. of Taibai recorded by P.W. 11 has its inbuilt deficiencies as she in an unequivocal terms informs the learned Magistrate that on Wednesday accused was arrested and since Thursday, she and her husband were with police. It was after her husband and herself being in control and thumb of police, she was subsequently produced before the Magistrate to record the statement under section 164 of Cr.P.C. In her statement, she informs that the accused/appellant paid her Rs.50/- and asked not to disclose the events to anybody, having destroyed the dead body by putting in jute bag and jute bag being burnt thereafter. 21. The doubt raised by defence, that there as an agreement between PW 3 to make statement u/s. 164 Cr.P.C. and in turn she was induced free passage of her brother Sharavan which has been complied with, compels for acceptance. 22. The sketchy picture of involvement of appellant projected by PW 3 is far from the ground realities. 21. The doubt raised by defence, that there as an agreement between PW 3 to make statement u/s. 164 Cr.P.C. and in turn she was induced free passage of her brother Sharavan which has been complied with, compels for acceptance. 22. The sketchy picture of involvement of appellant projected by PW 3 is far from the ground realities. The suspicion of accused should not run riot, particularly in the light of irrational behaviour of PW 3. She had gumption to remain under influence while deposing and the court meekly believed her version to be a true narration. 23. There should not be conflict that a conviction could follow even in a case of single witness. However, such evidence should be true, should inspire confidence and its character should be unblemished. These tests fall short when we appreciate evidence of PW. 3 on the anvil of human conduct. Thus the survey of above details, discards testimony of PW 3 to implicate the accused/appellant with the heinous crime. 24. The prosecution witness PW 2 Police Patil did not support the prosecution. PW 5 Pandit, a panch concerning the well has turned hostile. PW 7 Pitambar concerning seizure at the discovery statement of accused of axe and spade from the sugar cane crop and in consequence of information by the accused, axe being recovered has not supported the prosecution. Nonethe less, based on evidence by the investigator recovery statement and the panchanma can certainly be looked into. However, the spade or axe which allegedly are seized from the field at the instance of accused, does not find matching to human origin. In fact C.A. report at Exh. 59 blasts the prosecution case as the leaves though are stained with blood, does not indicate to be of human origin and C.A. could not give its origin as such. To the axe and spade (Article 5A and 5B) no blood is detected. Hence, no opinion by C.A. and consequently the observation of the learned Judge in Paragraph 42 in his judgment that there was blood detected on the blade of the axe and spade is contrary to the record. In these circumstances, the recovery of these incriminating articles lost signification to brand appellant to be the author of the events involving to his role. 25. Section 134 of Evidence Act provides that no particular number of witnesses is required for proof of any fact. In these circumstances, the recovery of these incriminating articles lost signification to brand appellant to be the author of the events involving to his role. 25. Section 134 of Evidence Act provides that no particular number of witnesses is required for proof of any fact. It is trite that it is not the number of witnesses but the quality of evidence which needs to be considered while ascertaining the truth of allegations made against the accused. The quality of hazy, inconsistent version of PW 3 and CA report is discussed hereinbefore. No reason is assigned as to why the child witness Sunil who allegedly saw the corpus is kept behind. No explanation is offered as to why the well owner Shamkant Pawar or Chandabai is not examined. 26. The power of observance, capacity to describe the particular fact, in particular angle, capacity to remember the same and power to describe the offence in sequence is certainly an individual quality. It varies from person to person. However, for that purpose, P.W 3's evidence looked from any angle damage the truth thereof than placing reliance in serious case of such nature. The credibility of PW 3 though is a solitary witness, shakes confidence as the adverse circumstances discussed hereinbefore, convince that she was totally under the thumb of investigator to fulfill desire of rotating case in a particular direction than reaching to appropriate and correct goal. 27. Nobody has seen that accused threw dead body of Gaman Pawar in the well of Shamkant Pawar in land gut no. 42 at Raver Shivar. The chain and link of circumstances is again missing. The net result is the prosecution has failed to establish that the accused/appellant on 9.6.1999 at about 4.30 p.m. in his field committed murder of Gaman Pawar by assaulting with axe, spade or amputed his legs. The evidence is not sufficient to accept the theory of prosecution and to confirm the conviction against the accused/appellant. Point Nos. 2 and 3 are answered in the negative. Hence order : The judgment of conviction is set aside. Criminal Appeal is allowed. The accused/appellant Uddhav @ Madhukar Ramchandra Jadhav is acquitted of the offence punishable under section 302 and 201 of Indian Penal Code arising out of C.R. No. 42 of 1999 of Jayakheda Police Station, Taluka Satana in Sessions Case No. 2 of 2000. The appellant is in custody. Criminal Appeal is allowed. The accused/appellant Uddhav @ Madhukar Ramchandra Jadhav is acquitted of the offence punishable under section 302 and 201 of Indian Penal Code arising out of C.R. No. 42 of 1999 of Jayakheda Police Station, Taluka Satana in Sessions Case No. 2 of 2000. The appellant is in custody. He be released forthwith, if not otherwise required in any other case. The bail bond stands cancelled.