Judgment U.D. Salvi, J. 1. Judgment and order dated 13.7.2011, passed by the learned Extra Joint Adhoc Additional Sessions Judge, Jalna in Sessions Case No.81/2010 find challenge in the present appeal. The appellant/ accused has been convicted of the offence punishable under Sections 302, 498A of the Indian Penal Code, 1860 and is presently undergoing life imprisonment. The appellant/ accused has also been sentenced to pay fine of Rs.5000/-, in default to suffer R.I. for two years in addition to the life imprisonment imposed on him for the commission of the offence punishable under Section 302 of the Indian Penal Code, 1860. He has been further sentenced to suffer R.I. for two years and to pay fine of Rs.1000/-, and in default to suffer S.I. for six months on the second count. 2. The appellant/ accused and the deceased Laxmibai were husband and wife who lived together at village Mhasla, Taluka Badnapur, District Jalna. The appellant/ accused was a stunt man, who performed daredevil acts (Maut Ka Kuwa) with his motorcycle. However, he had sustained accident and lost his left leg therein and as a result could walk only with crutches. 3. According to the complainant, the appellant/accused had been pestering his wife, the deceased Laxmibai, to bring Rs.50,000/-from her parents and after the accident, got addicted to liquor and used to beat Lxmibai under the influence of liquor. In the evening of 22.12.2009, the complainant – mother of deceased added, a boy from her neighbourhood informed her about the call received on mobile from the appellant/ accused to tell that Laxmibai had committed suicide and her body was removed for post mortem examination at Dabhadi. In response thereto, Dwarkabai went to the Government Hospital at Dabhadi and saw the dead body of her daughter Laxmibai; and thereupon, she lodged the complaint against the appellant/ accused with Badnapur Police Station. A crime was registered at C.R. No.218/2009 with Badnapur Police Station under Sections 302 and 498A of the Indian penal Code around 18.10 Hrs. on 23.12.2009. The police visited the place of offence – matrimonial home i.e. the residence of the accused situated at village Mhasla. Blood stained scissor used for tailoring work, pieces of bangles, blood stained earth and plain earth were collected from the place of offence. Clothes of the deceased and the accused were seized. on 23.12.2009. The police visited the place of offence – matrimonial home i.e. the residence of the accused situated at village Mhasla. Blood stained scissor used for tailoring work, pieces of bangles, blood stained earth and plain earth were collected from the place of offence. Clothes of the deceased and the accused were seized. Seized articles were sent to the Forensic Science Laboratory for further scientific investigation. Post mortem examination of the body of the deceased was conducted. Statements of local witnesses were recorded. 4. Post mortem examination revealed eight injuries including stab injuries and fracture of skull. Patently the injuries were homicidal and the victim Laxmibai was found to have died of head injury. The accused was charge-sheeted and the case was committed to the Court of Sessions. 5. Charges under Sections 302, 498A of Indian Penal Code, 1860 were framed. The accused pleaded not guilty to the charges. 6. The prosecution examined five witnesses. A lone eye witness examined by the prosecution did not support the prosecution case. The accused admitted scene of offence panchanama (Exhibit 13), seizure panchanama regarding the clothes of the deceased (Exhibit 14) and inquest panchanama (Exhibit 15). However, the accused denied his involvement in the crime and asserted that at the material time he was out, shopping in weekly bazaar at Dabhadi and when he returned home at 5.00 p.m., he was assaulted by the relations of his wife. He volunteered to examine himself vide statement (Exhibit 52). However, the accused did not examine himself. 7. Learned trial Court was largely moved by a fact that homicidal death of the deceased Laxmibai was caused at her matrimonial home, where the accused and deceased cohabited and the accused failed to explain this occurrence as well as substantiate his plea of alibi with cogent evidence. Learned trial Court also took into consideration misleading information regarding the alleged suicide of the deceased communicated to Dwarkabai allegedly on mobile by the accused. According to the learned trial Court, the circumstances revealed through the evidence were enough to hold the accused guilty of the crimes alleged against him. 8. Learned Advocate Mr. D.K. Thote for the appellant/ accused submitted that the appellant/accused was denied a fair trial inasmuch as he was made to cross-examine the complainant and as a result the cross-examination fell short of requisite material for laying foundation for plea of alibi. 8. Learned Advocate Mr. D.K. Thote for the appellant/ accused submitted that the appellant/accused was denied a fair trial inasmuch as he was made to cross-examine the complainant and as a result the cross-examination fell short of requisite material for laying foundation for plea of alibi. In support of his submissions, he placed reliance on the following judgments:- (1) P.P. Beeran Vs. State of Kerala ( AIR 2001 SC 2420 ) (2) Sunil Damodhar Gaikwad Vs. State of Maharashtra (2009(3) Bom.C.R. (Cri.) 504 9. Learned Advocate Mr. Thote for the appellant/accused further submitted that the incident had occurred during day time in an inhabited locality and yet, no eye witness account of the incident was adduced in evidence by the prosecution. Relying on the judgments:- (1) Bharat Vs. State of M.P. ( AIR 2003 SC 1433 ), and (2) Deoraj Goala & anr. Vs., The State of Assam (2011 Cri.L.J. 817); learned Advocate Mr. Thote for the appellant/ accused submitted that in absence of any eye witness account, the prosecution remained under obligation to prove every fact in chain of circumstances necessary to unerringly show the involvement of the accused in crime. He further submitted that there was no obligation on the accused to explain the occurrence and to prove his plea of alibi, unless the burden of proving the case was duly discharged by the prosecution. 10. According to P.W.4 Dr. Sanjay Joshi, Medical Officer, Public Health Centre, Dabhadi, he had noticed 8 external ante mortem injuries – 3 stab wounds, 4 C.L.Ws. and one abrasion as well as 4 fractures of the skull on the body of the deceased Laxmibai in course of post mortem examination and the injuries found were sufficient to cause death in ordinary course of nature. Despite the cross-examination by the duly instructed Advocate Mr. S.M. Chate for the accused, P.W.4 Dr. Joshi remained steadfast in his opinion that the injuries noticed on the person of the deceased Laxmibai were caused by scissor (Article 1). 11. Scene of offence panchanama (Exhibit 13) an undisputed piece of evidence reveals that the scissor (Article 1) was recovered from the scene of offence i.e. the residence of the accused. Scene of offence panchanama (Exhibit 13) further reveals that it was also a place used for tailoring work and as such, scissor (Article 1) had every reason to be there. Scene of offence panchanama (Exhibit 13) an undisputed piece of evidence reveals that the scissor (Article 1) was recovered from the scene of offence i.e. the residence of the accused. Scene of offence panchanama (Exhibit 13) further reveals that it was also a place used for tailoring work and as such, scissor (Article 1) had every reason to be there. Scene of offence panchanama (Exhibit 13) further reveals that the scissor was stained with blood and blood was found spilled at the said place. Pieces of bangles were also found lying at the place of offence. C.A. report (Exhibit 49) revealed presence of human blood of Group ‘B’, which was found on the clothes of the deceased, also on the pair of scissor (Article 1) seized from the place of offence. Obviously, Laxmibai was murdered at the said place and scissor (Article 1) was used in the crime. 12. These circumstances beg a question whether the accused had committed this crime. To answer this question, it is necessary to look into the other evidence adduced by the prosecution. 13. P.W.1 Dwarkabai was not an eye witness to the incident. She merely stated in her evidence that they were telephonically informed by the accused about the commission of suicide by their daughter. She did not state that she had received this call. None was examined by the prosecution to prove a fact that it was the accused who had made the telephone call misinforming Dwarkabai and others, living at Ekephal, Taluka Bhokardan, District Jalna about the alleged suicide of Laxmibai. Evidence of P.W.1 Dwarkabai is, therefore, of little assistance to the prosecution. A fact, however, clearly emanates from the evidence of P.W.1 Dwarkabai that the accused was lame he having lost his leg in an accident. P.W.2 Himmatrao Navale, father of the deceased Laxmibai, was also not an eye witness and made little headway for the prosecution. 14. P.W.3 Dhanabai Bhagure, a resident of the locality where the crime had occurred, did not support the prosecution except bringing out a fact on the record that the accused used to reside with his wife Laxmibai – the deceased Laxmiabi at the place of incident in the house owned by Raosaheb Mhaslekar. 15. Only credible fact that is presented in the prosecution evidence is of cohabitation of the accused with his wife Laxmibai at the place of occurrence and nothing else. 15. Only credible fact that is presented in the prosecution evidence is of cohabitation of the accused with his wife Laxmibai at the place of occurrence and nothing else. There is nothing in evidence to point out that the appellant/ accused and the deceased Laxmibai were last seen together at the place of occurrence or that the accused was present at the place of occurrence at the material time. Before the accused is required to prove plea of alibi, the law expects proof of the fact showing or indicating the involvement of the accused in the crime. Failure of the accused to adduce evidence regarding his plea of alibi can at the most interpreted as his failure to explain what he was doing when the incident had occurred at the place where he and his wife were known to have cohabited together. This failure on the part of the accused does not absolve the prosecution to bring some evidence that he was at his residence at the material time or was seen at his residence proximate to the time of occurrence. Amount of injuries on the body of the deceased coupled with the fact of existence of bangle pieces at the place of occurrence suggest the amount of struggle the victim had put in at the time of the incident. The struggle was not likely to have gone unnoticed in the residential locality where the incident had occurred. It also poses a question as to whether a lame person who needed crutches to walk could have managed to quietly finish the deceased Laxmibai in an incident involving such struggle. These questions make it all the more necessary for the prosecution to have adduced some evidence regarding the presence of the accused at the place of offence at the material time. 16. Learned trial Court, it appears, misread the headnote of the judgment of this Court reported in Wilfred Rozario Fernandes Vs. State of Maharashtra : 2011 ALL M.R. (Cri.) 451, which reads as under: “Circumstantial evidence – dead body of the deceased found lying on the ground with injuries on its neck and a blood stained chopper also located near dead body. Appellant-accused and deceased were last seen together in close proximity of time prior to the incident of murder. State of Maharashtra : 2011 ALL M.R. (Cri.) 451, which reads as under: “Circumstantial evidence – dead body of the deceased found lying on the ground with injuries on its neck and a blood stained chopper also located near dead body. Appellant-accused and deceased were last seen together in close proximity of time prior to the incident of murder. There used to be quarrels between accused and deceased and prior to incident accused was slapped by deceased in one such quarrel – Evidence of Doctor that death of deceased was unnatural due to cut throat injuries – Appellant accused has failed to offer any explanation for his abscondance to another place and stay at lodge – also there is no explanation about the seizure of blood stained shirt discovered at his instance, under panchanama – False answers given by accused in his statement recorded under Section 313 of Cr.P.C., furnished additional link against accused – Accused fails to discharge the burden cast upon him by Section 106 – Conviction of accused under Section 302 is proper.” The learned trial Court completely overlooked the failure of the prosecution to adduce cogent evidence regarding the presence of the accused at the place of occurrence at or around the time of incident and seizure of blood stained clothes of the accused. 17. In Bharat’s case (supra) there were two circumstances on the basis of which the appellant before the Apex Court was convicted by the trial Court, namely:- (i) The appellant having been last seen with the deceased, and (ii) Recovery of ornaments made at his instance. The Hon’ble Apex Court held that there was neither proper and legal identification of the ornaments nor the recovery as a consequence of the statement of the appellant. Only circumstance that was worth considering according to the Hon’ble Apex Court was the deceased having left with the appellant on 8.1.1981. The Hon’ble Apex Court held that there was neither proper and legal identification of the ornaments nor the recovery as a consequence of the statement of the appellant. Only circumstance that was worth considering according to the Hon’ble Apex Court was the deceased having left with the appellant on 8.1.1981. On this backdrop, the Hon’ble Apex Court allowed the appeal of the appellant in the said case with the following pertinent observations: “On this circumstance alone, in the instant case, it cannot be held that the prosecution has established the charge against the appellant only on the ground that appellant has failed to offer any explanation in his statement under Section 313, Cr.P.C. We have already come to the conclusion as above that the prosecution has failed to establish that the death of Phullobai took place on 8th January 1981, the earliest it could be on 10th January 1981. There is nothing to show as to what transpired between these dates. Mere non-explanation cannot lead to the proof of guilt against the appellant. The prosecution has to prove its case against the appellant beyond reasonable doubt. The chain of circumstances, in our opinion, is not complete so as to sustain the conviction of the appellant.” 18. As regards the contention that the accused was denied opportunity of a fair trial, it needs to be observed that the said contention is baseless as the record reveals the facts contrary to the said contention. The appellant/ accused continued to be represented by Advocate Shri S.M. Chate of his choice throughout the trial i.e. from the date the case was opened and the charges were framed till the judgment. It appears that only once i.e. at the time of conclusion of examination-in-chief of P.W.1 Dwarkabai the accused was required to cross-examine the witness in absence of his Advocate. However, P.W.1 Dwarkabai was recalled and was presented for further cross-examination on behalf of the accused by Advocate Mr. S.M. Chate. 19. As discussed above, the prosecution evidence falls short of proving chain of circumstances unerringly pointing out to the involvement of the accused in the crime. The appeal must, therefore, succeed. The appeal is allowed. The appellant/accused is acquitted of the offences punishable under Sections 302, 498A of the Indian Penal Code. He is ordered to be set at liberty forthwith unless required in any other case. The appeal must, therefore, succeed. The appeal is allowed. The appellant/accused is acquitted of the offences punishable under Sections 302, 498A of the Indian Penal Code. He is ordered to be set at liberty forthwith unless required in any other case. Fine amount, if paid, be refunded to him.