Judgment :- A.P. LAVANDE, J. 1. By this appeal, the appellant (hereinafter referred to as “the accused”) takes exception to the judgment and order dated 2nd September, 2004 passed by 2nd Ad-hoc Addl. Sessions Judge, Thane in Sessions Case No. 207 of 2004 convicting the appellant-accused for the offences punishable under Sections 302 and 201 of IPC. The accused has been sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/- and in default to undergo simple imprisonment for 3 months under Section 302 of IPC and to undergo RI for two years and to pay fine of Rs.1,000/-and in default to suffer simple imprisonment for three months in respect of offence punishable under Section 201 of IPC. 2. Briefly, the prosecution case is as under: PW 1 Ramesh Dinkar Bhosle was attached to Wagle Estate Police Station as PSO on 16/9/2002. At about 10 p.m. one Janardhan Khetale, Corporator informed him on telephone that one big tin box was lying at Hajuri, Road No.12, near Mahendra Dish Company in bushes and foul smell was coming from that box. Accordingly PSI Ramesh Bhosle along with PSI Patil and police staff went to the spot. Janardhan Khetale showed him the spot. The dead body of a lady was found in the said tin box. PSI Ramesh Bhosle informed this fact to his superior officer PI Tambat. PI Tambat alongwith PW 11 PI Godse and police staff went to the spot and noticed one dead body of a lady, aged about 25 years of white complexion. There was blue colour Salvar and yellow colour Kurta and black colour dupatta on the person of the dead body which was found in a decomposed position. With the help of police staff the dead body was taken out of the tin box. During observation he noticed that tongue of lady had come out of the mouth. He suspected that the lady was murdered and in order to destroy evidence the dead body was kept in the box. He therefore, lodged report vide C. R. No. I 211/2002 at the police station under Sections 302 and 201 of IPC against unknown person. Thereafter inquest panchnama was prepared of the dead body of the deceased in presence of the panchas and the dead body was sent to Civil Hospital for postmortem examination. The spot panchnama was also prepared. He therefore, lodged report vide C. R. No. I 211/2002 at the police station under Sections 302 and 201 of IPC against unknown person. Thereafter inquest panchnama was prepared of the dead body of the deceased in presence of the panchas and the dead body was sent to Civil Hospital for postmortem examination. The spot panchnama was also prepared. In order to identify the dead body, letters were sent to Commissioner of Police, Thane, Rickshaw Union and Editor of local newspaper. On 23/10/2003 the accused was arrested, Crime Branch, Thane handed over the accused to the investigating officer for investigation and thereafter statements of several witnesses were recorded. The investigation revealed that the dead body which was found in the tin box was of Payal, the wife of the accused. The investigating officer sent photograph of dead body and photograph of Payal for comparison. After completion of the investigation charge-sheet was filed before the JMFC, Thane. 3. Since the offence punishable under Section 302 of IPC was exclusively triable by Court of Sessions, the case was committed to the Sessions Court, Thane. 4. In Sessions Case No. 207 of 2004, charge was framed against the accused for the offences punishable under Sections 302 and 201 r/w 34 of IPC. The other accused was absconding. The accused pleaded not guilty to the charge and claimed to be tried. The defence of the accused was of total denial and false implication. The statement of the accused under Section 313 of Cr. P.C. was recorded. The accused did not lead any defence evidence. Upon appreciation of the evidence led by the prosecution, the learned trial Judge held that the prosecution had been able to establish both the offences against the accused beyond reasonable doubt and consequently convicted and sentenced him as above. 5. Learned counsel Mr. Khan Abdul Wahab, appearing for the appellant/accused submitted that the circumstantial evidence led by the prosecution does not conclusively establish the complicity of the accused in the commission of the crime. Learned counsel further submitted that the prosecution has not established the identity of the dead body found in the tin box as that of Payal, the wife of the accused. Learned Advocate further submitted that the prosecution has not proved that the deceased died homicidal death. Learned counsel further submitted that the prosecution has not established the identity of the dead body found in the tin box as that of Payal, the wife of the accused. Learned Advocate further submitted that the prosecution has not proved that the deceased died homicidal death. Learned counsel further submitted that the evidence of PW 4 Lalita Lallubhai Pardeshi, PW 5 Jagdishprasad Chaitram Pokriya and PW 7 Datoba Shankar Dende does not inspire confidence and as such no reliance can be placed on the same. Learned counsel further submitted that no reliance can be placed on the testimony of PW 8 Mohd. Rafique Mohd. Mustafa Chaudhary, who claimed that the accused had purchased a tin box from him on 12/9/2002 in view of inherent contradictions in his testimony. Learned counsel further submitted that no reliance can be placed on the fact that accused had shown the place of incident inasmuch as the same was already known to the prosecution agency. Learned counsel further submitted that learned trial Judge has erred in placing reliance upon the evidence of PW 10 Ganesh Dayanoba Mane, the Photographer to hold that the body found in the tin box was of Payal, the wife of the accused, on the basis of the black thread found around the neck of both. Learned counsel further submitted that the photographs of the dead body were not shown to any of the prosecution witnesses more particularly PW 4, PW 5 and PW 7 who could have identified the deceased as 'Payal', the wife of the accused. Learned counsel further submitted that the prosecution case itself suggests that PW 2 Dolly Thakur and PW 6 Raj Umesh Thakur claimed that the dead body found in the tin box was that of 'Pinky' their sister and even claimed the gold ring, which was found on the dead body as that of Pinky. Learned counsel, therefore, submitted that in the absence of identification of the dead body as that of Pinky, the accused is not liable to be convicted for the offences punishable under Sections 302 and 201 of IPC. Learned counsel further submitted that the photographs on the basis of which the dead body has been identified to be that of Payal were not seized during investigation as such no reliance could have been placed on the same. Learned counsel further submitted that the photographs on the basis of which the dead body has been identified to be that of Payal were not seized during investigation as such no reliance could have been placed on the same. Learned counsel also submitted that no relatives of Payal has been examined during the trial and this creates serious doubt in the prosecution. 6. Learned counsel further submitted that the entire evidence led by the prosecution does not conclusively establish that it was the accused and the accused alone, who was the author of the crime. Learned counsel further submitted that the accused is liable to be acquitted of both the offences for which he has been charged and convicted by the learned trial Judge. 7. Per contra Mrs. Deshmukh, learned APP submitted that the circumstantial evidence led by the prosecution conclusively establish the complicity of the accused in the commission of both the offences for which he has been convicted by the learned trial Judge. It was further submitted that mere fact that the investigation was faulty by itself could not come to the rescue of the accused and the evidence led by the prosecution has to be tested de hors such lapses on the part of the investigating agency. Learned APP further submitted that the evidence of prosecution witnesses, more particularly PW 4, PW 5 and PW 7 clearly establishes that it was the accused who committed murder of his wife Payal and carried her dead body in a tin box in order to cause disappearance of evidence. It was further submitted that blood was already found on the clothe of the accused in terms of the chemical analyzer's report which clearly implicates the accused in the commission of the crime. Learned APP further submitted that the death of deceased was homicidal since tongue was protruding out of the mouth. It was lastly urged that the circumstantial evidence is clinching and establishes the complicity of the accused in the commission of both the offences and, therefore, the appeal be dismissed. 8. We have carefully considered the rival submissions and perused the record. 9. In order to prove the complicity of the accused in the commission of both the offences, the prosecution examined eleven witnesses. 8. We have carefully considered the rival submissions and perused the record. 9. In order to prove the complicity of the accused in the commission of both the offences, the prosecution examined eleven witnesses. Perusal of the prosecution record discloses that the prosecution, in order to bring home the guilt to the accused has relied upon the following circumstances:- i) Death of Payal was homicidal; ii) the body found in the tin box was that of Payal, the wife of the accused; iii) The accused was residing with his wife Payal and daughter in the flat of PW 7 Datoba Dende in Room No. 405, Taj Mahal Apartment, at Kisannagar No. 2, W.E. iv) The accused was seen carrying a tin box at 4 a.m. and the same was taken in a rickshaw towards Road No. 16 of Wagale Estate. v) The tin box in which the dead body was found was purchased by the accused from PW 8Mohammed Choudhary. vi). The place of incident where the trunk was thrown was shown by the accused. 10. We shall now deal with each of the circumstances and find out whether prosecution has been able to establish circumstances to bring home the guilt to the accused. 11. Insofar as homicidal death of Payal is concerned, the prosecution has relied upon postmortem report (Exh.-10) which was admitted by the accused. Perusal of the postmortem report discloses that the dead body which identified as that of Pinky Umesh Thakur and there were moggots present on the dead body and no injuries were found. The tongue was swollen and protruding from mouth. Doctor conducted postmortem on the dead body on 17/9/2002 and reserved his opinion till the receipt of report from the Chemical Analysis in respect of visera. After receipt of the C.A. Report the opinion of doctor was sought and he opined that since there were no fractures of bones and no poison was found as per the C.A. Report, the exact cause of death could not be ascertained. 12. It is pertinent to note that the prosecution chose not to examine the doctor since the accused admitted the postmortem report. 13. In view of the above referred opinion given by the doctor who conducted the postmortem, it is not possible for us to hold that the prosecution has been able to establish that the death was homicidal. 12. It is pertinent to note that the prosecution chose not to examine the doctor since the accused admitted the postmortem report. 13. In view of the above referred opinion given by the doctor who conducted the postmortem, it is not possible for us to hold that the prosecution has been able to establish that the death was homicidal. The mere fact that tongue was protruding from mouth by itself is not sufficient to hold that the death was homicidal. The prosecution ought to have examined the doctor who had conducted the postmortem to establish that the death was homicidal. There is one more aspect which goes against the prosecution. The prosecution has not been able to establish that the dead body which was found in the tin box was that of Payal, the wife of the accused and we shall deal with this aspect. 14. In order to establish the identity of the dead body found in the tin box on 16/9/2002 as that of Payal, the prosecution and the trial Judge has relied upon the evidence of the photographer of PW 10 Ganesh Mane. He deposed that he was having his shop at Indiranagar, W.E. Thane. In November, 2003 the police officer attached to W.E. Thane Police Station had given him two photographs of two different ladies and one photograph of dead body in decomposed condition for comparison and he was told that the names of two ladies were Payal Shaikh and Pinky Thakur. He was asked to compare those photographs with the photograph of dead body. He compared the pohotographs of Payal and Pinky and photograph of dead body on his computer. He found one black thread over the neck of dead body and also found same type of black thread on the photograph of Payal Shaikh. After comparison of those photographs he came to the conclusion that photograph of dead body was of deceased Payal Shaikh on the basis of black thread. He was shown photograph of dead body (Article-A) which was given by police for comparing and he identified the same. He further stated that the police had also given him an enlarged copy of photograph of Payal Shaikh and it was similar to the photograph Article-B shown to him. He was shown photograph of dead body (Article-A) which was given by police for comparing and he identified the same. He further stated that the police had also given him an enlarged copy of photograph of Payal Shaikh and it was similar to the photograph Article-B shown to him. In the cross-examination the witness admitted that the dead body shown in the photograph which was given to him was totally decomposed and face of the dead body was beyond identification. He admitted that his opinion was based only on that fact that same type of black thread was found in the photograph of dead body and that of Payal Shaikh. 15. Upon a close scrutiny of the evidence of PW 10 Ganesh Mane, we find it extremely difficult to hold that the dead body found in the tin box was that of Payal Shaikh. Firstly identification is only on the basis of black thread which was noticed both in the photograph of dead body and that of Payal Shaikh. A black thread is available in the market and there is nothing special about it and as such identification solely on the basis of black thread in both the photographs is inherently unsustainable. Moreover the record does not disclose that in the course of investigation the photographs which were shown to PW 10 Ganesh Mane were seized. It is elementary that in case the prosecution seeks to rely upon any article or document against the accused the same has to be seized by the investigating agency under a panchnama. In the absence of any such evidence, no reliance can be placed on the photographs upon which reliance was placed by PW 10. Moreover these photographs were not shown to any of the prosecution witnesses, more particularly PW 4 PW 5 and PW 7. Therefore, second circumstance also does not stand proved. 16. We shall now consider whether prosecution has been able to establish circumstance No. 3 and 4. In order to prove the third circumstance, i.e. The accused was residing with his wife and daughter at Room No. 405 of Taj Mahal Apartment at Kisannagar No. 2, W.E., the prosecution examined PW 7 Datoba Dende who deposed that he knew the accused. In the year 2002 the accused was brought to him by PW 5 Jagdishprasad Pokriya since he required one room on rental basis for his residence. In the year 2002 the accused was brought to him by PW 5 Jagdishprasad Pokriya since he required one room on rental basis for his residence. He took Rs.10,000/- deposit from Jagdishprasad and gave the room to the accused on rental basis. The accused along with his wife and daughter started residing in the room and they resided for about 10 to 11 months. Thereafter Jagdishprasad handed over the keys to him. He further deposed that he could not remember the exact date when the accused took his room. Thereafter he had never seen the accused and his wife. In the cross-examination he stated that he had no document to substantiate that he had given the room to the accused. He was also confronted with the police statement where he had stated that the accused had handed over the key of his room to him, telling him that he along with his wife was proceeding towards his village. The accused could not give any reason why such fact was mentioned in the statement. He denied the suggestion that he was deposing falsely. 17. PW 5 Jagdishprasad Pokriya deposed that he was having tailoring shop in Kisannagar No. 2 and adjacent to his shop he had another shop in which he was running S.T.D. booth prior to 2002. He knew the accused since 2001 since he was working in Taj Mahal building as a tailor in front of his shop. The accused used to come to his S.T.D. booth for phone-calls. The accused demanded his tailoring shop on leave and licence or on rental basis. He had given his shop to the accused on rental basis for a period of 11 months and had taken deposit of Rs. 10,000/- from the accused. He used to collect the rent of Rs. 2,000/-per month from the accused. He further stated that he used to sit in his S.T.D. Booth. After about 5 to 6 months the accused along with his wife came to him and asked him whether he could find accommodation for them. He introduced PW 7 Datoba Dende, who had a room vacant in Taj Mahal building. Thereafter the accused started residing with his wife in the room at Taj Mahal building belonging to PW 7 Datoba Dende. He introduced PW 7 Datoba Dende, who had a room vacant in Taj Mahal building. Thereafter the accused started residing with his wife in the room at Taj Mahal building belonging to PW 7 Datoba Dende. He further submitted that on 6/9/2002 the accused told him that he was intending to go to his native place as he was not keeping well and, therefore, he should settle his account. He accordingly settled the account. Thereafter he did not see the accused or his wife Payal in Kisannagar area. In cross-examination the witness stated that he could not state in which month the accused had taken his shop on rental basis. He admitted that he had not stated to the police that the accused used to come to his S.T.D. Booth for making calls or that the accused used to reside in the building situated in front of his shop and, therefore, he was acquainted with the accused. He denied the suggestion that the accused was deposing falsely that the accused was married or that he had taken on rent his tailoring shop or that he had introduced him to his friend Dende. The witness denied that he was deposing falsely at the instance of the police. 18. The prosecution also examined PW 4 Lalita Pardeshi, who was having Laundary and Milk business at Kisannagar. She deposed that accused was having his tailoring shop adjacent to her shop and he was also known as 'Manik'. The accused was running tailoring shop on rental basis and it was at a close distance from her shop. The accused was running his shop about one year prior to the incident. She knew Payal, the wife of the accused. Payal used to give clothes of the accused in her laundary for ironing. The accused and Payal used to reside in Taj Mahal building on the 4th floor at Kisannagar, Thane adjacent to her laundry shop. Payal was having one daughter. Payal used to tell her that the accused did not provide money for household expenses and she will have to work in Bar for meeting expenses of her daughter and that accused was objecting to her working in the Bar and had threatened her that if she goes to the Bar for work, he will kill her. He further deposed that she opens her shop at about 4 a.m. everyday. He further deposed that she opens her shop at about 4 a.m. everyday. On one Friday, she opened the shop at about 4 a.m. She had seen the accused along with the other person bringing down a tin box from the fourth floor. She saw both of them keeping the tin box in a rickshaw near Taj Mahal building on the ground floor. She asked the accused as to where he was taking the tin box to which he replied he was going to leave his friend at the railway station and his friend was proceeding towards his village. She saw the accused and the another person taking the tin box in one rickshaw towards Road No. 16 of Wagle Estate. The tin box was about 3.5 feet to 4 feet. She identified the tin box which was shown to her as the same tin box. She further deposed that she had thereafter never seen the accused and his wife in Kisannagar area. In Cross-examination she stated that her statement was recorded on 1st November, 2003. She further stated that police had come to her and they were making inquiry about the tin box two months after the incident. The witness further stated that police had come to her two months after she saw the accused taking the tin box from his house. She further stated that her statement was recorded by Magistrate as well as by the police. She denied the suggestion that her statement that Payal was wife of the accused or that she had seen the accused along with one person while carrying tin box in one rickshaw at 4 a.m. was false. She denied that she was deposing falsely at the instance of police. 19. From the close scrutiny of the evidence of three witnesses, we have no hesitation to hold that the accused was residing in room No. 405 of Taj Mahal building which was belonging to PW 7 Datoba Dende and after residing there with his wife for some time left the place. However, we find it extremely difficult to accept the testimony of PW 4 Lalita Pardeshi to the effect that she had seen accused and one more person carrying one tin box in a rickshaw at about 4 a.m. on Friday as claimed by her. However, we find it extremely difficult to accept the testimony of PW 4 Lalita Pardeshi to the effect that she had seen accused and one more person carrying one tin box in a rickshaw at about 4 a.m. on Friday as claimed by her. Moreover she categorically stated that police had come to her about two months after she saw the accused carrying the tin box. If the prosecution story is accepted the dead body of Payal was carried in a tin box prior to 16/9/2002, since the dead body was found on 16/9/2002. However, the witness herself states that her statement was recorded on 1st November 2003. Therefore, it is difficult for us to place reliance upon the testimony of PW 4 Lalita Pardeshi and hold that she has seen the accused carrying a tin box along with other person at about 4 a.m. on Friday prior to 16/9/2002. Therefore, in our considered opinion though the prosecution has been able to establish that in the year 2002 the accused was residing with his wife in room No. 405 of Taj Mahal building, the prosecution has not been able to establish that the accused was seen carrying tin box along with one more person and that upon being questioned by PW 4 Lalita Pardeshi, he replied that he was going to drop his friend at the railway station. 20. The fifth circumstance relied upon by the prosecution is that the accused had purchased the tin box in which the dead body was found from PW 8. In order to prove this circumstance, the prosecution has relied upon the evidence of PW 8 Mohammed Rafique Mustafa Chaudhary and PW 9 PI Bhaskar Pingat. 21. PW 9 PI Bhaskar Pingat deposed that in the course of inquiry with the accused, the accused replied that he had purchased the tin box from one shop at Bhandup. He, therefore, took the accused to the shop from which the accused had purchased the tin box. The owner of the shop PW 8 Mohd. Rafique Mohd. Mustafa Chaudhary identified the accused and told him that the accused had purchased the tin box from his shop for Rs.400/-. PW 8 Mohd. Rafique Mohd. Mustafa Chaudhary told him that he prepared the bill but on 12/9/2002 accused and his friend without taking bill had taken the box from his shop on their motor-cycle. Rafique Mohd. Mustafa Chaudhary identified the accused and told him that the accused had purchased the tin box from his shop for Rs.400/-. PW 8 Mohd. Rafique Mohd. Mustafa Chaudhary told him that he prepared the bill but on 12/9/2002 accused and his friend without taking bill had taken the box from his shop on their motor-cycle. He further deposed that the box was identified by Mohammed Chaudhary in the police station as the box which was sold to the accused. 22. PW 8 Mohd. Rafique Chaudhary deposed that he was residing at Bhandup and was having his shop by name 'Vakas Trunk' at Bhandup. He used to sell tin box and also used to prepare tin box as per the orders. He further deposed that he knew the accused, who in the year 2002 had come to his shop along with one person and had purchased one silver coloured tin box from his shop for Rs.400/-. He asked his name for making the bill. The accused disclosed his name as Manik. However, the accused did not take the bill but only took the tin box on a motor-cycle. The box was having length of 32 inches and height of 13 inches. He identified the tin box Art.-1 as the tin box sold to the accused. He further deposed that the accused was brought to his shop by the police and the police had made inquiry with him regarding the purchase of tin box. He further deposed that tin box was shown to him by the police and he had also identified the same. He further stated that the police had seized receipt (Exh.-29) dated 12/9/2002 from him. In cross-examination the witness admitted that there was no identification mark on the tin box but he stated that he identified the tin box since it was manufactured in their factory. He admitted that the tin box was available in the market since similar tin box was manufactured by other factories. He further stated that his statement was recorded on 28/10/2003. He further stated that he did not maintain the record of the year 2002. He denied that he was deposing falsely that the accused had purchased tin box from his shop He denied that he had prepared false receipt Exh.-29. He further stated that his statement was recorded on 28/10/2003. He further stated that he did not maintain the record of the year 2002. He denied that he was deposing falsely that the accused had purchased tin box from his shop He denied that he had prepared false receipt Exh.-29. He also denied the suggestion that the accused and his friend had neither come to the shop nor purchased the tin box from his shop. 23. Perusal of delivery bill which is delivery challan (Exh.-29) discloses that at the top of the challan name Manik is written and at the foot of the receipt there is a signature of one Md. Rafique and the date 12/9/2002 below the signature. The signature appears by the side of the words 'Receiver's Signature'. We find it extremely difficult to place reliance upon the testimony of Mohammed Rafique Chaudhary inasmuch as he claims when the accused took the tin box he did not take the signature below the receipt. If this is the case, we fail to understand as to how signature of Md. Rafique could appear against the 'Receiver's Signature'. Moreover perusal of the receipt discloses that it is not a copy of the original. If the version of PW 8 Md. Rafique Chaudhary was true then obviously the original as well as the copy would have been in his possession of. 24. Moreover, it is not the case of PW 8 that the accused had placed order for the tin box and pursuant to the said order tin box was manufactured. Therefore, we find it extremely difficult to place reliance upon the evidence of Md. Rafique Chaudhary to the effect that the accused had purchased the tin box (Art.-1) from him for Rs.400/- on 12/9/2002. 25. There is one more aspect which creates serious doubt about the testimony of this witness. In cross-examination he has clearly admitted that he did not maintain the record of the year 2002. This is one more reason no to accept the testimony of this witness. 26. In so far as the evidence of PW 9 PI Bhaskar Baban Pingat is concerned, firstly there is no panchnama drawn pursuant to the alleged statement made by the accused that he had purchased the tin box from one shop at Bhandup. This is one more reason no to accept the testimony of this witness. 26. In so far as the evidence of PW 9 PI Bhaskar Baban Pingat is concerned, firstly there is no panchnama drawn pursuant to the alleged statement made by the accused that he had purchased the tin box from one shop at Bhandup. PW 9 was bound to record a panchnama before proceeding to the shop from where the accused had allegedly bought tin box before proceeding to the shop. Insofar as identification of the tin box by PW 8 in the police station is concerned, the same obviously is inadmissible in evidence in view of the bar contained in Section 161 of Cr. P.C. Therefore, in our considered opinion the prosecution has not been able to establish that the accused purchased the tin box (Art.-1) from PW 8. 27. The next circumstance relied upon by the prosecution is that the place from where the dead body was found was shown by the accused. In order to prove this fact, the prosecution examined PW 3 Dhondiba More, who turned hostile and did not support the prosecution case. In any case no reliance can be placed on this circumstance inasmuch as the place where the tin box with the dead body was found was already known to the investigating agency on 16/9/2002 and as such question of the accused pointing out the same on 13/10/2003 does not arise. 28. The prosecution has also relied upon the evidence of PW 2 Dolly Thakur and PW 6 Raj Thakur, who claimed that deceased Pinky was their sister who was working as a dancer in Red Rose Bar at Kalyan and used to reside at Dombivali. Both of them claimed that somewhere in September, 2002 one dead body was shown to them at Civil Hospital, Thane. They were shown the clothes and the ring on the dead body and they identified the ring of Pinky and on that basis identified the dead body as that of their sister 'Pinky'. PW 6 Raj Thakur deposed that the body was decomposed and could not be identified. He further deposed that the dead body was cremated by them and later on they came to know that it was not the dead body of their sister but was that of some other woman. 29. PW 6 Raj Thakur deposed that the body was decomposed and could not be identified. He further deposed that the dead body was cremated by them and later on they came to know that it was not the dead body of their sister but was that of some other woman. 29. The evidence of above two witnesses, instead of supporting the case of the prosecution, demolishes the prosecution case. Their evidence establishes that they identified the dead body on the basis of the gold ring which according to them was belonging to their sister Pinky. In other words both these witnesses identified the dead body found in the tin box on 16/9/2002 as that of their sister Pinky. There is absolutely no evidence on record that Pinky and Payal was one and the same person. Therefore, as stated above, the evidence of these two witnesses instead of supporting the case of the prosecution completely goes against the prosecution. 30. Thus upon re-appreciation of the entire evidence except for the circumstance that, the accused was residing with his wife in Room No. 405 in Taj Mahal building in the year 2002, no other circumstance against the accused has been proved. The prosecution has not also led any evidence to establish that any investigation was carried out in relation to the whereabouts of Payal who with the accused at Taj Mahal building in the year 2002. 31. It is well settled by catena of decisions of the Apex Court that in a case based on circumstantial evidence, the prosecution has to establish conclusively the circumstances from which the guilt of the accused has to be established and the circumstances must exclude any hypothesis other than the guilt of the accused. 32. Having regard to the prosecution evidence, we find it extremely difficult to hold that it was the accused who committed the murder of his wife Payal and caused disappearance of the evidence of murder by keeping her dead body in one tin box and throwing it in the bushes with the intention of screening himself from legal punishment. Therefore, in our considered opinion, the offences punishable under Sections 302 and 201 of IPC are not made out against the accused. Therefore, the conviction of the accused for which offence punishable under Section 302 and 201 of IPC and the sentences imposed on him are liable to be quashed and set aside. Therefore, in our considered opinion, the offences punishable under Sections 302 and 201 of IPC are not made out against the accused. Therefore, the conviction of the accused for which offence punishable under Section 302 and 201 of IPC and the sentences imposed on him are liable to be quashed and set aside. 33. In the result, therefore, the following order is passed; Appeal is allowed. The conviction of the appellant/accused for the offences punishable under Sections 302 and 201 of IPC and the sentences imposed on him for the said offences by judgment and order dated 2/9/2004 passed by 2nd Adhoc Addl. Sessions Judge, Thane, in Sessions Case No. 207/2004 are quashed and set aside and the accused-appellant Akhtarali @ Manik Ashrafali Shaikh is acquitted of the said offences. Fine amount, if any, paid by the accused is ordered to be refunded to the accused. The order passed by the learned trial Judge insofar as disposal of property is concerned is maintained. The appellant/accused Akhtarali @ Manik Ashrafali Shaikh is ordered to be set at liberty forthwith, if not required in any other case. Appeal stands disposed of.