JUDGMENT 1. Heard both sides. Perused the record. 2. The applicant was charged for commission of offence under section 302 of IPC. It is alleged that he had committed murder of Jyoti Radheshyam Tripathi in the flat which was her residence, at about 9.30 pm on 13.4.2009 by throttling her neck by me of cable. 3. FIR was lodged by Radheshyam – P.W.1. The prosecution has examined 12 witnesses. 4. Cause of death as has revealed from post mortem notes and medical evidence, is asphyxia due to strangulation with a cable or and wire and it is not due to hanging. 5. Case proceeds in the background that there are no eye witnesses and entire thrust is on the circumstantial evidence. 6. P.W.6 Amita and P.W.11 Mrs. Lalita gave a version which even Sessions Court has found those to be hear say. 7. Witnesses who are named to be proximate to the scene of offence are :- – P.W. 1 - Radheshyam Tripathi. – P.W.10 - Parmindarsing (Neighbour) – A Hawaldar who had arrived on the spot and expressed the body (of Jyoti) was warm and she should be taken to hospital. 8. P.W.10 has stated in his evidence as follows:- “2. On 13.4.2009 I was present at my house. At about 10.30 pm I learnt knocking the door of the house of Tripathi. Knocking was for long duration and call was given loudly. I opened my door and inquired as to “What happened uncle?” Uncle told Jyoti is not opening the door. I told him to give call on mobile. He replied that many calls are given but not received. Lalit was standing down. Uncle asked Lalit to enter in the house from the window and open the door. He entered from the window. He also asked me to help Lalit. Myself and Lalit went to the backside of the house. We called ladder from the watchman. The said watchman came to me and told that the other watchman is not giving ladder as he is taking food. Lalit was climbing but he could not climb. I gave support to him from lower side and therefore Lalit climbed. By opening the window Lalit entered in. Thereafter I came on the first floor. The door was opened. I saw from the door from the distance of two-three feet. Jyoti was lying on the floor. Odhani was rounded to her neck. I gave support to him from lower side and therefore Lalit climbed. By opening the window Lalit entered in. Thereafter I came on the first floor. The door was opened. I saw from the door from the distance of two-three feet. Jyoti was lying on the floor. Odhani was rounded to her neck. Tripathi told me to go and call police. I went to the police station. 3. Cross examination It is not true to say that when I came on the first floor after climbing Lalit I noticed that Jyoti was hanging to the ceiling fan. On the second day police recorded my statement. It is not true to say that I am deposing false.” (quoted from page 179 of paper-book) 9. All that P.W.10 Parmindar proves that:- (a) Accused was given access to the flat on 1st floor house of P.W.1 through window of the kitchen without any ladder etc. (b) He came on 1st floor and saw inside from 2 to 3 feet that Jyoti was lying on the floor with Odhani around her neck. 10. P.W.1 – Radheshyam gave details of his contact with Jyoti on cell phone and also with the accused on the day and prior to visit to his own flat, and then tells whatever happened when he alongwith accused reached the venue. 11. The version of P.W.1 adverbatim with sub-paras made for convenience, reads thus : “3. On 12.4.2009 I was at Nasik. I start for Nasik at 10.30 am to 11 am from my house. I went to my bungalow at Nasik. I started for return journey from Nasik on 13.4.2009 at 3.30 pm to 4 pm by bus. I had taken ticket upto Kalyan. I reached at Kalyan at 9 pm When I started from Nasik I had possessed cash of Rs.1,00,000/-. I telephoned to Lalit from bus and informed him that I am having cash Rs.1,00,000/- with me, you do come at Kalyan. I received telephone from my daughter Jyoti at 6.30 pm, she informed that Lalit is coming to Kalyan. I asked her you also do come with him, we will take dinner in a hotel. When I reached near about Kasara, I telephoned to Lalit at 7.30 pm. Lalit explained me on telephone that Jyoti came to me, there was quarrel between me and her, she caused abrasion to my neck by nails. I asked her you also do come with him, we will take dinner in a hotel. When I reached near about Kasara, I telephoned to Lalit at 7.30 pm. Lalit explained me on telephone that Jyoti came to me, there was quarrel between me and her, she caused abrasion to my neck by nails. (Learned counsel for accused has raised objection that the conversation of accused with the complainant cannot be recorded. Objection overruled). There was birth day of Abdul. I told Lalit that I will give understanding to Jyoti. I telephoned to Jyoti at 8 pm. Jyoti had not received my call. Ring tone was there. There was Cell number of company of Jyoti having number 9223513565. She had given this number to me. Therefore, I called her on this phone number. My cell number was 9322077069. Accused was having two phone numbers one of Vodaphone and another of Kalyan at 9.15 pm. He met with me. In inquired with Lalit as to why Jyoti has not came. He told me that she is in angry mood. I came to my house in the vehicle of Lalit of Hundai Co. I knocked the door. The door was not opened. Neighboring persons gathered. I told them Jyoti is not opening door. I do not know what happened. Lalit was with me. Babbal is my neighbour. I asked Lalit to go from the window of kitchen in the house and open the door, I had told this fact to Lalit and Babbal. Lalit entered in the house from the window of kitchen. After 15 minute door opened. My daughter Jyoti was lying on one side on the floor in the Hall. Some part of Odhani was attached to the fan and some part of Odhani was rounded to the neck of Jyoti. I inquired with Lalit “Pankha is her, my daughter is lying there, how it is ?” He told me that he cut Odhani. One iron press was lying there. Myself and Lalit went to police station and I informed the incidence to police. Police sent one Hawaldar with me. We went to house Hawaldar told me “body garam hai, we should take her to hospital”. I told Lalit we will take Jyoti to hospital. Lalit told me that his vehicle is felled in a drainage. Therefore, I called auto. I carried Jyoti to M.G.M Hospital. Police sent one Hawaldar with me. We went to house Hawaldar told me “body garam hai, we should take her to hospital”. I told Lalit we will take Jyoti to hospital. Lalit told me that his vehicle is felled in a drainage. Therefore, I called auto. I carried Jyoti to M.G.M Hospital. Hawaldar was also with us. Doctor examined her and declared that she is dead. Police officers came to the hospital. The dead body was sent for postmortem at Panvel Municipal Hospital. It was informed that the postmortem will be held in the morning. I went to the Panvel Municipal Hospital in the morning. Postmortem took place. Dead body was handed over to me. I kept dead body in Dhirubhai Ambani Hospital, My wife came. In the evening funeral took place. In the night I went to police station and lodged report. I filed report against Abdul and Lalit. Now complaint is shown to me. It is the same. It bears my signature, contents are true and correct. It is at Exh.48. I can identify Odhani and iron press. Odhani now shown to me, it is the same. Odhani is Article No.1. Iron press now shown to me, it is the same. It is Article No.2. Cross examination 4. It is not true to say that I had informed to police that accidental death is caused. I do not know that police has written suicide is committed. It is not true to say that I am concealing true facts.” (quoted from page 131 to 133 of the paper-book) 12. Neighbour Mr. Babbal, the watchman and Hawaldar referred to in the evidence of P.W.1 Radheshyam are not cited as witnesses and are not examined. 13. Cell phone records of accused, P.W.1, deceased Jyoti and all those who may have had conversation with those persons are not collected/investigated or brought before the court. 14. On matching the oral evidence of P.W.10 with the evidence of P.W.1 following disparity is noticed:- P.W.1 says that Accused was inside the flat for 15 minutes. P.W.1 does not say or support it. P.W.10 says that he helped the accused to enter the window and arrived at the door of flat of P.W.1 on 1st floor and found that the door is open and saw Jyoti lying on the floor. 15. P.W.1 does not say or support it. P.W.10 says that he helped the accused to enter the window and arrived at the door of flat of P.W.1 on 1st floor and found that the door is open and saw Jyoti lying on the floor. 15. In view that other witnesses, namely, Babbal, watchman and the Hawaldar are not examined, entire thrust of prosecution is on the evidence of P.W.1 Radheshyam. 16. The span of time during which according to P.W.10 the accused was inside the flat is to be ascertained from the testimony of P.W.10. His sole testimony as well could be believed had it been corroborated and atleast not been brought under shadow of doubt. If the testimonies of P.W.1 and P.W.10 are cross matched, version of P.W.1 that the accused was inside the flat for 15 minutes comes under grave shadow of doubt. 17. It is seen that paragraphs 121 and 122 of the judgment of Sessions Court are the foundation of conviction. 18. Considering the total mismatch in the evidence, the guilt of accused is neither proved nor corroborated. All that can be said is that the accused is convicted on the basis of suspicion than on concrete evidence. This is not a case where the accused has to be given a latitude due to some doubt. It is rather a case of no evidence and also that the prosecution did not make efforts to search the truth or gave a tacit consent for suppression of truth. 19. In this background the accused is entitled to be acquitted and is acquitted of the charge. The impugned judgment and order passed by the Additional Sessions Judge-1, Raigad dated 24.4.2013 is set aside. The appellant be set at liberty forthwith.