JUDGMENT : A.R. Joshi, J. 1. Heard rival arguments at length on earlier dates. Perused the record and proceedings. Also gone through the detailed evidence of prosecution witnesses recorded during the trial. Present appeal is preferred by the appellant/sole accused challenging the judgment and order of conviction dated 13.10.2006 passed by the 11th Adhoc Additional Sessions Judge for Greater Mumbai at Sewree in Sessions Case No.1093/1996. By the impugned judgment and order, the present appellant/accused was convicted for the offence punishable under Sections 302 and 326 of Indian Penal Code. For the former offence, he was sentenced to undergo life imprisonment and to pay fine of Rs.500/in default to suffer RI for three moths. For the later offence, he was sentenced to suffer RI for five years and to pay fine of Rs.200/, in default to suffer RI for one month. Both the substantive sentences were directed to run concurrently. Apparently from the date of the arrest of the appellant/accused i.e. from 13.8.2002 till today the appellant/accused is in custody. 2. The case of the prosecution in nutshell is as under : On 18.9.1996 one PSI Mahesh Desai then attached to MIDC police station, Mumbai was on duty on a police mobile van. At about 11:25 a.m. he received a message from North West control room informing that some commotion has taken place in a building in Sunview Apartment, behind Regent Hotel, Y.A.C. Nagar, Andheri (East). He rushed to the spot. One woman by name Sujata Stanly Mani, Secretary of Sunview Cooperative Housing Society met and informed him that one woman by name Sumitra Divekar (PW10) residing in flat No.104 on 1st floor of "B" wing was assaulted by somebody and she was taken to the hospital. Secretary Smt.Sujata Stanly Mani also informed the police officer regarding trickling of blood from the drainage pipe connected to the hall of flat No.102. She further informed that she rang the door bell of flat No.102 but did not get any response. On noticing the situation and revealing the information from the Secretary of the building, PSI Mahesh Desai (PW1) rushed to flat No.102 from where, according to the information, the blood was trickling from the drainage pipe. He ranged the door bell but received no response from inside. On noticing the situation and revealing the information from the Secretary of the building, PSI Mahesh Desai (PW1) rushed to flat No.102 from where, according to the information, the blood was trickling from the drainage pipe. He ranged the door bell but received no response from inside. The door of the said flat was then broken open suspecting some foul play and entering the flat No.102 he noticed dead body of one male person who was subsequently identified as Madhavan Nair and dead body of one woman in kitchen room, who was subsequently identified as Kamala Nair. Both the dead bodies were lying in a pool of blood and having severe bleeding injuries on their heads. It was also noticed by the police officer that lot of blood had already collected in the flat and it was trickling from the pipe attached to the flat. On inspection of the bodies, the officer ascertained that both the persons were dead. Said incident was immediately informed to the control room and to the MIDC police station. Subsequently said PW1 PSI Mahesh Desai lodged his First Information Report (Exh.8). It was lodged on 18.9.1996 at about 11:40 hours. 3. In the meantime, one PSI Pradip More (PW11) from MIDC police station received message from the control room and as such he rushed to the Sunview Cooperative Housing Society along with PI Dhage (PW12), Senior PI Gaikwad and PI Avate and other police staff. These police officers met PSI Mahesh Desai in the flat and ascertained the situation as to lying of two dead bodies of elderly couple in flat No.102. 4. On the basis of complaint lodged by PSI Mahesh Desai, investigation was carried out after registration of C.R. No.197 of 1996. The finger print experts were called and chance finger prints were found on the cupboard in flat No.102. Scene of offence panchnama was drawn. So also inquest panchnamas were drawn of both the dead bodies. Blood stained clothes from the person of the deceased were taken charge of. Both the bodies were sent for postmortem. In the meantime, the Secretary of the building Sujata Stanly Mani who was present on the spot informed the police party that some blood was lying in flat No.104 and one Sumitra Divekar (PW10), resident of said flat No.104 was taken to the hospital as she was also assaulted by somebody. Both the bodies were sent for postmortem. In the meantime, the Secretary of the building Sujata Stanly Mani who was present on the spot informed the police party that some blood was lying in flat No.104 and one Sumitra Divekar (PW10), resident of said flat No.104 was taken to the hospital as she was also assaulted by somebody. Consequently the police staff visited flat No.104 and carried out routine investigation as to drawing of panchnama, during which one small ironrod lying in flat No.104 was seized. Said ironrod is Article No.2 before the Court. According to the case of prosecution apparently this is the ironrod which was used by the appellant/accused in order to assault PW10 Sumitra Divekar and probably it was the same weapon used for assaulting the elderly couple in flat No.102 and causing their death. 5. According to the case of prosecution, the elderly couple i.e. Madhavan Nair and his wife Kamala Nair were residing in Flat No.102 of 1st floor, "B" Wing of Sunview Apartment and their son by name Sunil and daughter by name Sheela Nambhiar were residing in the adjoining building in the same housing society complex. PW10 Sumitra Divekar was also residing in flat No.104 which is adjacent to flat No.102. In fact the distance between these two flats is hardly 3 feet or so. Said Sumitra Divekar and the elderly couple were known to each other for long and were always visiting each other. Also according to the prosecution, present appellant/accused by name Babu was frequently visiting the house of the deceased as is revealed through the substantive evidence of PW10 and also through the enquiries with the relatives of the victim couple. According to the case of prosecution on 18.9.1996 i.e. on the fateful day, PW10 had visited the house of the deceased couple when woman Kamala Nair was present alone and her husband Madhvan Nair had gone out. After sometime Madhavan Nair returned home and all the three started chatting with each other. Thereafter present appellant/accused knocked the door of flat No.102 and he was allowed to enter by deceased Madhavan Nair as they were acquainted with each other. As such, after entering the flat the appellant/accused started talking with Madhavan Nair and then PW10 Sumitra Divekar left the flat and went to her flat No.104 which is adjacent and next door to flat of the couple. As such, after entering the flat the appellant/accused started talking with Madhavan Nair and then PW10 Sumitra Divekar left the flat and went to her flat No.104 which is adjacent and next door to flat of the couple. After sometime she came out of her flat to find out whether vegetable vendor had come in the Society area. That time she heard a noise of something like an ironrod falling on the ground and said noise came from flat No.102. That time the door of flat No.102 was closed. She rang the door bell but did not get any response from inside. So also the door was not opened. Then she returned back to her flat and again after some time i.e. after about ten minutes when the door bell of her flat No.104 rang, she noticed through the magiceye of the door that the appellant was standing outside her door. She opened the door with safety chain and had a talk with the appellant/accused as to why he had came to her flat. At that juncture after some talk, the appellant/accused asked for a glass of water and on this PW10 Sumitra Divekar removed the safety chain from the entrance door and allowed the appellant/accused to enter and she proceeded to her kitchen to fetch a glass of water. That time suddenly the appellant/accused caught hold of her and made her to fell on ground and squatted on her chest and pressed her mouth and gave blows on her head with something like iron 8 rod. Apparently this was the ironrod which was found in her flat No.104 when the police party had arrived and conducted the panchnama. At this juncture, it must mentioned that said ironrod is having dimensions as length about 4 inches and diameter of 1 inch. It is made up of heavy MSsteel and is solid without having any hallow portion. According to the case of prosecution, this ironrod is apparently the weapon of offence for causing injuries to PW10 and apparently used by the accused in assaulting the couple, we had carefully examined the said ironrod which is Article No.2 when it was produced before the Court during the arguments. According to the case of prosecution, this ironrod is apparently the weapon of offence for causing injuries to PW10 and apparently used by the accused in assaulting the couple, we had carefully examined the said ironrod which is Article No.2 when it was produced before the Court during the arguments. The dimensions and the solid structure of the ironrod is ascertained by us and it is found that it is definitely a heavy object with sharp margins at the ends and the rod is cylindrical in shape. 6. According to the case of prosecution when the appellant/accused started assaulting PW10 Sumitra Divekar on her head, she raised shouts and tried to rescue herself from his clutches and in the process she manged to kick the appellant/accused between his legs on his private part. Due to such impact of kick, apparently the appellant/accused lost his grip over PW10 and ran away from Flat No.104 leaving behind the ironrod in a hurry to escape from the place sensing danger of being caught due to the shouts raised by PW10. 7. It is also the case of prosecution that while the appellant/accused was getting down from the first floor of the building from Flat No.104 he was accosted by PW3 one Nagesh Shetty and sensing some foulplay said PW3 enquired with the appellant/accused as to what had happened. On this according to PW3 the appellant told him to call for the watchman and then swiftly ran away from the place and escaped. Apparently according to the case of prosecution after the arrest of the appellant/accused after six years when he was put to test identification parade, said PW3 had identified him as the person running down the stairs on the day of the incident and escaping from the spot. At this juncture, it must be mentioned that this part of the prosecution case was not taken as an incriminating circumstance against the appellant/accused for the reasons specifically detailed in the impugned judgment and order. Detailed discussion on this aspect shall be dealt with at the appropriate place hereunder. 8. It is also the case of prosecution that PW10 Sumitra Divekar was taken to Mukund Hospital by PW3 Nagesh and one Standly Mani (PW6) for immediate medical treatment. On that evening at about 6:00 p.m., PW10 attended the MIDC police station after she got discharged from the hospital after taking treatment. 8. It is also the case of prosecution that PW10 Sumitra Divekar was taken to Mukund Hospital by PW3 Nagesh and one Standly Mani (PW6) for immediate medical treatment. On that evening at about 6:00 p.m., PW10 attended the MIDC police station after she got discharged from the hospital after taking treatment. At the police station she narrated the incident. Her statement was recorded by PW12 police officer PI Dhage. In her statement, she expressed suspicion on the appellant/accused giving his name as Babu as the assailant of the deceased couple. She also stated that said Babu i.e. appellant/accused was definitely her assailant who caused injuries on her head and then left her flat dropping the iron rod (article No.2) in her flat. By that time of recording of the statement of PW10 the offence was already registered under C.R. No.197 of 1996 on the first information report lodged by PW1 PSI Mahesh Desai. Till that time of recording of her statement, there was no clue on the actual assailant. However, it was ascertained after recording the statement of PW10 that it was act done by the present appellant/accused who was by then known to the police as Babu and who was frequently visiting the house of the victim couple. Though it was to the knowledge of the investigating agency regarding the name of the assailant as Babu and description of said Babu from the statement of PW10, there was no trace of said Babu as to his whereabouts for want of his complete name and address though it was revealed during the investigation that he was from the same native place as that of victim Madhavan Nair. Statements of son and daughter of the victim couple were also recorded. Search for the appellant/accused was conducted but without any success. As such 'Asummary' report was filed before the concerned M.M. Court No.10, Andheri on 27.2.1998. As such, vide order bearing No.30/CLF/98 said 'Asummary' was accepted and the investigation was closed for the time being for want of whereabouts of the assailant. 9. It is also case of the prosecution that subsequently the present appellant/accused was arrested sometime in July, 2002 by D.N. Nagar police in the matter of offence punishable under Section 302 of IPC in C.R. No.431/2002. 9. It is also case of the prosecution that subsequently the present appellant/accused was arrested sometime in July, 2002 by D.N. Nagar police in the matter of offence punishable under Section 302 of IPC in C.R. No.431/2002. During investigation in the said matter, it was revealed that the present appellant/accused had committed an offence in the present case registered with MIDC police station. Accordingly D.N. Nagar police informed MIDC police and thereafter by making an application to the concerned Magistrate Court, the appellant/accused was taken in custody by MIDC police in the present C.R. No.197/1996. As such, present appellant/accused was arrested in the present matter on 13.8.2002 i.e. after about six years from the date of commission of double murder and injury to PW10. Permission to reinvestigate the matter by reopening the case closed under Asummary, was obtained. Police custody remand was taken. Blood samples of the accused were collected. According to the case of prosecution on 21.8.2002 the accused made voluntary statement to show the place of incident and accordingly he took the police party and panchas to flat Nos.102 & 104. When he was in custody he was shown to PW10 Sumitra Divekar and she identified him as her assailant. Her supplementary statement was recorded. So also supplementary statement of daughter of the deceased couple (PW2) was recorded during which she mentioned that ornaments worth Rs.2 lakhs were missing from the house of the couple i.e. her parents, since the day of the incident in which they died. At this juncture, it must be mentioned that the alleged voluntary statement and then discovery of the place of offence at the instance of the appellant/accused has not been taken as an incriminating circumstance against the accused by the trial Court. This is rightly so, inasmuch as, the said place of offence was already known to the police party and there was nothing like independent disclosure of new fact coming to the knowledge of the police. Moreover the alleged motive of theft was also not accepted by the trial Court and rightly so in our view for the reason that according to the case of prosecution the said motive was based on further supplementary statement of PW2 Sheela Nambiar, daughter of the victim couple wherein she disclosed for the first time that the articles and ornaments worth about Rs.2 lakhs were missing from the house of the couple. This alleged circumstance of missing of the articles was not brought to the notice of the police when her initial statement was recorded at the time of investigation when it was initially started. As such, apparently this was an afterthought to fortify the aspect of motive. In any event, these two circumstances are definitely not against the appellant/accused. 10. Also according to the case of prosecution, test identification parade was also held at the Arthur road jail at the hands of PW5 Amar Bahadur Singh, Special Executive Magistrate. Said test identification parade was conducted on 23.9.2002 i.e. after about five days of the arrest of the appellant/accused. In the said test identification parade, the identifying witness was only PW3 Nagesh Shetty who allegedly witnessed escaping of the appellant/accused from the building after the incident of killing of couple and deadly assault on PW10. Again at this juncture, it must be mentioned that this circumstance of identification of the appellant/accused in test identification parade by PW3 is also not considered as a clinching circumstance against the appellant/accused by the trial Court. Again this was rightly done by the trial Court in our view for the reason that admittedly according to the investigating officer after the arrest, the accused had taken the police party to flat Nos.102 and 104 on 21.8.2002. Admittedly according to the Investigating Officer at that time the accused was not taken in a veil and as such many residents of the building in the said society had gathered there. This circumstance was viewed by the trial Court to come to the conclusion that there was a possibility of PW3 seeing the appellant/accused in the building on 21.8.2002 and as such this circumstance dilute the effect of test identification parade which was subsequently held on 23.8.2002 i.e. immediately after two days of bringing of the appellant/accused to the spot of the offence. This test identification parade evidence is also rightly discarded by the trial Court. 11. After completion of investigation in the matter, chargesheet was filed before the M.M. Court and the matter was committed to the Court of Sessions and Sessions Case No.1093 of 2002 ended in conviction of the appellant/accused for the offence punishable under Section 302 of IPC and also for the offence punishable under Section 326 of IPC. This is the judgment and order challenged in the present appeal. 12. This is the judgment and order challenged in the present appeal. 12. Prior to appreciating the rival submissions and mainly the submissions of defence by the learned appointed Advocate Shri Arfan Sait, certain factual admitted position is required to be mentioned in order to ascertain scope of the matter : (i) It is a case of double murder coupled with the injuries caused to PW10 Sumitra Divekar on her head. So far as the offence of double murder is concerned, there is no direct eye witness in the strict sense of the meaning regarding commission of the said offence. However, so far as the assault on PW10 is concerned, she is injured eye witness and had noticed the appellant/accused entering her house and assaulting her on her head with the help of iron rod (Article No.2); (ii) So far as the offence of double murder is concerned, there is only the evidence of PW10 and that also to the effect of last seen together inasmuch as she had seen the appellant/accused Babu coming to flat No.102 belonging to the couple and having chitchat with victim Madhavan Nair and when the appellant/accused and Madhavan Nair were talking, she left the flat and went to her flat No.104 which is just adjacent at a distance of 3 feet. As such this last seen theory is required to be discussed critically in the light of the substantive evidence of PW10; (iii) There is no recovery at the instance of the appellant/accused either of the weapon of offence or of his clothes. As such this last seen theory is required to be discussed critically in the light of the substantive evidence of PW10; (iii) There is no recovery at the instance of the appellant/accused either of the weapon of offence or of his clothes. This was definitely on account of not finding the whereabouts of the assailant for about six years as admittedly he was taken in custody in the present matter after the intimation was given by the D.N. Nagar police to MIDC Police Station alleging involvement of appellant/accused in the present matter; (iv) The evidence of Test Identification Parade (TIP) is not incriminating against the appellant/accused for the reasons mentioned earlier and that apparently there was some opportunity for the identifying witness PW3 to see the appellant/accused on 21.8.2002 when he allegedly took the police party to flat Nos.102 & 104 for showing the place of offence; (v) Here in this case there is no motive established by the prosecution inasmuch as at the initial stage when the statement of PW2, daughter of the victim couple was recorded, she did not mention anything regarding stealing of any property or missing of any valuables and property from the flat. As discussed earlier, the motive was tried to be established by the prosecution only by way of supplementary statement of PW2 and as such this cannot be accepted being very weak type of evidence; (vi) It is not in dispute that the victim couple died of homicidal death. Moreover the postmortem reports of both the victims were admitted on behalf of the appellant/accused during the trial. The victim couple died due to the injuries sustained by them mainly on their head. At this juncture itself the injuries sustained by the victims and as appearing in the postmortem reports can be mentioned, as under : Injuries sustained by deceased Madhavan Nair : “TABLE” 13. Again at this juncture, the substantive evidence of Medical Officer PW9 Dr. Manik Sangle who performed the postmortem is of much significance. During his crossexamination when ironrod (Article No.2) was shown to him, he answered that the injuries found on the person of the deceased were possible due to such ironrod. On this aspect, much is argued on behalf of appellant/accused pointing towards the crossexamination of said PW9. Manik Sangle who performed the postmortem is of much significance. During his crossexamination when ironrod (Article No.2) was shown to him, he answered that the injuries found on the person of the deceased were possible due to such ironrod. On this aspect, much is argued on behalf of appellant/accused pointing towards the crossexamination of said PW9. The answers given by PW9 during his crossexamination are reproduced hereunder for the sake of ready reference in order to appreciate this argument : “ It is correct to say that incised wound is not possible by the weapon like mudemaal article ironrod. Cerebral hemorrhage is possible due to fall also in general. In case of incised wound the wound can be skin deep or muscle deep and bone deep.” By pointing out the above answers, it is submitted on behalf of the appellant that it is doubtful whether article No.2 ironrod was the weapon of offence and this is more so when it was not recovered at the instance of the appellant/accused and it has no any sharp cutting edge so as to cause incised wound. On this aspect we have carefully gone through the description of the injuries sustained by both the deceased and for that purpose they are detailed above. It must be mentioned that there was no clear cut understanding given by the Doctor performing the postmortem that those were the incised wounds found on the victims but they were incised like wounds. Though medically there cannot be anything like “incised like wound” or so, but, here on the available material as per the contents of para17 of the postmortem notes, such description is given. In our considered view definitely the wounds which were observed by PW9 on the dead bodies were not incised wounds in the strict sense of the meaning. Moreover in the crossexamination, which is detailed above, what was asked to PW9 that incised wound is not possible by the weapon like mudemaal article No.2 ironrod and the answer was affirmative. Again this answer cannot be taken that PW9 had opined that the injuries found on the victims were not possible by the article ironrod. On this aspect definitely a positive and clear answer should have been obtained from PW9 by asking him question that the injuries sustained by the victims were not possible by the article ironrod i.e. article No.2. Again this answer cannot be taken that PW9 had opined that the injuries found on the victims were not possible by the article ironrod. On this aspect definitely a positive and clear answer should have been obtained from PW9 by asking him question that the injuries sustained by the victims were not possible by the article ironrod i.e. article No.2. In view of this, there is no much force in the argument advanced on behalf of the appellant/accused that article No.2 is not the weapon of offence for the assault on the deceased victims. Otherwise also when PW10 is not an actual eye witness for inflicting of blows on the victim couple, whether or not the same iron rod was used by the assailant to assault the victim couple will not assume much significance. In other words, the case of the prosecution is that the assault on PW10 was definitely by article No.2 ironrod and the appellant/accused was the author of that assault and also he was the author of the assault on the victim couple, more so when the incident of last seen together appellant/accused with the victim couple and the assault on PW10 is in immediate proximity of ten minutes or so thus ruling out the possibility of any third person assaulting the victims. 14. Again on this aspect there is substantive evidence of PW10 that she heard the noise of falling of iron rod on the floor and said noise came from the flat No.102 and as such this circumstance strengthen the case of the prosecution as to accused having armed with the weapon (article No.2) entered flat No.102 and after doing away with the couple came to flat No.104, determined to see that there should not be any eye witness to his visiting the flat of the victim couple. This can be presumed from the another circumstance that the injuries to PW10 were only on her head and not any other parts of the body suggesting that the appellant/accused was determined to eliminate PW10 by assaulting on her head with the help of Article No.2 ironrod. On this aspect, the injuries sustained by PW10 are mentioned as under which are detailed in the substantive evidence of PW8 Dr. Ramchandra Prabhu in para1 of his notes of evidence which reads thus : “1. I am running 'Mukund Hospital' in Marol, Andheri. On this aspect, the injuries sustained by PW10 are mentioned as under which are detailed in the substantive evidence of PW8 Dr. Ramchandra Prabhu in para1 of his notes of evidence which reads thus : “1. I am running 'Mukund Hospital' in Marol, Andheri. On 18/9/96, a patient named Sumitra Divekar was admitted in my hospital at 11:20 a.m.. She had given history of alleged assault by known persons on head and big toe of right leg. On examination the patient had C.L.W. Measuring 2” x 1/4” on frontal part and C.L.W. of 1” x 1/4” on right parietal region. There was a swelling of right big toe. ….” Further in para6, said Doctor had opined that the injury sustained by the patient (PW10) was grievous in nature. Though the word “grievous” is used by the said Medical Officer, definitely from the description of the injuries and in the absence of any material to show that there was any fracture, the injuries cannot be termed as grievous injuries. This leads us to come to the conclusion that the offence punishable under Section 326 of IPC cannot be attracted and in stead the offence punishable under Section 324 of IPC is required to be taken into account. At the end of this judgment, a suitable alteration can be made to that effect. 15. As such, in view of the above and considering the effect of evidence of prosecution witnesses, it must be said that the present case is based mainly on the testimony of PW10 and admittedly she is an injured eye witness demanding more credibility to her credit, secondly she is a natural witness, thirdly she has no any animosity to depose against the appellant/accused, fourthly she was apparently the only witness who happened to see the appellant/accused entering the house of the victim couple, fifthly she had heard the noise of falling of an ironrod on the floor and such noise coming from flat No.102, sixthly she saw the appellant/accused in front of her door and she had a talk with him as to why he had came to her flat and lastly though initially she did not allow the entry of appellant/accused in her flat and talked with him by just partially opening the door with safety chain installed, she opened the door and allowed entry when the appellant/accused asked for a glass of water. In this context it must be said that it was but natural conduct on the part of PW10 to allow the entry of accused when he demanded for water and by no means she could have refused for giving drinking water to a person standing outside her house. All these circumstances go to show that it was only the appellant/accused and none else who had assaulted PW10 on the relevant morning and that there was no possibility that somebody else would have entered the house of the victim couple and had done away with the elderly people and consequently it is required to be accepted that it was an act of present appellant/accused and none else to do away with the victim couple causing their deaths. 16. At the end of the arguments, learned Advocate for the appellant/accused also argued that there should have been two different offences registered – first one for murder of elderly couple, against an unknown person and second one for assault on PW10. The conduct of the Investigating Officer in merging both these crimes in one has been doubted and much has been argued on behalf of the appellant/accused. However, this argument has no merit for the simple reason that the circumstances unequivocally point out that in the same transaction the assault on the elderly couple and subsequent assault on PW10 occurred. Though initially FIR was lodged by PW1 PSI Mahesh Desai against unknown person definitely that time there was no better information available as to the presence of the appellant/accused with his name Babu being the suspect for the double murder as by that time PW10 was already removed to hospital for medical treatment. Only when she reached the MIDC police station at about 6:00 p.m. on that day and narrated the incident and gave her statement, the name of the assailant Babu i.e. present appellant/accused surfaced and as such definitely there was no occasion for the police to register independent offence for assault on PW10. 17. The learned Advocate for the appellant/accused during argument placed reliance on the ratio of the following authority : (2002) 7 Supreme Court Cases 317 (Ashish Batham Vs. State of M.P.) He placed much emphasis on the contents of para8 of the said authority, which reads thus : “8. 17. The learned Advocate for the appellant/accused during argument placed reliance on the ratio of the following authority : (2002) 7 Supreme Court Cases 317 (Ashish Batham Vs. State of M.P.) He placed much emphasis on the contents of para8 of the said authority, which reads thus : “8. Realities or Truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however, strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between `may be true' and `must be true' and this basic and golden rule only helps to maintain the vital distinction between `conjectures' and `sure conclusions' to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record.” Definitely when trying the case based on circumstantial evidence the quality and credibility of the evidence is required to be seen. In the present matter at hand, we have carefully gone through the substantive evidence of PW10 and in our considered view said PW10 is a natural witness and she can be treated as wholly reliable witness for various aspects which are detailed earlier. 18. In the present matter at hand, we have carefully gone through the substantive evidence of PW10 and in our considered view said PW10 is a natural witness and she can be treated as wholly reliable witness for various aspects which are detailed earlier. 18. On the aspect as to “last seen together: the following authority is cited on behalf of the appellant : AIR 2013 SC (Criminal) 939 [Rishi Pal vs. State of Uttarakhand] In the matter at hand before the Apex Court what was brought on record was the evidence of one witness saying that the accused and deceased left his farm together but the accused returned alone with soiled clothes and this evidence was creating suspicion in the absence of the evidence as to how and where the deceased was done to death. On that premise said last seen evidence was treated not sufficient to incriminate the accused. In our case, as discussed earlier there is hardly any time between the circumstance as to accused last seen together in the company of the deceased couple and the couple found dead in the flat and in fact PW10 seeing the accused coming to her flat and assaulting her. As such, there is nothing to doubt the credibility of PW10 and also nothing to accept concoction or false implication. 19. It is also argued on behalf of the appellant/accused that in the present matter a fingerprint expert was called to flat No.102 as chance fingerprint was found on the cupboard inside the flat. Moreover the thumb impressions of the appellant/accused were also obtained and the chance print and the admitted thumb impressions were sent to fingerprint expert. The panchnama along with the expert's opinion is at Exhibit13 and 13A. However, there is no concrete opinion as to the said fingerprints matching with the admitted fingerprints of the appellant/accused. Further more it is brought to our notice that during recording of evidence of PW8 Dr. Ramchandra Prabhu who examined the injured witness PW10, he was not shown ironrod (article2) and it was not taken on record through this witness that the injuries sustained by PW10 could have been possible by said article. Further more it is brought to our notice that during recording of evidence of PW8 Dr. Ramchandra Prabhu who examined the injured witness PW10, he was not shown ironrod (article2) and it was not taken on record through this witness that the injuries sustained by PW10 could have been possible by said article. According to the defence this is a lacuna on the part of the investigation raising doubt as to whether the article No.2 was used as a weapon of assault on PW10 and whether at all it was an act done by the appellant/accused. 20. On these shortcomings in the investigation it is submitted by the learned APP for the State Mrs. Deshmukh that defect in investigation not in itself can be a ground to acquit the accused and in such cases the Court has to evaluate reliability of prosecution evidence dehors lapses and to find out whether the lapses affect the aspect of finding truth. In order to substantiate this argument, following authority is cited : 2013 CRI. L. J. 1011 [Hema vs. State, through Inspector of Police, Madras] In the said cited decision, various other earlier decisions of the Apex Court were referred with advantage. In para12, it is observed thus by referring to the observations in Gajoo v. State of Uttarakhand, 2012 (9) SCC 532 : “12. In Gajoo v. State of Uttarakhand, : 2012 (9) SCC 532 : (2012 AIR SCW 5598), while reiterating the same principle again, this Court held that defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused should not be an aspect of material consideration by the Court. Since, the Court has adverted to all the earlier decisions with regard to defective investigation and outcome of the same, it is useful to refer the dictum laid down in those cases: 20. In regard to defective investigation, this Court in Dayal Singh v. State of Uttaranchal ( AIR 2012 SC 3046 : 2012 AIR SCW 4488) while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under: (SCC pp. 28083, paras 2736) : (Paras 22 to 30 of AIR, AIR SCW) “27. Now, we may advert to the duty of the court in such cases. 28083, paras 2736) : (Paras 22 to 30 of AIR, AIR SCW) “27. Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P. ( AIR 1973 SC 448 ) this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab : ( AIR 2004 SC 1920 : 2004 AIR SCW 1609), held: (SCC p. 657, para 5) : (Para 5 of AIR, AIR SCW) 5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.” 21. Considering the observations of the Hon'ble Apex Court, as detailed above, in our considered view in the present matter, such minor shortcomings in the investigation do not go to the root of the matter and that it cannot be accepted that the prosecution has failed to establish the link of the appellant with the death of the victim couple and also assault on PW10. 22. Now lastly coming to the assault on PW10 though the trial Court had concluded that the offence punishable under Section 326 of IPC has been established against the appellant/accused, in our considered view, mainly considering the injuries sustained by PW10 and in the absence of any material on record to suggest that there was any grievous hurt caused to PW10 attracting the offence punishable under Section 326 of IPC, it must be said that an offence punishable under Section 324 of IPC is held established against the appellant/accused and the impugned judgment and order is required to be altered to that effect. 23. In view of the above, there is nothing to accept the defence of the accused as to false implication and concoction of the story against him and hence except for diluting the offence punishable under Section 326 IPC to Section 324 IPC rest of the sentence and order shall sustain. 23. In view of the above, there is nothing to accept the defence of the accused as to false implication and concoction of the story against him and hence except for diluting the offence punishable under Section 326 IPC to Section 324 IPC rest of the sentence and order shall sustain. In the result, present appeal is disposed of with following order : O R D E R (i) Criminal Appeal No.518 of 2010 is partly allowed; (ii) The conviction of the appellant/accused for the offence punishable under Section 302 of IPC shall sustain and hence consequently the punishment imposed for Section 302 of IPC is confirmed; (iii) The conviction of the appellant/accused for the offence punishable under Section 326 of IPC is brought down to Section 324 of IPC and the sentence of imprisonment for 5 years is reduced to three years of RI, maintaining the fine amount Rs.200/and maintaining the in default sentence on failure to pay the fine amount. (iv) Rest of the impugned judgment and order shall sustain; (v) Present order be communicated to the appellant/accused through concerned jail authorities, where the appellant/accused is presently lodged. 24. At this stage, we must record our appreciation for Advocate Shri Arfan Sait, who is on the panel of Advocates of High Court Legal Services Committee and who was appointed to represent the appellants in this appeal. We found that he had meticulously prepared the matter and he has very ably argued the appeal. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs.2500/.