Judgment : A.S. Gadkari, J. 1. The appellant has questioned the correctness of the judgment and order dated 21.11.2009 passed by the learned Ad-Hoc Additional Judge-2, Niphad, in Sessions Case No.42 of 2005, thereby convicting the appellant under Section 302 of the Indian Penal Code (IPC) and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs.500/-, in default of payment of fine, he has been ordered to suffer further RI for 6 months, and under Section 379 of IPC sentenced him to suffer RI for 3 years and to pay fine of Rs.500/- and in default of payment of fine to suffer further RI for 6 months. It has been ordered that both sentences shall run concurrently. 2. The facts in brief, as enumerated from the record, are as under: (i) PW-3 Khanderao Sayaji Pagar, is an agriculturist and resident of Khadak Ozar Taluka-Chandwad, District-Nashik and is also a trustee of the temple of Kedrayi Mandir. On 7.12.2004, the said PW-3 Khanderao went to the temple for darshan of the goddess ‘Kedrayi when two persons namely, Ramzan Pathan and Dattu Laxman Pagar told him that the dead body of old man is lying in the tin-shed of the temple trust. The blanket was placed on the dead body. PW-3 Khanderao has stated that it is revealed to him that stone was hurled on the head of the said old man for killing him. A stone stained with blood was lying near the head of the said old man. After verifying the said fact, he lodged a police complaint with Wadali Bhoyi police outpost and the said complaint was noted as occurrence reported no.156 of 2004 by Wadali Bhoyi police outpost, Chandwad. (ii) PW-11 Police Havaldar Shri Ramrao Shankar Wanjul then attached to Wadner Bhairav police station. He has stated that on 7.12.2004, when he was on duty as a police station officer from 8am to 8pm, the complainant one police constable Kushare came along with complainant i.e. PW-3 Khanderao Pagar with Occurrence Report No.156 of 2004. PW-11 Police Havaldar Wanjul accordingly registered a crime at about 10.30 am on 7.12.2004 bearing CR No.102 of 2004 under Section 302 of IPC and thereafter PW-13 API Kalyanrao Vidhate took over the investigation. The said complaint is at Exhibit 30 on the record. PW-11 Police Havaldar Wanjul accordingly registered a crime at about 10.30 am on 7.12.2004 bearing CR No.102 of 2004 under Section 302 of IPC and thereafter PW-13 API Kalyanrao Vidhate took over the investigation. The said complaint is at Exhibit 30 on the record. The further investigation was taken over by PW-13 Shri Kalyanrao Vidhate then attached to Wadner Bhairav police station. The said PW-13 has also proved in his evidence the earlier occurrence report which was registered at Wadali Bhoyi police outpost which is Exhibit 60 on the record. PW-13 along with his staff went to the Kedrayi devasthan, inspected the dead body and surrounding area of the spot of incident. PW-13 Shri Vidhate prepared inquest panchanams of the dead body in presence of the panchas. The said inquest panchanama is at Exhibit 18 on the record. He sent the dead body for conducting postmortem. PW-13 Shri Vidhate thereafter prepared spot panchanama of the scene of the offence in presence of the panchas. The said spot panchanama is at Exhibit 28 on the record. PW-13 Shri Vidhate also drew rough sketch of the spot of incident which is at Exhibit 62. The clothes of the deceased were seized under seizure panchanama which is at Exhibit 19. From the articles which were found on the person of the deceased, the identity of the deceased was established as ‘Mavanji Kurade’. PW-13 Shri Vidhate thereafter called the relatives of the deceased. Accordingly, PW-5 -Walmik Mavanji Kurade, the son of the deceased came to the police station and identified the dead body of the deceased Mavanji Kurade. PW-13 Shri Vidhate thereafter recorded the statement of the son of the deceased i.e PW-5 Walmik Kurade. (iii) During the course of the investigation, it is revealed to the PW-13 Shri Vidhate that the deceased Mavanji had withdrawn an amount of Rs.92,400/- from his account from Gautram Sahakari Bank, at Kolpewadi, Taluka-Kopargaon on 25.8.2004. During the course of investigation, PW-13 Shri Vidhate had recovered an amount of Rs.15,100/- from the accused-appellant. PW-13 Shri Vidhate thereafter recording the statements of witnesses and after completion of the investigation submitted chargesheet in the competent Court having jurisdiction. (iv) The leaned Trial Court had framed the charge below Exhibit 12. The said charge was read over to the appellant. The appellant denied the same and claimed to be tried. (v) Miss. PW-13 Shri Vidhate thereafter recording the statements of witnesses and after completion of the investigation submitted chargesheet in the competent Court having jurisdiction. (iv) The leaned Trial Court had framed the charge below Exhibit 12. The said charge was read over to the appellant. The appellant denied the same and claimed to be tried. (v) Miss. Dhamale, the learned Counsel appearing for the appellant submitted before us that the deceased because of his ailment, instead of walking used to slide himself by tying rubber tube to his waist and it was a distinctive feature to identify him. Because of the distinct feature of the deceased Mavanji, it was natural for the witnesses to identify him, however, this was not a case with the appellant. The learned Counsel for the appellant submitted that PW-7 Shaikh Bashir and PW-8 Rajendra Thombare though have seen lastly appellant with the deceased, their evidence is full of exaggeration in view of the fact that in the cross-examination they have admitted that they used to see many witnesses every day and it is not possible to remember each and every person. It was further submitted by the learned Counsel for the appellant that the currency notes which alleged to have been seized at the instance of the appellant were not having any specific identification mark so as to say that the same currency notes were stolen from the person of the deceased and/or it was the same currency which was withdrawn from the said bank by the deceased prior to the date of incident. It was further submitted that in view of the facts and circumstances of the case, the appellant is entitled for the benefit of doubt. (vi) The learned APP in her arguments supported the judgment of the Trial Court and urged before us that the present appeal may be dismissed and the conviction and sentence awarded by the Trial Court be confirmed. 3. In order to deal effectively with the submissions advanced before us by Miss. Dhamale, the learned Counsel for the appellant and Mrs. Shinde, the learned APP, it would be useful to scrutinize minutely the evidence of the prosecution witnesses. 4. PW-1 Dadaji N. Ahire is the panch-witness to the recovery of the cash of Rs.15100/- and the clothes of the appellant at the instance of the appellant. Dhamale, the learned Counsel for the appellant and Mrs. Shinde, the learned APP, it would be useful to scrutinize minutely the evidence of the prosecution witnesses. 4. PW-1 Dadaji N. Ahire is the panch-witness to the recovery of the cash of Rs.15100/- and the clothes of the appellant at the instance of the appellant. PW-1 Shri Ahire has stated that on 15.12.2004 PW-13 API Shri Vidhate of Wadner Bhairav police station called him at Wadali Bhoyi where the appellant was present. The appellant thereafter put signature on the memorandum of statement which is at Exhibit-23, and expressed his willingness to show the place where he had concealed the cash amount stolen from the person from the deceased. The appellant also showed his wiliness to show the place where he had kept the clothes which he wore on the day of incident. Thereafter the appellant took the police and the panch-witnesses to his house where the appellant opened iron box/kothi and pointed out a cash of Rs.15100/-which were of Rs.100/ denomination. The accused also produced the clothes which were kept for drying on the rope in the courtyard of his house. There were some blood stains on the shirt and pant of the accused. PW-13 API Shri Vidhate thereafter seized the clothes and the currency notes of Rs.15100/-under seizure panchanama. The said seizure panchanama is at Exhibit 24 on the record. 5. PW-2 Ramzan Pathan is the panch-witness to the spot of the incident and to the inquest panchanama. The inquest panchanama is at Exhibit 18 and the spot panchnama is at Exhibit 28. It appears from the record that the defence has admitted these two documents which are at Exhibit 18 and 28 respectively, as contemplated under Section 294 of the Code of Criminal Procedure. 6. PW-3 Shri Khanderao Pagar is the complainant who had initially lodged occurrence report with the Wadali Bhoyi police outpost. The complaint of PW-3 Shri Khanderao was thereafter reduced in writing and the same was registered as crime no.102 of 2004 at Wadner Bhairav police station under Section 302 of IPC. PW-3 Shri Khanderao Pagar in his complaint has stated that on 17.12.2004, as usual in the morning he went to the temple of goddess Kedrayi to take darshan when Ramzan Pathan and Dattu Pagar told him that in the shed of the temple trust dead body of one old man was lying. PW-3 Shri Khanderao Pagar in his complaint has stated that on 17.12.2004, as usual in the morning he went to the temple of goddess Kedrayi to take darshan when Ramzan Pathan and Dattu Pagar told him that in the shed of the temple trust dead body of one old man was lying. He then immediately went to the said sport and noticed that one blanket was placed on the dead body. He removed the said blanket and found that the dead body was lying on its back. The head of the old man was smashed by a stone and the said stone was lying near the dead body. He therefore immediately lodged the complaint as stated hereinabove. 7. PW-5 Walmik Mavanji Kurade is the son of the deceased Mavanji who has stated that his father was not residing with him and he used to reside at various places of his relatives. He has further stated that his father was disabled due to his disease and used to tie rubber tube to his waist and used to move by sliding himself, as deceased was unable to walk. He has further stated that the agricultural field of his father was situated at Pimplegaon Lape and the same field was given to him for cultivation by his father by executing an agreement. As per the said agreement, PW-5 Walmik used to give deceased Rs.6000/-in cash and 6 gunny bags of food grains of wheat and bajra to his father. 8. PW-10 Chandrakant Shivaji Davange and PW-12 Balasheb Waman Kharge are the police head constables who had acted as carrier of the articles to chemical analyzer and forensic laboratory, Santacruz, Mumbai respectively. 9. PW-6 Dr. Ashok C. Sasane, is the Medical Officer who had conducted postmortem on the dead body of the deceased Mavanji on 7.12.2004 at Public Health Center, Wadali Bhoyi. The said witness has stated that upon external examination of the dead body, he noticed following injuries “1. Deep CLW right side eyebrow 4 x 2 cm deep 2. Deep CLW left side eye brow 4x2x2 cm deep. 3. Deep cut injury on right side temporal bone region of skull 5x3x3cm 4. Fracture of occipital bone with brain rupture injury of size 5x3x3cm. 5. CLW over left palm 3 x 2 x2 cm.” The said witness Dr. Sasane has further stated that there was severe bleeding from each and every injury. 3. Deep cut injury on right side temporal bone region of skull 5x3x3cm 4. Fracture of occipital bone with brain rupture injury of size 5x3x3cm. 5. CLW over left palm 3 x 2 x2 cm.” The said witness Dr. Sasane has further stated that there was severe bleeding from each and every injury. These injuries were ante mortem injuries. There are multiple facial and skull injury with severe bleeding seen. PW-6 has further stated that upon internal examination he found following injuries: “1. In head, there was fracture and rapture of bone occipital region of skull 3x3x4cm. 2. Deep cut injury on temporal region looks congested and oedematus in occipital region of skull. Lungs were congested and Oedamatus. There was no injury on spines and spinal cord. There is no injury on ribs and chest. There was no injury on abdomen. Stomach contained no smell of alcohol or poisonous substance. Liver and spleen. Pancreas congested.” 10. PW-6 Dr. Sasane thereafter gave opinion about the cause of death as, due to cardiorespiratory arrest due to Hypovolumic shock due to multiple injury on head and face. PW-6 Dr. Sasanehas further stated that the said injuries can be caused because of the article-stone which was shown to him as article ‘N’. It is pertinent to note that nothing fruitful has been elicited in the cross-examination of the said witness. 11. PW-4 Dattu Niphade, a jeep-driver, PW-7 Shaikh Bashir, ST bus conductor and PW-8 Rajendra Thombre a jeep owner have cited as witnesses on the point of last seen together, the deceased with the appellant. 12. PW-4 Dattu Niphade has stated in his evidence that he owns yellow-black jeep bearing No.MH-15-E-1599 and used to ply his jeep on Wadali Bhoyi to Khadak Ozar and Kedrayi temple route by carrying passengers in his jeep. He has stated that in the 12th month of year 2004, one old fellow i.e. one baba who was handicapped and one person with him went to Kedrayi from his jeep at about 5.30 pm. The said witness narrated the distinct feature of the said old man i.e. is the said old man had rubber tube tied to waist and was moving by sliding himself. The said old man had a stick for support and was wearing a spectacle. He has also given the description of the person accompanying to the said old man. The said witness narrated the distinct feature of the said old man i.e. is the said old man had rubber tube tied to waist and was moving by sliding himself. The said old man had a stick for support and was wearing a spectacle. He has also given the description of the person accompanying to the said old man. In his cross-examination, PW-4 Dattu Niphade has admitted that every day many passengers used to sit in his vehicle and therefore it is difficult for him to identify the passengers. He has further stated that on 7.12.2004, he went to the Devi temple at about 8 am when he saw crowd on south-side near the shed. He also saw police arrived at the sport. However, he did not tell anything to the police. He further stated that on 14.12.2004, the police took him to the village Kusur from a vehicle. The police brought one person near the jeep and asked him whether this is the said person who was accompanied the deceased. The said witness identified the said person i.e. the appellant. The police thereafter told him to identify the appellant carefully and informed him that in future he will have to go for evidence and to identify the appellant. It has been elicited in the cross-examination that on 21.12.2004, he was called to Tahasildar office for identification parade. 13. It is pertinent to note here that as per the evidence of this witness, the accused/appellant was earlier i.e. on 14.12.2004 was shown to this witness by the police and thereafter on 21.12.2004 the test identification parade was conducted by PW-9 the Tahasildar. In view of the admission given by PW-4 Dattu Niphade, the test identification parade which was held on 21.12.2004 loses its sanctity and stands vitiated. 14. PW-7 Shaikh Bashir is a ST bus conductor and was then attached to the Lasalgaon Bus depot. On 6.12.2004, he was serving as conductor of Lasalgaon-Chandwad bus. On 6.12.2004, he saw an old fellow having a rubber tube tied to his waist along with a person aged about 32-35 years. The said old fellow was sitting on the last six seater-bench of the ST bus. He has further stated that the said old fellow and the man accompanied with him alighted at Chandwad Bust Stand. On 6.12.2004, he saw an old fellow having a rubber tube tied to his waist along with a person aged about 32-35 years. The said old fellow was sitting on the last six seater-bench of the ST bus. He has further stated that the said old fellow and the man accompanied with him alighted at Chandwad Bust Stand. PW-7 Shaikh Bashir in his cross-examination has admitted that on 6.12.2004, it was a Monday and it was bazar day at Chandwad and there was crowd in the bus. He has further admitted that various passengers alight and board the bus and hence it is difficult to identify or remember the passengers. It is to be noted here that because of the distinct feature of the deceased Mavanji, it was just possible for this witness to remember the identity of the deceased Mavanji. However, in view of the admission given by this witness, safe inference can be drawn that it was very difficult for him to remember the person accompanying the deceased as he has stated that it was difficult to identify or remember various passengers in the bus. 15. PW-8 Rajendra Thombre is private jeep owner bearing MH-15-E-1351 and plies his jeep on Chandwad-Nashik route. He has stated that 5 to 6 years ago when he was boarding the passengers in his jeep, one person came near him and told him that one baba was unable to walk and the said baba wanted to go to Wadali Bhoyi. He therefore by accepting the charges allotted the front seats to the said persons. He further stated that the said old man boarded the said jeep with difficulty as the said man was unable to walk and was moving by sliding himself. He further stated that he dropped the said man and the person accompanied him at Wadali Bhoyi bus stand. The said witness was thereafter called to the Tahasildar office for identification. It is surprising to note here that in his evidence this witness has stated that when he went for identification, the appellant himself called him as “ya Chandwadwale driver ya”. In our opinion, this vice-versa identification by the accused of the witness creates doubt in our mind about the identification parade itself. Be that as it may, this witness in his cross-examination has admitted that Wadali Bhoyi is a crowded place. 16. In our opinion, this vice-versa identification by the accused of the witness creates doubt in our mind about the identification parade itself. Be that as it may, this witness in his cross-examination has admitted that Wadali Bhoyi is a crowded place. 16. PW-9 Smt. Madhumati Sardesai is the Tahasildar who conducted test identification parade. After scrutinizing the evidence of this witness, it is noticed by us that this witness has stated contrary to what has been stated by PW-7 Shaikh Bashir and PW-8 Rajendra Thombre about the occurrence at the identification parade. It further appears to us that there are material contradiction in the evidence of PW-9 Smt. Madhumati Sardesai on one hand, and PW-7 Shaikh Bashir and PW-8 Rajendra Thombre on the other hand and hence the evidence adduced by PW-9 Smt. Madhumati Sardesai creates doubt in our mind, not only about the test identification of the appellant but also the manner in which the identification parade was conducted. 17. As stated above, PW-1 Dadaji Ahire is the panch-witness for recovery of cash of Rs.15100/-at the instance of the appellant. It is pertinent to note that neither any evidence brought on record to show that the amount which was recovered from the appellant was having any specific and distinct marks on the said currency notes for tallying with the description either given by the bank or by any of the witnesses. The present case is based on the circumstances of last seen together and recovery of cash amount at the instance of the appellant. 18. As stated hereinabove, the theory of last seen together of the appellant along with deceased on 6.12.2004 creates strong suspicion in our mind about the identity of the appellant, particularly taking into consideration the admissions given by PW-4 Dattu Niphade, PW-7 Shaikh Bashir and PW-8 Rajendra Thombre. 19. We have scrutinized evidence on record minutely and we are of the opinion that the prosecution has failed to prove the charge leveled against the appellant in its entirety. The chain of the circumstances adduced by the prosecution is not complete, so also the evidence adduced by the prosecution is not cogent and reliable, to hold that, it is the appellant alone who has committed the said offence. In the circumstances, we give the benefit of doubt to the appellant and acquit him from all the charges leveled against him. 20. In the circumstances, we give the benefit of doubt to the appellant and acquit him from all the charges leveled against him. 20. We accordingly pass following order: Criminal Appeal No.1126 of 2009 is allowed, and the conviction and sentence of the Appellant -Dilip Karbhari Govind is hereby quashed and set aside and the Appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid, be refunded to him. Since the appellant is in jail, he be released forthwith, if not required in any other case.