JUDGMENT : G.S. KULKARNI, J. 1. The appellant who stands convicted for the offence punishable under sections 302, 376, 366-A and 506 of the Indian Penal Code, and sentenced to imprisonment for life and to pay fine of Rs. 1000/- and in default of payment of fine to suffer simple imprisonment for one month, R.I. for 10 years and to pay fine of Rs. 1000/- and in default of which to suffer simple imprisonment for one month, and R.I. of 5 years and to pay fine of Rs. 500/- in default of which to suffer simple imprisonment for one month, and R.I. for one year with a directions that all the sentences shall run concurrently, by the Adhoc District Judge and Additional Sessions Judge, Kalyan by Judgment dated 2nd July, 2014 in Sessions Case No. 207 of 2012, by this appeal questions the correctness of his conviction and sentence. Briefly stated facts as are necessary for decision of this appeal are as under:- 2. PW-1 - Babulal Ahire Police Head constable was attached to Tokawade police station when on 8th April, 2010 Waman Pardhi - Police Patil gave information that one girl by name Sujata Shelkande age about 10 to 12 years is lying dead at the side of the well. PW-1 - Babulal Ahire received this information and A.D.R. No. 4/10 was registered. PW-1 Babulal along with police staff visited the spot of incident which was at Rampur village. Parents of the deceased had brought the dead body to their house considering it to be an accidental death. PW-1-Babulal visited the house of the deceased and prepared an inquest panchanama in presence of two panch witnesses. Scratch marks on both cheeks was noticed on the body of the deceased and it was seen that face of the deceased was blackish. Neck of the deceased was swollen. Private parts were examined by a lady panch and were noticed to be swollen. An inquest panchanama to this effect was prepared which is at Exhibit 8. Thereafter spot panchanama at Exhibit 9 was prepared which was a spot near a well where the dead body was lying. The spot was shown by the Police Patil. A rough sketch of the spot of the incident was prepared and was annexed to the spot panchanama. An inquest panchanama to this effect was prepared which is at Exhibit 8. Thereafter spot panchanama at Exhibit 9 was prepared which was a spot near a well where the dead body was lying. The spot was shown by the Police Patil. A rough sketch of the spot of the incident was prepared and was annexed to the spot panchanama. PW-1 thereafter along with police constable Tambe sent the dead body for post-mortem to the Primary Health Centre, Rural Hospital, Tokawade. A report to that effect is at Exhibit 10. The dead body was thereafter sent to Murbad from Rural Hospital Tokawade for post-mortem. 3. Prosecution examined PW-15-Dr. Pralhad Rajendra Puri, Medical Officer attached to the Rural Hospital, Murbad, who on 8-4-2010 performed post-mortem examination. He along with Dr. Sanjay Khandekar had performed the post-mortem examination on deceased Sujata. Dr. Pralhad found that the clothes of the deceased were soiled with blood. He noticed sub conjuctival haemorrhage in both eyes with froth oozing through nostrils and noticed the following injuries on the body of the deceased:- (1) Labia majora oedematous on right side. (2) Labia minora oedamatous on left side. With abrasion and contusion on posterolateral aspect of fourchette of size 1.5 X 0.75 cm. (3) Hymen oedamatous with small tear posteriorly. (4) Small blood clot seen over posterior vaginal orifice. So also PW-15 found following injuries on hear body:- (1) Contusion over right side of cheek 1.5 X 1.5 cm. (2) Contusion over right side of neck in upper part size 1 cm X 1 cm. (3) Abrasion over right side of face measuring 1 cm X 0.5 cm. And crescent shaped. (4) Multiple crescent shaped abrasion over left side of neck measuring 1 X 0.5 cm. In length. (5) Multiple crescent shape abrasions over left side of neck measuring 1 X 0.5 cm. In length. (6) Abrasion on the left side of face measuring 1 cm X 0.5 cm in length. (7) Abrasions over right thumb size 0.5 cm. X 0.5 cm. (8) Subscutaneous tissue below bruises and abrasions show haemorrhage. There is extravasation. In neck soft tissue. (9) Fracture of bilateral cornus of hyoid bone (above laryngeal cartilages). The following internal injuries were noticed during post-mortem examination:- (1) Larynx, trachea, mucosa shows minute haemorrhages. (2) Both lungs show severe congestion with petechial haemorrhages. PW-15 Dr. X 0.5 cm. (8) Subscutaneous tissue below bruises and abrasions show haemorrhage. There is extravasation. In neck soft tissue. (9) Fracture of bilateral cornus of hyoid bone (above laryngeal cartilages). The following internal injuries were noticed during post-mortem examination:- (1) Larynx, trachea, mucosa shows minute haemorrhages. (2) Both lungs show severe congestion with petechial haemorrhages. PW-15 Dr. Pralhad opined that the cause of death is due to asphyxia caused due to throttling with clinical signs of forceful sexual assault -Rape. On 9th April, 2010 PW-1- Babulal Ahire collected advance death certificate of the deceased which stated the cause of death due to throttling and by forcible sexual assault. PW-1 - Babulal Ahire lodged a complaint against unknown persons which is at Exhibit 11. Investigation of the crime was handed over to PW-8 API Jadhav on 9th April, 2010. 4. PW-18 recorded statements of six witnesses on 9th April, 2010. On 10th April, 2010 he sent a letter to the city survey office for preparing a sketch map which is at Exhibit 30. PW-18 on 12th April, 2010 collected school leaving certificate of the victim. Seized muddemal property was sent for chemical analysis vide letter at Exhibit 65. PW-18 also collected the wedding card as a wedding was going on the day of the incident which is at Exhibit 6. Thereafter, statements of further witnesses came to be recorded. Chemical Analyser's reports received by PW-18 are at Exhibit 67 and 70. PW-18 also had taken blood samples of suspected persons which was sent for chemical analysis, which included blood samples of the accused. On 19th April, 2011 PW-18 handed over the investigation to Local Crime Branch. After completion of investigation, a charge-sheet dated 18th July, 2012 under sections 302, 376, 366-A, 506 of the Indian Penal code was filed in the Court of J.M.F.C. Murbad. The offences being exclusively triable by the Court of Sessions the case was committed to the Sessions Court at Kalyan. The learned Sessions Judge vide Exhibit 6 framed charges against the accused. The appellant denied their guilt and claimed to be tried. The learned Sessions Judge appreciating the evidence has convicted and sentenced the appellant as aforestated. 5. In order to effectively deal with the submissions advanced before us by the learned Counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses. 6. The appellant denied their guilt and claimed to be tried. The learned Sessions Judge appreciating the evidence has convicted and sentenced the appellant as aforestated. 5. In order to effectively deal with the submissions advanced before us by the learned Counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses. 6. Prosecution has examined PW-2 - Waman Rama Pardhi who is a Police Patil. He deposed that on 8-4-2010 at about 5.30 a.m. a co-villager - Sunita Rajaram Tatale had gone to fetch water from the well, while she was returning home one girl was seen lying on the side of the road. Sunita returned to the village and had informed two-three other women about this. PW-2 was sleeping and was informed by his wife of this incident. PW-2 thereupon immediately proceeded towards the spot and saw that a mob had gathered in front of the house of Dilip Shelkande where he saw that body of a girl was kept in the house of Dilip Shelkande. He noticed that the girl was dead. PW-2 thereafter went to the police station to give intimation of this death. He informed the police that the dead body was of a girl by name Sujata daughter of Dilip Shelkande. The police registered an FIR. In the cross-examination PW-2 admitted that he saw the dead body of the deceased for the first time in the house of Dilip Shelkande. He admitted that police came to the spot at 10 a.m. and that police had come directly to the house of the deceased. He admitted that police had registered the FIR Only after their visit to the spot and verification of the facts. He admitted that he knew the father of the deceased since childhood. He admitted that the mother of the deceased was doing business of illicit liquor and many people used to visit her house for drinking liquor. 7. Prosecution has examined PW-3 - Uttam Sitaram Lokhande who is a resident of village Rampur deposed that when he visited the spot of incident near the well, he did not find the dead body of deceased Sujata. He deposed that police had prepared a spot panchanama in his presence. In the cross-examination he admitted that he had put signature on the spot panchanama when it was prepared on the place of the incident. He deposed that police had prepared a spot panchanama in his presence. In the cross-examination he admitted that he had put signature on the spot panchanama when it was prepared on the place of the incident. He admitted that the spot of the incident was shown by the police. He admitted that the dead body of the deceased was in her house at the relevant time. He admitted that the distance from the well to the house of deceased Sujata was about 5 minutes. He admitted that the distance between the spot of the incident and the house of deceased Sujata was of 2 minutes. He admitted that police had directed him to sign on the panchanama and he had not read the contents of the panchanama at the relevant time. He admitted that the grand mother of the deceased had also died due to fall in a well. 8. Prosecution has examined PW-4 - Dilip Hema Shelkande who is the father of deceased Sujata. PW-4 deposed that on the day of incident, he had gone to attend Haldi function of son of Sakharam Vishe and that he had stayed at their place and on the next day when he came to home in the morning at 6.30 a.m., he learnt about the incident. He deposed that he saw the dead body of his daughter in his house and that the people gathered around her. He deposed that when he asked persons present at his house, as to what had happened he was informed that someone had throttled his daughter and killed her. He deposed that police had come when information was given to the police by Police Patil - PW-2. He deposed that the police had prepared inquest panchanama and had sent the body for post-mortem to be done at Murbad and the dead body was received on the same day and the funeral was also performed on the same day. On 9-4-2010 police had recorded his statement. He had received information from one Sunita Madhukar Shelkande that the appellant was carrying his daughter on his shoulder in hanging condition when he was going from the lane near the house of Vandana Shelkande. He deposed that within 15 days, he gave statement to the police of Tokawade Police Station. On 9-4-2010 police had recorded his statement. He had received information from one Sunita Madhukar Shelkande that the appellant was carrying his daughter on his shoulder in hanging condition when he was going from the lane near the house of Vandana Shelkande. He deposed that within 15 days, he gave statement to the police of Tokawade Police Station. For two years police had not made inquiry in the matter and hence, he informed the said fact to the Head Office at Thane. That on 5-5-2010 he had made an application before the Collector, Thane, and Superintendent of Police, Thane for making inquiry regarding death of his daughter. He made repeated inquiries by going to Tokawade Police Station but no action was taken. He made applications on 21-3-2011 to the Superintendent of Police and on 17-1-2012 to Sr. Police Officer, Crime Branch, Thane. Thereafter the Crime Branch had started investigation and arrested the accused. In the cross-examination, PW-4 admitted that on the day of the incident he was not in the house and came to the village only after being informed by his wife that they had found dead body of his daughter under the tree. He admitted that his wife had intimated the incident to Police Patil who had in turn informed the incident to police. He admitted that neither he nor his wife had lodged a police complaint. He admitted that the police had recorded statements of many villagers. He admitted that people from outside the village had also come to attend the marriage. He admitted that PW-6-Sunita Madhukar Shelkande was his relative. He admitted that Sunita had run away with some person from the village. He admitted that one Hemant Talape another villager was also missing from the day Sunita had run away from the village. He admitted that from 14-5-2010 they both had not returned to the village. He admitted that one Hemant Talape was present in the village on the day of the incident. He admitted that till the year 2012, the crime was not detected. He admitted that he had received information from Sunita Shelkande that she had seen the appellant carrying his daughter on the shoulder in the night time near the house of Vandana Shelkande. He admitted that till the year 2012, the crime was not detected. He admitted that he had received information from Sunita Shelkande that she had seen the appellant carrying his daughter on the shoulder in the night time near the house of Vandana Shelkande. He admitted that before running from the village Sunita Shelkande had intimated this fact to him and that he had informed the police but the police had only noted down the name in the diary. 9. Prosecution has examined PW-5 Ratna Dilip Shelkande, elder sister of deceased Sujata. She deposed that she knew the accused who is son of her father's aunty. At the time of the incident she was in the village where the incident had occurred. On 7-4-2010 it was haldi ceremony in the house of Laxman Pardhi where she and her deceased sister had gone at about 4.30 to 5 p.m. to attend the function. After the dinner, they had returned to their house at about 7.30 p.m. and they had again gone to the place of function at about 8 p.m. At about 10 p.m., she returned alone to her house and her deceased sister remained at the function for dance along with the relatives. She also informed her mother that Sujata had not returned as she was dancing with her friends. Accused and his two friends had come to her house and demanded water for drinking, they also demanded liquor. The accused and his two friends inquired about her father to which she informed that her father had gone to Sonawale village and thereafter, they went away. At about 11 p.m. her mother had told her to bring home her sister Sujata and therefore, she went to the place of the function and met Sujata, however, Sujata refused to come back as she wanted to be with her friends and participate in the dance. Thereafter she returned home alone and went to sleep. She deposed that in the morning her mother woke her up at about 5 to 5.15 a.m. and informed that some neighbouring ladies are talking about one girl lying on the side of agricultural land. Her mother stated that Sujata had not returned to the house and hence, her mother requested her to accompany her to trace Sujata. She deposed that in the morning her mother woke her up at about 5 to 5.15 a.m. and informed that some neighbouring ladies are talking about one girl lying on the side of agricultural land. Her mother stated that Sujata had not returned to the house and hence, her mother requested her to accompany her to trace Sujata. They accordingly went to the place where haldi function was held and the houses of her friends, but she could not be found and therefore, they visited the spot on the side of the agricultural land and saw that the girl lying was her sister Sujata and that she was not alive. There were scratch marks on her neck and cheek. Police was informed by the Police Patil and the police had taken the dead body for post-mortem examination and thereafter had informed that there was rape committed on deceased Sujata. She deposed that her statement was recorded three times. In cross-examination, PW-5 had admitted that the dead body of Sujata was found at the backside of her house at a distance of five minutes. She has admitted that haldi function was attended by the persons who were from outside the village. She admitted that her father was also carrying business of selling liquor and therefore, many people were coming to drink liquor at their house. She admitted that on the day of haldi function, there was no electricity, so the programme started late in the night. She admitted that at about 9 p.m. she along with her friends were sitting in the house of one Sonali Pardhe as there was no electricity. She admitted that the accused and one Hemant Talpe had come to her house after she had returned and they were accompanied with 5-6 persons. She admitted that they all had water and thereafter they consumed liquor and went away to the place of haldi function. She admitted that the dance was going on upto 11.30 p.m and that many male and female had participated. She admitted that the dead body was brought to her house from the place it was lying without informing the police. She admitted that till the year 2012 the accused was present in their village. She admitted that for a period of two years between 2010 to 2012 the police could not trace out the wrong doers. She admitted that the dead body was brought to her house from the place it was lying without informing the police. She admitted that till the year 2012 the accused was present in their village. She admitted that for a period of two years between 2010 to 2012 the police could not trace out the wrong doers. She admitted that after the incident one Hemant Talpe who was unmarried and Sunita Shelkande both had run away from the village. An omission is elicited that in her statement to the police she had stated that accused and others had come to her house but she had not stated their names. 10. Prosecution has examined PW-6 - Sunita Madhukar Shelkande who is a resident of the village who deposed that she was knowing deceased Sujata who was the daughter of his cousin brother-in-law. She deposed that on 7-4-2010 there was a marriage (haldi) ceremony in the house of Kailas Laxman Pardhi and her two sons had attended the function. She was going towards the house of Laxman Pardhi searching her sons at about 11.30 p.m. and as she did not find her sons, she was returning from the lane of the house of one Sakharam Lokhande and Vithal Shelkande, when she saw the appellant carrying deceased Sujata on his shoulder and her head was hanging from neck. She deposed that when the appellant saw her, he told her not to tell anybody about it, otherwise he would kill her. Sujata was wearing yellow colour dress having red design. Thereafter she returned home and did not inform this to anybody due to fear. On the next day Balu alias Hemant Talpe came to her shop to whom she informed this fact who immediately went away. After one month the appellant had threatened Balu Talpe that he and his brothers would kill him as also they will kill PW-6 Sunita. She deposed that Rajaram Pardhi, Laxman Pardhi and Sanjay Pardhi had a plan to kill her as informed to her by Balu alias Hemant Talpe. Therefore, they ran away from the village and stayed in forest for one night and thereafter, stayed in Amba village and then stayed at village Tandawale and were doing agricultural work in the land of Rajaram Thorat, where they stayed for six months. Therefore, they ran away from the village and stayed in forest for one night and thereafter, stayed in Amba village and then stayed at village Tandawale and were doing agricultural work in the land of Rajaram Thorat, where they stayed for six months. She deposed that thereafter she received a phone call from the village of Balu's mother that the police had directed them to remain present in the village and hence, they went to Thane Police Station where their statements were recorded. She deposed that thereafter her statement was recorded at the Murbad Court at Exhibit 27. In cross-examination PW-6 admitted that father of the deceased - Dilip is her brother-in-law. She admitted that she had not come to the village since last three years and was staying with Balu alias Hemant Talape during the said period. She admitted that she was married to Madhukar Shelkande who was living at Rampur and had three children from the said marriage. She admitted that all her three sons are maintained by her husband. She admitted that the incident had taken place in May and for a period of one month she was in the village after the incident. She also admitted that Hemant was also living in the said village. She admitted that on 13th police had called Hemant to police station and also he was called on 14th but he did not attend the police station. She admitted that she had not disclosed to anybody in her family that she had seen the accused carrying body of deceased Sujata. She admitted that after she left the village, police had called her after six months. She admitted that she had stated to the police that when she was returning from the lane of the house of Sakharam Lokhande, she had seen the appellant carrying deceased Sujata on his shoulder and her head was hanging from neck. She also admitted that the appellant had threatened her not to tell anybody failing which he will kill her. She admitted that due to darkness she could not identify as to what clothes the appellant was wearing. An omission is elicited that she has not stated in her previous statement that after one month the appellant had threatened Balu Talpe that the appellant and his brothers would go to jail but they would kill Balu alias Hemant Talpe and PW-6. An omission is elicited that she has not stated in her previous statement that after one month the appellant had threatened Balu Talpe that the appellant and his brothers would go to jail but they would kill Balu alias Hemant Talpe and PW-6. She has admitted that for a period of one month after the incident, she was going to the house of deceased Sujata. She has admitted that she had not given any complaint to the nearest police station that the appellant had threatened to kill her. 11. Prosecution has examined PW-7-Hemant who was also a resident of the village where the incident had taken place. He was in the village when the incident took place. He deposed that he knows the appellant as also deceased Sujata. He knows about the marriage (Haldi) Programme held on 7-4-2010 at the house of Kailas Pardhi where the bridegroom has arranged for drinks programme on that day. He deposed that the appellant along with others were sitting and drinking liquor near the well. Thereafter, he had come home and again went to join the programme to have dinner. At about 9.30 p.m. the music started, all the boys were dancing. The dance programme continued upto 12 to 12.30 in the night and that at the relevant time the appellant and his brother-in-law were not present for dancing. He deposed that deceased Sujata was not seen. He returned to his house at about 1 a.m. and went to sleep. In the morning, he was informed by his mother that someone was crying in the house of deceased Sujata, he therefore went to the house of deceased Sujata and saw that Sujata was lying dead. He saw that there were nail scratches on her face. After 2-3 days at about 8 a.m. in the morning he had gone to the shop of PW-6-Sunita who informed him that she had seen appellant-Krishna Pardhi carrying Sujata on his back and that the appellant had threatened her not to inform anybody. After one month, he had gone to the police station and the appellant was also with him, as the police had called them for inquiry. The appellant had threatened him outside the police station that he should not disclose to the police whatever PW-6 Sunita narrated to him. After returning from the police station, the appellant and his brother had threatened to kill him. The appellant had threatened him outside the police station that he should not disclose to the police whatever PW-6 Sunita narrated to him. After returning from the police station, the appellant and his brother had threatened to kill him. He deposed that three motorcycles were chasing him when he was returning to the village with his friend Vijay Bhandwile. At about 11 p.m. he had informed this event to PW-6-Sunita and therefore, they decided to leave the village and for one night they stayed in the forest where they saw 4-5 persons chasing them in the light of batteries. On the next day, they stayed at village Ashish and then at village Amba and from there they went to Narayangaon where they stayed in one lodge and thereafter, to village Gandoli where they were doing labour work in the house of Rajaram Thorat on a salary of Rs. 5000/- per month where they stayed for a period of six months. Thereafter, they shifted to village Khutalgaon and had done business for six moths. He had purchased one mobile on which he had contacted his mother who informed him that police had come to their house and they have asked him to return to the village. Thereafter, they went to Kalyan from where police took them to Titwala and then to Thane where his statement came to be recorded. He deposed that his statement was also recorded by the Magistrate at the Murbad Court at Exhibit 29. He deposed that as appellant had threatened to kill him and Sunita they had not given statement to the police for a period of one month and also had not disclosed the fact about deceased Sujata to anybody. In cross-examination, he admitted that he is unmarried and Sunita was married and was having three children. He admitted that since two years before the incident he had relations with PW-6-Sunita and that her husband came to know about their relations. PW-7 admitted that the incident had taken place on 7-4-2010 on which date there was a marriage (haldi) programme in the house of Kailas Pardhi. He admitted that there was a dance programme in the evening which went on beyond 11.30 p.m. He admitted that he had stated to the police that PW-6-Sunita informed him that the appellant was carrying Sujata on his shoulders. He admitted that there was a dance programme in the evening which went on beyond 11.30 p.m. He admitted that he had stated to the police that PW-6-Sunita informed him that the appellant was carrying Sujata on his shoulders. He admitted that he had informed the police that the appellant had threatened to kill him. He admitted that he had not informed the police that he ran with PW-6-Sunita due to threat given by the accused and his brother. 12. Prosecution has examined PW-8 Anna Waman Bhalerao who was working as Circle Officer who had assisted the police to draw a map of the spot. Prosecution has also examined PW-9-Anil Walku Nirmal, a resident of village who deposed that he knew the appellant and his brother Rajaram as also PW-7-Hanmant as residents of the village. On 1-5-2011 when he was going to Tokawade, brother of the appellant- Rajaram was also with him on his motorcycle who had come to Tokawade to attend the police station and thereafter, he left for his duty. He deposed that while returning from duty at 5 p.m., he saw Rajaram standing near the jeep stand at Tokawade, and that Hemant Talpe - PW-7 came there and thereafter, he did not know what happened. In the cross-examination, he admitted that he had good relation with Rajaram and the appellant. He admitted that PW-7 and Sunita - PW-6 had left the village but did not know the year when they had left the village and that they had never returned to the village for residence. 13. Prosecution examined PW-10-Vijay Gopal Bholiwale who was conducting a Pan Shop at Dhasai. He deposed that on 1-5-2010, PW-7 had come to his Pan shop at about 9 to 9.30 p.m. and had requested him that he wanted to return to his house along with PW-10 on his motorcycle. He accordingly offered him a lift. In the cross-examination, he denied that 2 to 3 motorcycles were chasing him when he and PW-7-Hemant were returning on the motorcycle. An omission is elicited that in his statement to the police he had not stated that he had asked PW-7-Hemant as to why he was afraid to which PW-7 answered that there was a threat to his life about which he would inform him later. An omission is elicited that in his statement to the police he had not stated that he had asked PW-7-Hemant as to why he was afraid to which PW-7 answered that there was a threat to his life about which he would inform him later. At that time from behind 2 - 3 motorcycles speedily were coming in their direction and looking at this, PW-7 told him to speed up the motorcycle and they turned the motorcycle towards village Kalbhand and thereafter, those motorcycles speedily went in the direction of Rampur. 14. Prosecution has examined PW-11-Sunil Daoji Sangle who had signed the seizure panchanama of the clothes of the deceased. He deposed that on 8-4-2010 he was called at Tokawade Police Station when the police had shown him the clothes of the deceased and that he has signed the seizure panchanama in respect of the clothes as mentioned in the panchanama. In the cross-examination, he admitted that Police Constable Tambe had shown blood stains and semen stain on the frock of the deceased. 15. Prosecution has examined PW-13-Rahul Bhagwan Tambe, Police constable attached to Tokawade Police Station who on 8-4-2010 had instructed the Police Head Constable to bring the dead body from the hospital after post-mortem examination. PW-13 had taken custody of the dead body from the Doctor at Murbad Hospital and handed over the same to her father. He deposed that the Medial Officer had handed over clothes i.e. frock and slack, sample of nail, blood sample etc. and that he had handed over the clothes to ASI Rokade. Prosecution has examined PW-14 - Dashrath Mahadu Rokade who at the relevant time was attached to Tokawade Police Station as Assistant Sub-Inspector. He has deposed to have seized clothes of deceased Sujata as brought to him by PW-13-Tambe and had seized the same vide seizure panchanama at Exhibit 42. 16. Prosecution has examined PW-16 - Dilip Ghanshyam Gautam who at the relevant time was attached to State Intelligence Department, Nashik who deposed that from 7-7-2011 the investigation was handed over to him. He deposed that enquiry of ADR was made by Police Hawaldar Ahire and that initial investigation was done by API Jadhav and PSI Nirbhavane of the Thane Crime Branch. PW-16 deposed that he had verified all the documents as also visited the spot and examined witnesses. He deposed that enquiry of ADR was made by Police Hawaldar Ahire and that initial investigation was done by API Jadhav and PSI Nirbhavane of the Thane Crime Branch. PW-16 deposed that he had verified all the documents as also visited the spot and examined witnesses. He deposed that PW-6 - Sunita Shelkande and PW-7 - Hemant Talape were not in the village since the incident as also PW-7 had not attended the funeral of his father. He, therefore, made inquiries. He accordingly, secured presence of PW-7-Hemant and PW-6-Sunita at the Washind Crime Branch on 19-9-2011 where their statements were recorded. It was revealed that the brother of the appellant by name Rajaram had threatened PW-7-Hemant and therefore, he had left the village along with PW-6 - Sunita. Thereafter, statements of PW-6 - Sunita and PW-7 - Hemant under section 164 of Criminal Procedure Code. He also recorded the statements of other witnesses. He had taken police custody of the accused and also taken his blood samples for a DNA test from the Medical Officer and sent samples to Chemical Analyser. In cross-examination he admitted that there were no investigation papers about statement dated 13-5-2010 of PW-7-Hemant and PW-6-Sunita. He admitted that the complaint in the case was not lodged by the father of the deceased but a crime was registered on the basis of ADR registered in the police station and nobody had filed a complaint regarding the incident. He admitted that he had recorded statement of PW-6-Sunita who had stated that she had seen the appellant carrying the dead body of deceased and had not disclosed the incident to anybody because of threat. He has admitted that DNA test of several persons were taken and that DNA reports are not filed along with the charge-sheet. 17. Having considered the evidence of the prosecution, we now consider the submissions as made by the learned Counsel for the parties. Learned Counsel for the appellant has submitted that the evidence of the prosecution is wholly unreliable and untrustworthy and does not even remotely connect the appellant to the offences with which he is charged. He submits that the backbone of the case of the prosecution is the evidence of PW-6-Sunita who has been examined as an eye witness. Learned Counsel for the appellant has submitted that the evidence of the prosecution is wholly unreliable and untrustworthy and does not even remotely connect the appellant to the offences with which he is charged. He submits that the backbone of the case of the prosecution is the evidence of PW-6-Sunita who has been examined as an eye witness. It is submitted that the testimony of PW-6 is wholly unreliable for two reasons; firstly that PW-6 claims to have seen the appellant carrying the body of the deceased over his shoulder during night on the day of the incident. He submits that PW-6 thereafter had remained in the village for about one month, however, for a period of one month she did not make a report of the said incident to the police. He submits that PW-6 had run away with PW-7 as it has come in the evidence that she had relation with PW-7. He submits that her statement is recorded for the first time on 27-3-2012 which is almost after some days short to 24 months from the date of the incident. He submits that the testimony of PW-7 also cannot be taken into consideration as his testimony in regard to the incident is hear-say on the basis of the information as told to him by PW-6. It is, therefore, submitted that the Trial Court ought not to have relied upon the evidence of PW-6 and PW-7 in recording the finding of guilt against the appellant. Learned APP has supported the findings as recorded by the learned Sessions Judge and prays for dismissal of the appeal. 18. We have examined the evidence of the prosecution witnesses. We are at pains to observe that the learned Sessions Judge has recorded a finding of guilt against the appellant on pure conjecture and surmise. Admittedly this is a case of circumstantial evidence. It is a settled position that for a conviction to succeed on the basis of circumstantial evidence, the chain of circumstances are required to be of such unimpeachable nature that they rule out every hypothesis that it is none but the accused and only the accused who is guilty of committing the crime. Adverting to this principle of law, we now consider as to how the circumstances as brought on record by the prosecution are wholly deficient, unreliable and untrustworthy to record a finding of conviction against the appellant-accused. Adverting to this principle of law, we now consider as to how the circumstances as brought on record by the prosecution are wholly deficient, unreliable and untrustworthy to record a finding of conviction against the appellant-accused. On the day of the incident, there was a marriage (haldi) function in the house of one Sakharam Vishe. Part of the celebration was a dance where the village girls and other members had participated. Prior to this in the evening the bridegroom had arranged for liquor to be consumed by the visitors. After consuming liquor, the male members had taken their dinner by 9.30 p.m. at the house of the host Sakharam Vishe and thereafter the music and dance started which continued upto 12 in the night. In between the appellant along with his 5-6 friends had visited the house of PW-4 (father of the deceased) who was also doing business of selling liquor. The appellant at about 10 p.m. consumed liquor at the house of PW-4 and then went away to participate in the function. It has come in the evidence of PW-7 that on the day of function at about 11 to 11.30 p.m. tea function started and some girls were distributing tea, then they went away. Thereafter, again music was being played and boys started to dance. The music stopped at about 12 to 12.30 in the night. These facts in no manner go to show anything which would incriminate the appellant. However, these facts are tried to be connected to the deposition of PW-7 who deposed that at the relevant time Krishna Pardhi and his brother-in-law were not present at the dance and deceased Sujata was also not there. In our opinion their absence at the dance is an extremely weak circumstance in the absence of any corroborating circumstances by which it can be conclusively inferred that the appellant's absence from the function was material. The absence could have become an important circumstance if there were other strong circumstances in the chain which would point out the guilt of the accused, but such is not the case. The learned Trial Judge taking into consideration this evidence has come to the conclusion that the absence of the appellant from the dance event can be considered that he "might" be involved in commission of crime. The learned Trial Judge taking into consideration this evidence has come to the conclusion that the absence of the appellant from the dance event can be considered that he "might" be involved in commission of crime. A plain reading of paragraph 34 of the impugned judgment leaves manner of doubt that the learned Sessions Judge has recorded a conclusion on a pure surmise. The reason being firstly there is no evidence to show that deceased Sujata was seen by anybody along with the appellant or his brother-in-law in the function, secondly, it is not the case that the appellant and deceased Sujata were the only persons who were missing from the function and somebody had specifically noticed their absence. In fact it has come on record that the music got over at about 12 to 12.30 in the night and PW-6 saw the appellant carrying deceased Sujata on his shoulder at about 11.30 p.m. PW-6 has admitted in her evidence that she could not notice the colour of the clothes which the appellant was wearing when the body of the deceased Sujata was on his shoulder. If that be the case as to how PW-6 could identify the clothes of the girl on the shoulder of the appellant and as to whether she was deceased Sujata and nobody else, is another question. 19. Now coming to the testimony of PW-6 which is the pivot of the prosecution case. PW-6 has deposed that when she was going towards the house of Laxman Pardhi for searching her sons at about 11.30 p.m. and that as her sons could not be found, she was returning from the lane of the house of Sakharam Lokhande and Vithal Shelkande, she saw the appellant carrying deceased Sujata on his shoulder and her head was hanging from neck. However, as she was threatened by the appellant that she would be killed, if she informed anybody about what she saw, she did not tell anybody about the same. We are certain that the testimony of PW-6-Sunita can be of no assistance to the prosecution so as to unimpeachably reach to a conclusion solely on the basis of her testimony that the appellant has committed the murder of deceased Sujata. We are certain that the testimony of PW-6-Sunita can be of no assistance to the prosecution so as to unimpeachably reach to a conclusion solely on the basis of her testimony that the appellant has committed the murder of deceased Sujata. We cannot hold the testimony of PW-6 - Sunita as also of PW-7 - Hemant as trustworthy as there is substantial delay on the part of the prosecution to record the statements of PW-6 and PW-7. The statements of these witnesses under section 164 of Criminal Procedure Code came to be recorded after almost about 2 years from the date of the incident. This is preceded by the background on the initial investigation resulting into a total failure and subsequently the investigation being taken over by PW-16 attached to State Intelligence Department, Nashik. Apart from this, the conduct of PW-6 who is an eye witness is also wholly unnatural inasmuch as after the date of the incident she continued to reside in the village for about one month. PW-6 has deposed that during this one month she was visiting the house of the deceased as she was related to the family of the deceased. She claims to have informed the incident to PW-7 as also PW-4 before leaving the village. It is wholly unnatural for PW-6 being related to the family of the deceased, she did not inform the father of the deceased or any members of the family of the deceased about the appellant carrying the deceased on his shoulder at the night of the incident. However, testimony of PW-6 is completely silent on she informing that to PW-4-father of the deceased. All these circumstances not only create a serious doubt on the testimony of PW-6 and PW-7 but renders the same with no credibility to bring home the guilt of the appellant. We may observe that it is a settled principle of law that the laches on the part of the witnesses to inform the police is fatal to record a finding of conviction. For these reasons we may observe with certainty that the evidence of PW-6 cannot be said to be reliable to hold that the appellant has committed rape and murder of deceased Sujata. 20. For these reasons we may observe with certainty that the evidence of PW-6 cannot be said to be reliable to hold that the appellant has committed rape and murder of deceased Sujata. 20. The learned Counsel for the appellant has appropriately relied on the decision of the Supreme Court in the case of Ganesh Bhavan Patel vs. State of Maharashtra, 1979 AIR 135 wherein the Supreme Court has held that an inordinate delay in recording the statement of eye witness by the police would make testimony of the witness fully unreliable, rendering the evidence fully unacceptable. 21. In this context we may usefully refer to the decision of the Supreme Court in the case of State of Orissa vs. Brahmananda Nanda, AIR 1976 SC 2488 , the decision of the Supreme Court in the case of Deendayal vs. Rajkumar @ Raju and Others, AIR 1999 SC 537 and the decision of the Division Bench of this Court in the case of Nemichand s/o Bakaram Patle and Others vs. State of Maharashtra, 1993 (3) Mh.L.J. 752. These decisions concern the delay on the part of the eye witnesses in not disclosing the name of the assailant, which was held to be serious infirmity to discard the credibility of the witnesses. 22. In the light of the aforesaid discussion, we allow the present appeal. ORDER Criminal Appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to them. Since the appellant is in jail, he be released forthwith, if not required in any other case.