Judgment (P.V. Hardas, J.) 1. The appellant/Original Accused No.4, who stands convicted for offence punishable under Sections 364, 366 red with Section 34, 376(2)(G) read with Section 34, 302 read with Section 34, 201 read with Section 34 and 504(2) read with Section 34 of the IPC and sentenced to imprisonment for life and to pay a fine of Rs.1,000/-, in default of which to undergo RI for three years, RI for ten years and to pay a fine of Rs.1000/-, in default of which to undergo RI for two years and imprisonment for life and to pay a fine of Rs.1000/-in default of which to undergo RI for three years, RI for three years and to pay a fine of Rs.500/-, in default of which to undergo RI for six months and RI for one year and to pay a fine of Rs.200/-, in default of which to undergo RI for one month, with a direction that the substantive sentences shall run concurrently, by the Ad-hoc Additional Sessions Judge-1, Malegaon, by judgment dated 10/07/2007, in Sessions Case No.71 of 2006, by this appeal questions the correctness of his conviction and sentence. 2. This appeal was admitted by this court on 25/3/2010. Subsequently, the appellant/original accused no.4 filed an application i.e. Criminal Application No.50 of 2014 through jail praying for expediting the hearing of the appeal. During the hearing of the said application, it was pointed out to us that the appellant had been in jail since 2005 and had undergone nearly nine years of imprisonment. In that light, therefore, this court directed the expeditious hearing of the appeal, though the appeal was of the year 2010 and also directed that the appeal be added to the hearing board from 3/3/2014. This how this appeal, which is of the year 2010, is being heard by us. 3. Facts in brief as are necessary for the decision of this appeal may briefly be stated thus :- PW 10 - Head Constable Balu Jagtap, who, on 3/11/2005, was attached to the Jaykheda Police Station, was informed by father of deceased about missing of Sheetal, wife of PW 5 -Bhausaheb. Accordingly statements of relatives of deceased Sheetal were recorded. On 5/11/2005, Head Constable Gangurde, on the basis of the information given by the Police Patil, registered A.D. No.56 of 2005 at Exh. 42. Accordingly statements of relatives of deceased Sheetal were recorded. On 5/11/2005, Head Constable Gangurde, on the basis of the information given by the Police Patil, registered A.D. No.56 of 2005 at Exh. 42. The said AD was entrusted to PW 10 -Head Constable Jagtap for inquiry. Accordingly, he visited the scene of the incident, where the dead body was lying and drew the inquest panchanama at Exh. 14. He thereafter visited the scene of the incident and in the presence of panch witnesses, drew the scene of the incident panchanama at Exh. 43. He informed the Medical Officer about the place where the dead body was lying by his communication at Exh. 44. The Medical Officer performed the postmortem at the place where the dead body was found and thereafter the dead body was handed over to PW 5 -Bhausaheb. PW 5 - Bhausaheb thereafter lodged his report at Exh. 35, on the basis of which an offence vide Crime No.108 of 2005 was registered. Investigation of the said crime was entrusted to PW 11 - API Shivaji Shendge. PW 11 - API Shendge, who was also attached to Jaykheda Police Station, was entrusted with the investigation of Crime No.108 of 2005. On 7/11/2005, accused nos.1 to 4 were arrested and during investigation it transpired that gang rape had been committed on deceased - Sheetal and, therefore, Section 376(2)(G) of the IPC was added. The seized property was referred to analysis to the Chemical Analyzer under requisition at Exh. 59. ON 23/11/2005 viscera of deceased was also forwarded to the Chemical Analyzer under requisition at Exh. 60. Further to the completion of investigation, a charge-sheet against the accused nos.1 to 4 was submitted. Postmortem on the dead body of deceased Sheetal was performed by PW 12 - Dr. Mahesh Bhadange. PW 12 - Dr. Bhadange opined that deceased might have died 25 to 36 hours prior to the postmortem. The dead body was decomposed on account of being immersed in water. He, therefore, opined that deceased had died on account of cardio respiratory failure and death had occurred before drowning. The postmortem report is at Exh. 66. On perusal of the report of the viscera, he opined that deceased Sheetal had died on account of throttling. 4. On committal of the case to Court of Sessions, trial court vide Exh. He, therefore, opined that deceased had died on account of cardio respiratory failure and death had occurred before drowning. The postmortem report is at Exh. 66. On perusal of the report of the viscera, he opined that deceased Sheetal had died on account of throttling. 4. On committal of the case to Court of Sessions, trial court vide Exh. 6, framed charge against the accused for offence punishable under Sections 364 read with 34, 366 read with 34, 376(2)(G) read with 34, 302 read with 34, 201 read with 34, 323 read with 34, 504 read with 34 and 506 read with 34 of IPC. The appellant and other accused denied their guilt and claimed to be tried. Prosecution, in support of its case, examined 12 witnesses. The trial court, upon appreciation of the evidence of the prosecution, convicted and sentenced the appellant and the other accused as afore-stated. 5. Present appeal has been filed only by the appellant/original accused No.4. The other accused i.e. accused nos.1, 2 and 3 have chosen not to question the correctness of their conviction and sentence. 6. In order to effectively deal with the submissions advanced before us by Mr. Arfan Sait, learned counsel appointed for the appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses. 7. PW 1 - Waman, PW 2 - Madhukar, PW 3 -Pandurang, PW 4 -Sanjay, PW 6 - Pintu, PW 7 -Sandip, PW 8 - Vishwas and PW 9 -Popat did not support the prosecution and were declared hostile. PW 5 - Bhausaheb, husband of deceased Sheetal deposes that at the time of the incident, he was employed by PW 7 - Sandip as an agricultural labour. According to Bhausaheb, he was residing in the agricultural land along with his wife Sheetal and his parents. On the day of the incident, at about 5 p.m., Bhausaheb and Sheetal had gone to the market and after purchasing at about 7.30 p.m. they were returning home. While they were returning, accused no.1 - Suresh and accused No.2 - Hira obstructed them. Bhausaheb was held by one person, while other two persons carried Sheetal away with them. The accused had given threats that in case of disclosure, Bhausaheb would be killed. Bhausaheb was also assaulted by the accused. The accused thereafter fled from the scene of the incident. Bhausaheb was held by one person, while other two persons carried Sheetal away with them. The accused had given threats that in case of disclosure, Bhausaheb would be killed. Bhausaheb was also assaulted by the accused. The accused thereafter fled from the scene of the incident. Meanwhile, Sheetal was crying out for help and Bhausaheb had also cried out for help. Persons who were unloading manure from the cart came towards Bhausaheb and Bhausaheb informed them about the incident. With the help of a flash light, they tried to find where the culprits had gone. Bhausaheb thereafter returned home. Bhausaheb informed his father-in-law about the incident. He thereafter returned to the scene of the incident and in the village he noticed accused no.1 - Suresh and accused No.2 -Hira in the village. He accordingly informed his employer PW 7 -Sandip the names of the accused and also apprised him about the incident. PW 7 - Sandip had accordingly advised him to lodge a report, but since PW 5 -Bhausaheb was frightened, he did not lodge the report. On the third day of the incident, he had gone to the police station and had lodged his report at Exh. 35. According to Bhausaheb, till lodging of the report, the whereabouts of his wife were not known. After 3 to 4 days, her dead body was found in a pond. On noticing the dead body of his wife, Bhausaheb went to the Jaykheda Police Station and had lodged his report. 8. In cross-examination, he has admitted that on the day of the incident till about 7 to 7.30 p.m. he was working in the agricultural land of PW 7 -Sandip. He has then admitted that while he was working, Sheetal was present in the hut, where he was residing along with Sheetal and his parents. On his return home at about 7.30 p.m. he had consumed liquor and had noticed that Sheetal was not present in the house. He, therefore, inquired from his parents, the whereabouts of Sheetal. Parents of Bhausaheb informed him that they were unaware as to where Sheetal had gone as she had left without informing them. Kishor, son of Sheetal, was present in the house. According to Bhausaheb since Sheetal had left the house, without informing anyone, he was annoyed and therefore, went to the house of his father-in-law in village Chinchabare. Parents of Bhausaheb informed him that they were unaware as to where Sheetal had gone as she had left without informing them. Kishor, son of Sheetal, was present in the house. According to Bhausaheb since Sheetal had left the house, without informing anyone, he was annoyed and therefore, went to the house of his father-in-law in village Chinchabare. Bhausaheb further deposes that his father-in-law Ramji informed him that Sheetal would be sent to his house after she returns. According to Bhausaheb, Sheetal did not return to the house and Kishor, son of Sheetal, was, therefore, handed over to the parents of Sheetal. He further deposes that after returning from the house of his father-in-law, he was attending to his work in the agricultural land. He has admitted that on 2nd and 3rd of the month, he had visited market for purchasing sorcery. He admits that on the third day of the month, he had lodged a report at the police station about missing of Sheetal and had given a photograph in order to assist the police in tracing the whereabouts of Sheetal. According to him, he had not made any inquiry, as on earlier occasion also Sheetal had left the house without informing anyone, but had returned back. He then deposes that after five days of disappearance, he was informed by the Police Patil and the police about finding of the dead body of Sheetal. He has admitted that even on that day, he had not expressed any doubt about complicity of anyone in killing of Sheetal. Omission has been duly proved that he had not stated that on the next day he returned to the scene of the incident. Omission has also been elicited that he had not disclosed about seeing of the accused in the village and about accused -Suresh removing shirt of Bhausaheb and the shirt being worn by Sheetal. 9. In further cross-examination, he has admitted that Sheetal was his second wife. According to him Sheetal was married earlier and had a son from the first marriage. He has admitted that he could not disclose the names of the two other accused. 10. The missing complaint was lodged by Bhausaheb on 3/11/2005 i.e. after three days of missing of Sheetal. The missing complaint is at Exh. 46. In Exh. According to him Sheetal was married earlier and had a son from the first marriage. He has admitted that he could not disclose the names of the two other accused. 10. The missing complaint was lodged by Bhausaheb on 3/11/2005 i.e. after three days of missing of Sheetal. The missing complaint is at Exh. 46. In Exh. 46, which is the first in point of time, PW 5 - Bhausaheb has made no reference about the accused abducting his wife Sheetal in the market. In fact, in the report at Exh. 46, Bhausaheb only claims that when he had returned from the agricultural field, he had noticed that Sheetal was not present in the house and, therefore, a report came to be lodged. Thus, the abduction of Sheetal in the market by the accused is not reflected at all when Bhausaheb lodged his report at Exh. 46. 11. Mr. Arfan Sait, learned counsel for the appellant has urged before us that in the light of the admissions given by PW 5 - Bhausaheb in cross-examination, the prosecution has utterly failed to prove the offence against the appellant. The learned APP has supported the findings arrived at by the trial court. 12. In cross-examination, on behalf of the accused, PW 5 -Bhausaheb has admitted that when he had returned from the agricultural field, he had noticed that Sheetal was missing. Due to his annoyance he had gone and informed his father-in-law. In the report at Exh. 46, which was lodged by Bhausaheb on 3/11/2005, there is absolutely no reference to Sheetal being abducted by the accused. The report at Exh. 46 only discloses that Sheetal was missing from the house without attributing anything to the accused. This is a first disclosure made by PW 5 -Bhausaheb and it is indeed curious that in this disclosure there is no mention about abduction of Sheetal three days prior. It was only after the dead body was found that the report at Exh. 35 was lodged by Bhausaheb. The said report at Exh. 35 was lodged on 7/11/2005 i.e. seven days after the alleged abduction. By then the dead body of deceased Sheetal had been found. It is indeed inexplicable that PW 5 - Bhausaheb, who had an opportunity of disclosing the incident to the police on 3/11/2005 did not do so and waited till the dead body was found i.e. on 7/11/2005. 35 was lodged on 7/11/2005 i.e. seven days after the alleged abduction. By then the dead body of deceased Sheetal had been found. It is indeed inexplicable that PW 5 - Bhausaheb, who had an opportunity of disclosing the incident to the police on 3/11/2005 did not do so and waited till the dead body was found i.e. on 7/11/2005. According to us, obviously, the report at Exh. 35 is a false report which has been lodged in order to falsely implicate the appellant. Bhausaheb claims that he had been threatened not to disclose. The aforesaid explanation is entirely unacceptable as on 3/11/2005 PW 5 - Bhausaheb had gone to the police station and had lodged the report. It is obvious to us that the disappearance of Sheetal is due to other circumstances unconnected with any overt act attributed to the appellant/accused. 13. Thus, the prosecution has, accordingly to us, utterly failed to prove the offence against the appellant beyond reasonable doubt. There is no other evidence which would bring home the offence against the appellant. None of the prosecution witnesses, including the employer of PW 5 - Bhausaheb, have supported the prosecution. The evidence of PW 5-Bhausaheb falls short of proving the offence against the appellant beyond reasonable doubt. The appellant, in our opinion, therefore, is entitled to be given the benefit of doubt. 14. As pointed out by us above, the appellant is original accused No.4, who has filed the present appeal. The other accused, who have been similarly convicted on identical evidence i.e. accused nos.1, 2 and 3 have chosen not to file any appeal against their conviction. According to us, the benefit of this judgment needs to be extended to those accused also. 15. Accordingly, Criminal Appeal is allowed and the conviction and sentence of the appellant/original accused no.4 - Pintya Baku Mali 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 him. Since the appellant is in jail, he be released forthwith, if not required in any other case. Benefit of this judgment is also extended to Original Accused Nos.1, 2 and 3 and accordingly their conviction and sentence is also quashed and set aside and they are acquitted of the offence with which they were charged and convicted. Since the appellant is in jail, he be released forthwith, if not required in any other case. Benefit of this judgment is also extended to Original Accused Nos.1, 2 and 3 and accordingly their conviction and sentence is also quashed and set aside and they are acquitted of the offence with which they were charged and convicted. Fine, if paid by them, be refunded to them. Since the original accused nos.1, 2 and 3 are in jail, they be released forthwith, if not required in any other case. Fees payable to Shri Arfan Sait, learned counsel appointed for the appellant quantified at Rs.5000/-.