JUDGMENT : B.P. Dharmadhikari, J. Appellants/accused Mangesh, Suresh and Homdeo in Sessions Trial No. 49/2012 have been convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and are sentenced to suffer imprisonment for life. Accused no.1 - Mangesh, who was also charged with offence punishable under Section 3 read with Section 25 of the Arms Act, has been acquitted there from. This judgment dated 30.09.2013 delivered by the Sessions Judge, Washim has been challenged in Criminal Appeal No. 556/2013 by accused no.2 – Suresh; in Criminal Appeal No. 574/2013 by accused no.1 Mangesh and accused no.3 Homdeo. It appears that accused no.3 Homdeo has filed an independent appeal which came to be registered as Criminal Appeal No.234/2015 after condoning the delay. Thus, accused no. 3 is appellant in two matters before this Court. 2. We have heard Senior Counsel Shri Anil Mardikar with Shri N.R. Tekade, learned Counsel for accused no.1 Mangesh; Shri P.R. Agrawal, learned Counsel for accused no.2 – Suresh and Shri S.M. Puranik, learned Counsel (appointed) for accused no.3 Homdeo. 3. The conviction is based on circumstantial evidence and the learned Trial Court has placed much emphasis on the theory of last seen together and discovery of weapon 'gun' at the instance of accused no.1. 4. Story of prosecution is that at about 5.30 a.m. on 13.02.2012, accused no.1 Mangesh visited Dhanaj Police Station and submitted a report (Exh.55) about causing death of his friend Amol by gunshot injuries. In the said confession, it is stated by accused no.1 that as deceased Amol was teasing his sister, Mangesh with other two accused friends brought him to forest and killed him. Accordingly F.I.R. came to be registered for the offence punishable under Sections 302, 201 read with Section 34 of Indian Penal Code. Brother and mother of deceased Amol (P.W. Nos. 1 and 2) in their statements disclosed that the accused persons have taken Amol out in the night between 12.02.2012 and 13.02.2012 under the pretext of hunting. 5. Shri Mardikar, learned Senior Counsel submits that the learned Trial Court has discarded the so called confessional statement at Exh.55, however, has rightly acquitted Mangesh of offence punishable under Sections 3 and 25 of the Arms Act. 5. Shri Mardikar, learned Senior Counsel submits that the learned Trial Court has discarded the so called confessional statement at Exh.55, however, has rightly acquitted Mangesh of offence punishable under Sections 3 and 25 of the Arms Act. In view of these findings, circumstance of last seen together by itself is not decisive and the learned trial Court ought to have looked into other material to find out whether there is any corroboration. He has taken us through the evidence on record to urge that independent witnesses, though available, have not been examined. There is no investigation into the alleged motive and person who recorded Exh.55 (P.W.11) Shailesh Meshram, has in cross-examination categorically admitted that only information given by the accused no.1 Mangesh was to the effect that his friend Amol had died, dead body and gun were lying just beside. This admission given in cross-examination shows that the report at Exh.55 has not been correctly recorded or then, is a fabricated document. It also militates with the spot panchnama, where it is mentioned by the Investigating Officer that he tried to search for the weapon in the vicinity of body, but, did not find it. Inviting attention to that spot panchnama, learned Senior Counsel states that the material lines in this respect allegedly forming part of that spot panchnama appear to have been inserted later on because of apparent space constraint therein. Discovery of weapon at the instance of accused no.1 – Mangesh is, also therefore, not established as per law and said event ought to have been ignored by the trial Court. 6. He has raised other contentions, but, in order to avoid prolixity, we find it convenient to refer to it during the course of judgment. Shri Agrawal as also Shri Puranik, learned Counsel have adopted arguments of Senior Counsel Shri Mardikar. Shri Puranik, learned counsel submits that Homdeo was not seen in the house by P.W.1 and P.W.2. Shri Agrawal, learned counsel submits that witnesses on recovery/discovery of gun have turned hostile. Prosecution has not produced relevant station diary entry to show the arrival of accused no.1 Mangesh in Police Station on 13.02.2012 at 5.30 a.m. Spot was shown to P.W.8 Babulal by one Gopichand. He contends that if Exh.55 is correct, spot of offence as also place where weapon was hidden as alleged, were already within the knowledge of the police authorities. He contends that if Exh.55 is correct, spot of offence as also place where weapon was hidden as alleged, were already within the knowledge of the police authorities. Hence, discovery under Section 27 of the Evidence Act is only a farce. This farce throws serious cloud on entire investigation and its benefit must be given to the accused persons. 7. Shri Jawade, learned A.P.P. appearing on behalf of the respondent State of Maharashtra submits that circumstance of last seen has been conclusively brought on record through evidence of P.W.1 brother and P.W. 3 mother. The fact that deceased was not permitted to finish his food, is spoken of by his mother and also his brother, and it establishes the haste as the accused persons wanted to implement their design at the earliest. In view of Section 106 of Evidence Act, burden was upon the accused persons to explain what happened to Amol thereafter. 8. The investigation is set into motion by accused no.1 when he gives information at Exh.55 by coming to police station on 13.02.2012 at 6.15 a.m. The cross-examination of officer who has recorded that information also proves this fact. Thus, death is reported to police by the accused no.1 Mangesh. In this situation as burden under Section 106 has not been discharged, the chain of circumstance conclusively implicate the accused persons in the crime. He also argues that the chain is complete and there is no circumstance to indicate involvement of any other person in the matter. 9. The injuries found on the person of the deceased in post mortem report, his blood stained clothes all show that same were caused by a gun and ballistic report at Exh.91 shows that gun discovered by Mangesh was in working condition and was used. The injuries caused by pellets are supported by the report of the Regional Forensic Laboratory at Exh.92. 10. He further adds that recovery of weapon at the instance of accused no.1 Mangesh is a clinching piece of evidence. After recording memorandum under Section 27, accused was taken to the spot where gun was alleged to be hidden and it was taken out by him. The gun was found hidden at a distance of about 1 furlong from the body of Amol. He has invited our attention to the spot panchnama at Exh.45 for this purpose. After recording memorandum under Section 27, accused was taken to the spot where gun was alleged to be hidden and it was taken out by him. The gun was found hidden at a distance of about 1 furlong from the body of Amol. He has invited our attention to the spot panchnama at Exh.45 for this purpose. Learned A.P.P. explains that Exh.55 is not recorded by P.W. 8, and therefore, the said officer was not aware of the whereabouts of gun. 11. He has relied upon judgment of Hon'ble Apex Court reported at AIR 1966 SC 119 (Aghnoo Nagesia .vrs. State of Bihar) (paragraph nos. 12 and 18) to explain the parts of Exh.55 which can be read into evidence. To demonstrate non-relevance of motive, when offence is conclusively established, he draws support from a judgments reported at (2008) 16 SCC 73 (State of Uttar Pradesh .vrs. Kishanpal and others) (Paragraph nos. 38 and 39); 1969 (3) SCC 884 (Pritam Singh .vrs. State of Rajasthan) (Paragraph nos. 9 and 11) and (2010) 10 SCC 439 (Paramjeet Singh @ Pamma .vrs. State of Uttarakhand) (Paragraph nos. 29 and 54). To explain the scope of Section 106 of Evidence Act and its use in such circumstances, he pressed into service paragraph no.16 of judgment reported at (2006) 10 SCC 681 (Trimukh Maroti Kirkan .vrs. State of Maharashtra). 12. In his brief reply arguments Shri Agrawal, learned Counsel invites attention to time as placed or recorded on spot panchnama, inquest as also on memorandum statement (Exh.40) and discovery (Exh.41), to explain how the documents appear to be tampered with. Shri Mardikar, learned Senior Counsel submits that prosecution and Investigating Officer cannot state that he was not aware of facts mentioned in Exh.55. He invites attention to the cross-examination of P.W.11 to show that after recording of FIR, it was handed over for further investigation to P.I. Rameshwar Dhoran. He invites attention to judgment reported at 2009 All MR (Cri) 1986 (Satish Shrawan Hirudkar and another .vrs. State of Maharashtra) (Paragraph nos. 10 and 13) to urge that conviction cannot be based only on "last seen" .theory. 13. Here we find it proper to begin with the cross-examination of P.W.11, who has recorded the first information on 13.02.2012 at about 6.15 in the morning. He was on station diary duty from 8 p.m. on 12.02.2012 to 8 a.m. of 13.02.2012. 10 and 13) to urge that conviction cannot be based only on "last seen" .theory. 13. Here we find it proper to begin with the cross-examination of P.W.11, who has recorded the first information on 13.02.2012 at about 6.15 in the morning. He was on station diary duty from 8 p.m. on 12.02.2012 to 8 a.m. of 13.02.2012. He has stated that accused no.1 Mangesh arrived at Police Station at 5.30 a.m. on 13.02.2012. He identified the accused. He deposed that Mangesh reported to him murder of Amol Saut in Belkhed Shivar. He recorded his report (Exh.55) and then obtained signature of Mangesh upon it. He also placed his signature thereafter. He registered Crime No.11/12 and handed over the matter for further investigation to P.I. Dhoran. 14. His cross-examination reveals that P.I. Dhoran was residing in quarter adjacent to police station. P.W.11 did not take any entry in station diary regarding arrival of Mangesh in police station. Following question was put to him and he has answered it as below - “Q. Is it correct that accused no.1 Mangesh only told you that his friend Amol Saut died and his dead body and gun were lying just beside ? A. It is correct.” It is this question and answer which needs to be given importance while appreciating the prosecution story. Exh.55 dated 13.02.2012 carries signature of accused no.1 – Mangesh and of P.W.11 as person in whose presence that statement was made. It also carries signatures of two persons as witnesses. In examination-in-chief P.W.11 does not state that he has obtained signature of any witness on Exh.55. Exh.55, apart from disclosing the mode and manner in which the murder was allegedly committed, also records that gun was hidden by accused Mangesh in soyabean heap of Pramod Wankhede. It is also recorded that thereafter all three accused started for coming to police station, but, accused no.2 Suresh and accused no.3 Homdeo got frightened and went back to the village. He has also given names of certain other persons to whom he has disclosed the incident. Those persons advised him to go to police station and to narrate the incident. Accordingly he came to police station. Thus, fact that body and gun was lying beside it, was already recorded in Exh.55 by P.W.11. Prosecution was thus, aware of whereabout of both before recording Ex. 40 or 41. 15. Those persons advised him to go to police station and to narrate the incident. Accordingly he came to police station. Thus, fact that body and gun was lying beside it, was already recorded in Exh.55 by P.W.11. Prosecution was thus, aware of whereabout of both before recording Ex. 40 or 41. 15. Spot Panchnama is drawn by P.W.8 – Babulal Raut, who then worked as P.S.I. He states that spot was shown to him by Gopichand, uncle of deceased. He also points out that preparation of seizure memo [Exh.47], whereby he seized ordinary soil and blood mixed soil from the spot and inquest panchnama [Exh.46]. It is an admitted position that the accused no.1 Mangesh was not taken to spot by him and Mangesh was kept in police station only. He deposed that at 9.20 a.m. during interrogation Mangesh agreed to show place where gun was concealed, therefore, he recorded memorandum Exh.40, and then along with Mangesh proceeded to spot where vide recovery panchnama Exh.41, gun was seized. This witness has denied that gun was lying at a distance of 10 feet from the dead body. 16. The spot where gun was hidden finds mention in Exh.55 itself. This witness states that Mangesh was arrested at 6.35 a.m. on 13.02.2012, as such, there was no question of again interrogating him to find out where gun was hidden. Second interrogation would have been necessitated only if gun was not found at the spot disclosed in Exh.55. 17. Perusal of spot panchnama reveals that this officer has carefully searched for the weapon and pallets in the vicinity of body, and it is recorded by him that he could not find it there. This recording in spot panchnama, may lend credence to the story which appears from the question – answer reproduced above. Such search for weapon would have been necessary only if P.W.11 and P.W.8 were not aware of its whereabouts. Fact that the weapon was hidden elsewhere & not near the body is known to prosecution before reaching the spot where dead body was lying. If P.W.11 was aware from the beginning that the weapon was hidden at a place which is about one furlong away, such search for weapon at spot was unwarranted. This search for weapon therefore, casts doubt not only on the spot panchnama at Exh.45, but, also on Exh.55. 18. If P.W.11 was aware from the beginning that the weapon was hidden at a place which is about one furlong away, such search for weapon at spot was unwarranted. This search for weapon therefore, casts doubt not only on the spot panchnama at Exh.45, but, also on Exh.55. 18. In the light of narration in Exh.55, if it was witnessed by two persons, we fail to understand how P.W.8 did not carry the accused with him to a place where dead body of Amol was lying. Place is shown to P.W.8 by a third person ie uncle of Amol. Similarly, at that time only he could have recovered the weapon from Soyabean heap with the assistance of accused no.1. The prosecution could have used Exh.55 as disclosure memorandum and consequential fact of recovery of body of Amol and weapon as also exclusive knowledge about death of Amol, place where it occurred, its manner, details of gun used there for as material piece of evidence in trial, but that has not been done. 19. Witness on discovery documents Ex.40 and 41 i.e. P.W.4 – Devendra Thakre and P.W.7 – Mohd. Afsar Sk. Taj Mohd were declared hostile by the prosecution, with the result in above situation, memorandum Exh.40 and consequential discovery vide Exh.41 lost its importance. The memorandum Exh.40, shows that it's recording was over at 9.30 a.m. on 13.02.2012. P.W.8 has recorded spot panchnama at Exh.45 between 7.30 a.m. to 8 a.m. Police Station is 13 kms. away from the spot. Inquest panchnama Exh.46 is drawn thereafter between 8 O'clock to 8.30 at spot only. Thus, after completing these proceedings, P.W.8 returns to police station and records disclosure panchnama in 10 minutes. He thereafter takes accused no.1 Mangesh to spot and discovery panchnama at Ex. 41 is recorded between 9.40 a.m. to 11.25 a.m. This time element therefore also raises some doubt upon the documentation of investigation. 20. Thus, in the light of the previous knowledge to police that weapon was hidden in soyabean heap, it's alleged discovery under Section 27 of Evidence Act falls to ground. Not only this, but, inconsistency brought on record in alleged attempt to locate its position as is apparent from spot panchnama Exh.45 and Exh.55 shows that the investigation has not been carried out in a transparent manner. 21. Not only this, but, inconsistency brought on record in alleged attempt to locate its position as is apparent from spot panchnama Exh.45 and Exh.55 shows that the investigation has not been carried out in a transparent manner. 21. It is in this backdrop that we have to consider the evidence of P.W.1 and P.W.2. Both of them no doubt consistently state that accused no.1 Mangesh and accused no.2 Suresh came to their house and thereafter Amol left with them for hunting. They also state that Homdeo [accused no.3] was standing outside the house. In Exh.55, there is mention of some strained relationship between Amol and Mangesh. If that be correct, in the backdrop of that relationship, it is difficult to accept that Amol would have agreed to go for hunting along with Mangesh and his friends. Evidence on record also shows that Amol had gone for hunting for the first time in his life on that day. Police have not looked into the motive which Mangesh had placed before it vide Exh.55. Whether Amol was after sister of Mangesh, and therefore, Mangesh had any plan to eliminate Amol, ought to have been investigated into by the prosecution. That has not been done. In any case, there are no independent witnesses to show that Amol left with accused persons for hunting in the night hours of 12.02.2012. There is no evidence whatsoever that accused persons at that time had any gun. 22. Accused no.1 Mangesh has stated that he went to police station only to inform about death of Amol. He has stated that he has saw dead body while returning from village and hence, went to lodge report. Prosecution has failed to establish any connection of Mangesh or other accused persons with gun which was recovered by it from soyabean heap. If disclosure and Exh.55 is correct, prosecution could have obtained hand wash or subjected Mangesh to other scientific tests and collected evidence of use of said gun by him. That also has not been done. 23. The prosecution could have found out how the gun was procured by the accused. Acquittal of accused 1 Mangesh under Section 3 and 25 of the Arms Act, can not be ignored. There is no investigation into alleged motive mentioned in Ex. 55 as allegedly disclosed by accused 1 Mangesh. That also has not been done. 23. The prosecution could have found out how the gun was procured by the accused. Acquittal of accused 1 Mangesh under Section 3 and 25 of the Arms Act, can not be ignored. There is no investigation into alleged motive mentioned in Ex. 55 as allegedly disclosed by accused 1 Mangesh. Veracity of facts disclosed by Mangesh is not ascertained and the evidence which should have found place on record is not brought before the Court. If murder was disclosed to anybody by Mangesh and others, extra judicial confession would have been an important piece of evidence. If there was no such disclosure, knowledge of various facts and factors exclusively with Mangesh implicit in Ex. 55 could have been legally substantiated by taking recourse to Section 27 of the Evidence Act. We find that State has miserably failed to carry out the investigation as per law and indirectly extended benefit to the accused persons. In the process, injustice is caused to Amol and his family. 24. In State of Gujarat v. Kishanbhai, (2014) 5 SCC 108 ) the Hon'ble Apex Court in paras 21 onwards has observed that every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore essential that every State should put in place a procedural mechanism which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent. Here we find that a case for ordering an inquiry under Discipline and Appeal Rules as also to examine feasibility of filing proceedings under Section 201 of Indian Penal Code. Such an inquiry be completed within 6 months against the all officers, whether in service or retired, who participated in this investigation and report thereof be filed with the registry of this Court. Matter be listed on 31.03.2017 for noting the compliance. 25. In this situation, we find that circumstances do not constitute a chain so complete, as to leave no doubt about participation of accused persons in the crime. Appellant nos. 2 and 3 before this Court, could not have been convicted on the basis of such evidence. Similarly, there is no clinching evidence against appellant no.1 Mangesh. No part of Ex. In this situation, we find that circumstances do not constitute a chain so complete, as to leave no doubt about participation of accused persons in the crime. Appellant nos. 2 and 3 before this Court, could not have been convicted on the basis of such evidence. Similarly, there is no clinching evidence against appellant no.1 Mangesh. No part of Ex. 55 can be read into evidence against him or anybody, as its recording itself and truth thereof is shrouded in suspicious circumstances. In any case, he is entitled to grant of benefit due to faulty investigation & no conviction can be ordered only on the principle of last seen. Hence, in this view of matter, we proceed to pass the following order. ORDER. The judgment dated 30.09.2013 delivered by Sessions Judge, Washim in Sessions Trial No.49/2012 finding the accused guilty of offence punishable under Section 302 read with 34 of Indian Penal Code is quashed and set aside. Muddemal property be dealt with as directed by the trial Court after appeal period is over. Appellants be set at liberty forthwith, if their custody is not required by prosecution in any other matter. Fees for the appointed counsel for appellant Homdeo in Criminal Appeal No. 234/2015 is quantified at Rs.5000/-.