JUDGMENT : B.P. Dharmadhikari, J. The appellant convict, in Sessions Trial No.24 of 2011, has challenged judgment and order dated 13.2.2014 delivered by learned Additional Sessions Judge, Bhandara imposing upon him sentence of imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code, 1860 and a fine amount of Rs.1,000/-, or in default, further rigorous imprisonment for three months. He is also convicted for the offence punishable under Section 394 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years and to pay a fine amount of Rs.1,000/-, or in default, to suffer further rigorous imprisonment for three months. He has been acquitted of offence punishable under Section 201 of the Indian Penal Code. 2. The story of the prosecution in a short is, on 18.10.2010, appellant-accused Shiva S/o Devrao Bawankule took a bicycle on rent and went to village where deceased Anusayabai Sevak Lute was residing. He left her village along with her on bicycle on 21.10.2010. In the morning, on 22.10.2010, at about 11:00 p.m. (11:00 a.m.?), when complainant PW 2 Suresh Dasaram Sapate went to his field for grazing cattle, he came across an unknown dead body of a woman. He informed this to Sarpanch of his village viz. Jagdishwar Motiram Shende. The identity of a lady could not be established and complaint was lodged with the police station. 3. During investigation, it was found that a woman was missing from nearby village of Chandpur. Further investigation reveals that appellant-accused visited house of deceased Anusayabai at about 7:00 p.m. on 20.10.2010. Son Jitendra Sewak Lute, of Anusayabai was then present in the house. The appellant-accused stayed with them over night and on next day, at about 1:00 p.m., both of them left the house. The appellant-accused had come to collect Anusayabai on account of death of grandmother of Jitendra. This Jitendra has been examined as PW 13 and has deposed that 7 to 8 days thereafter, police came to his village to inquire about the missing woman. 4. We need not go into more details of investigation at this stage as admittedly conviction is based only on circumstantial evidence. Those circumstances are, deceased Anusayabai was seen with the appellant-accused lastly. As per Section 106 of the Indian Evidence Act, 1872, burden was upon the appellant-accused to explain whereabouts of deceased Anusayabai. 4. We need not go into more details of investigation at this stage as admittedly conviction is based only on circumstantial evidence. Those circumstances are, deceased Anusayabai was seen with the appellant-accused lastly. As per Section 106 of the Indian Evidence Act, 1872, burden was upon the appellant-accused to explain whereabouts of deceased Anusayabai. The ornaments on her person were removed by the appellant-accused who then pledged it with money lender PW 10 Nathuji Sitaramji Dhomne. The same were recovered from that money lender. The appellant-accused had hired a bicycle bearing No.10 from bicycle hire shop of PW 7 Jaydeo Lahanu Badwaik on 18.10.2010. He returned that bicycle back in the shop at about 8:00 p.m. on 21.10.2010, that is after committing murder. After committing murder, the appellant-accused was absconding and was arrested on 14.12.2010 at Nagpur. The ornaments were recovered under Section 27 of the Evidence Act on account of disclosure made by him. It appears that earlier also he was convicted for the offence punishable under Section 394 of the Indian Penal Code. 5. We have heard learned counsel Shri K.S. Motwani for appellant-accused and learned Additional Public Prosecutor Shri R.S. Nayak for the respondent-State. 6. Inviting our attention to the evidence on record, learned counsel Shri K.S. Motwani for the appellant-accused submits that deceased Anusayabai was not missing from Chandpur at all, if story of the prosecution is accepted. According to him, visit of the appellant-accused to house of deceased Anusayabai is also not established. Taking bicycle bearing No.10 on hire from PW 7 Jaydeo Badwaik is also not proved. The ornaments allegedly recovered, after Section 27 disclosure by the appellant-accused, from money lender PW 10 Nathuji Dhomne were shown to Police Patil PW 3 Manik Ramlal Lanje even before the appellant-accused was apprehended in police station itself. Thus, there is effort to implicate the appellant-accused in false case. The motive has not been established and except for alleged last seen story, there is no other material against the present appellant-accused. He adds that even identity of body, found in the field of PW 2 Suresh Sapate, is not established and hence, conviction of the appellant-accused is unsustainable. 7. Learned Additional Public Prosecutor Shri R.S. Nayak for the respondent-State, on the other hand, relies on above mentioned chain and states that the witnesses had no reason to lie. He adds that even identity of body, found in the field of PW 2 Suresh Sapate, is not established and hence, conviction of the appellant-accused is unsustainable. 7. Learned Additional Public Prosecutor Shri R.S. Nayak for the respondent-State, on the other hand, relies on above mentioned chain and states that the witnesses had no reason to lie. Not only ornaments were found with PW 10 Nathuji Dhomne, after disclosure by the appellant-accused, but he was seen by the witnesses carrying deceased Anusayabai on his bicycle. The death was by strangulation and disclosure statement under Section 27 tallies with the situation found prevailing on the spot. He strongly placed reliance upon Section 106 of the Evidence Act. 8. The parties have made reference to certain judgments which may be considered at an appropriate juncture. 9. As far as the circumstance or last seen theory is concerned, PW 11 Bhagan Lala Kadav has been cited as a witness. She has deposed that she was residing at Tumsar since last three years. Her deposition is recorded on 25.10.2013. She deposes that she was knowing the appellant-accused and deceased Anusayabai was her sister-in-law. On the date of incident, at about 4:00 p.m., the appellant-accused had come to her house with deceased Anusayabai. Deceased Anusayabai informed PW 11 Bhagan that she was going to house of the appellant-accused at Sakarla and they left on bicycle. This witness was not in a position to give the date when the appellant-accused came or when deceased Anusayabai died. She has deposed that when deceased Anusayabai died, she was residing at Tumsar. She has deposed that the police recorded her statement 2 to 3 days after death of Anusayabai and the appellant-accused was not her relative or relative of her husband. She accepted that when the police told her that appellant-accused was Shiva, she came to know about him. She denied that she was not residing at Chandpur at the time of incident and that deceased Anusayabai did not come to her house. 10. PW 12 Baswantabai Ramdas Parsmode is resident of Chandpur. She claims to be neighbour of deceased Anusayabai. The appellant-accused came to house of deceased Anusayabai at 7:00 p.m. on 20.10.2010 and stayed in night. The next day, at 1:00 o'clock in the noon, deceased Anusayabai and the appellant-accused left Chandpur for going to Sakarla. She also describes clothes worn by deceased Anusayabai and her ornaments. She claims to be neighbour of deceased Anusayabai. The appellant-accused came to house of deceased Anusayabai at 7:00 p.m. on 20.10.2010 and stayed in night. The next day, at 1:00 o'clock in the noon, deceased Anusayabai and the appellant-accused left Chandpur for going to Sakarla. She also describes clothes worn by deceased Anusayabai and her ornaments. She states that the appellant-accused had ladies' bicycle bearing No.10 of Badwaik Cycle Stores, Jam. After eight days, she learnt about murder of deceased Anusayabai through newspaper where photograph of deceased Anusayabai was published. She and other villagers went to Andhalgaon Police Station and the police had shown her black coloured chappals, orange coloured tobacco dabbi, red coloured blouse, and violet coloured saree. She identified those clothes and ornaments. Two months thereafter, she was called for identifying the appellant-accused and she identified him in the police station. 11. Her cross examination shows that she is illiterate, but can sign. She does not know reading and writing. She could not explain why, the fact of visit of the appellant-accused at 7:00 p.m. on 20.10.2010 to deceased Anusayabai's house, description of clothes and ornaments of deceased Anusayabai or of bicycle or about learning of death through newspaper, did not figure in her Section 161 of the Code of Criminal Procedure statement. 12. Thus, material facts about date of visit, bicycle number or description of clothes or ornaments of deceased Anusayabai are the omissions. Not only this, she was deposing on 25.10.2013 and hence, it was difficult for her to give date of visit and other details. She is illiterate, cannot read and write, and still gave bicycle number and name of the cycle store at Jam. If the appellant-accused left Chandpur at 1:00 p.m. on 21.10.2010 with deceased Anusayabai, both could not have been at Chandpur at house of PW 11 Bhagan at 4:00 p.m.. PW 11 Bhagan was residing at Tumsar at the time of death and hence, it is difficult to accept her statement that on 20.10.2010 or 21.10.2010 she was residing at Chandpur. She has not deposed accordingly. 13. The prosecution has examined Jitendra Sewak Lute, as PW 13 on 28.10.2013, and he is son of deceased Anusayabai. He has deposed that on 20.10.2010, at 7:00 p.m., the appellant-accused came to their house, stayed in the night and on next day, left with deceased Anusayabai at 1:00 o'clock in the noon. She has not deposed accordingly. 13. The prosecution has examined Jitendra Sewak Lute, as PW 13 on 28.10.2013, and he is son of deceased Anusayabai. He has deposed that on 20.10.2010, at 7:00 p.m., the appellant-accused came to their house, stayed in the night and on next day, left with deceased Anusayabai at 1:00 o'clock in the noon. He has deposed that the appellant-accused had come to take deceased Anusayabai on account of death of grandmother of this witness Jitendra. He then describes clothes and ornaments on person of deceased Anusayabai. He further states that his mother was to return within a day or two, but did not return. Seven to eight days thereafter, the police came and inquired about the missing woman. They identified the photograph of deceased Anusayabai. At Andhalgaon Police Station, he identified clothes, chappal, tobacco dabbi, and photograph of his mother. His evidence shows that all places/villages were located in vicinity of each other. 14. If the appellant-accused left with deceased Anusayabai at 1:00 p.m., as claimed by PW 13 Jitendra, it is apparent that she could not have been to the residence of PW 11 Bhagan in same village at 4:00 p.m.. Both these witnesses, therefore, militate against each other. If deceased Anusayabai was to return within a day or two, PW 13 Jitendra or other relatives could have definitely made enquiries at Sakarla to find out why she has not returned. These depositions, therefore, show that none of the witnesses were treating deceased Anusayabai as a missing person. 15. Remembering bicycle number or name of cycle store, from which it was taken on hire, is a difficult thing. In normal circumstances, even PW 13 son Jitendra would not have taken note of this facet. 16. PW 7 Jaydeo Lahanu Badwaik is owner of Badwaik Cycle Stores at Jam. He deposes that the appellant-accused was known to him. On 18.10.2016, the appellant-accused came to his shop and took on hire a ladies' bicycle bearing No.10. He returned the bicycle at about 8:00 p.m. on 21.10.2010. He has relied upon the register at Exhibit 34 in support of this submission. He denied that no such cycle was taken on rent by the appellant-accused. 17. At this juncture, it will be appropriate to refer to deposition of PW 19 Assistant Police Inspector Shri Sanjay Manoharrao Shirbhate. He returned the bicycle at about 8:00 p.m. on 21.10.2010. He has relied upon the register at Exhibit 34 in support of this submission. He denied that no such cycle was taken on rent by the appellant-accused. 17. At this juncture, it will be appropriate to refer to deposition of PW 19 Assistant Police Inspector Shri Sanjay Manoharrao Shirbhate. He has deposed that he went to Badwaik Cycle Stores and its owner informed him that appellant-accused Shiva had returned bicycle on 22.10.2010 between 8:00 to 8:30 p.m.. He seized the bicycle and register recording hiring. He deposes that the witnesses informed him about use of said bicycle by the appellant-accused and, therefore, he went to Badwaik Cycle Stores. Perusal of register (property No.32/2010) and page therein, on which entries for date 18.10.2010 appear, reveals that the said page has been marked as Exhibit 34. Therein, first entry is the last entry for earlier day. The entries for 17.10.2010 (Sunday) begin on page No.83 and continue up to page No.84. Back side of the page has not been given separate number. The first entry on page No.84 is, therefore, dated 17.10.2010. Thereafter, date 18.10.2010 with day Monday are recorded. The fifth entry is in the name of the appellant-accused. It shows that cycle No.10 was letout to him at 10:00 and it was returned at 10:30. Again, five entries thereafter, there is second entry in the name of the appellant-accused. It is shown that bicycle No.10 was issued to appellant-accused Shiva at 11:00 o'clock. The date or time of its return is not mentioned on this page. This register has got entries for date 21.10.2010 or even for 22.10.2010. Even on those pages, entry, regarding return of this bicycle, does not appear. 18. In fact, register appears to be specifically printed for use by such cycle stores. Before names of hirers, there is a column for mentioning token number. Against this token number, "No.10" has been mentioned at page No.84. After names of hirers, there is a column for writing down time of hire, separate column for specifying time of return, and total hire time. There is a column to note down rate per hour or rate per day. In next column, total amount of hire charges is to be mentioned and in last column, signature of hirer/customer is to be obtained. There is a column to note down rate per hour or rate per day. In next column, total amount of hire charges is to be mentioned and in last column, signature of hirer/customer is to be obtained. Though most of the entries in these columns are made on all pages, nowhere signature of customer is obtained. In case of bicycle No.10, date of return, total time of hire, charges therefor or payment of hire charges, if any, are not recorded. One cannot say, whether hire charges have been paid by appellant-accused Shiva to PW 7 or not. In this situation, it is difficult to accept this register as a proof of fact that bicycle No.10 was taken on hire by the appellant-accused. 19. The evidence of investigating officer PW 19 Assistant Police Inspector Shri Sanjay Shirbhate reveals that on 22.10.2010, he got information about body of a woman lying in the field of Suresh Sapate. He then prepared spot panchanama at Exhibit 24. This panchanama reveals that its recording commenced at 13:00 hrs. and it was over by 13:30 hrs.. Therefore, death had taken place before 22.10.2010. Learned Additional Public Prosecutor Shri R.S. Nayak for the respondent/State has attempted to demonstrate time of death between 7:00 p.m. to 8:00 p.m. on 21.10.2010. He has drawn support from the evidence of PW 7 Jaydeo Badwaik and urged that the appellant-accused had returned bicycle at 8:00 p.m. on 21.10.2010. He has also relied upon the evidence of PW 17 Umesh Shamu Patle, who runs tea stall at village Ussarra. According to learned Additional Public Prosecutor Shri R.S. Nayak, appellant-accused Shiva and deceased Anusayabai had gone to that tea stall at 7:00 p.m. on 21.10.2010 for drinking tea. 20. Perusal of the evidence of PW 17 Umesh Patle supports this stand of learned Additional Public Prosecutor Shri R.S. Nayak. This witness has also identified photograph shown to him as that of old lady who came to his shop with the appellant-accused. Cross examination of this witness shows that the police recorded his statement on 23.10.2010, but police had also gone to tea stall on 22.10.2010. He accepted that for gong to Chandpur, one need not come to Ussarra. He accepted that he was not knowing the appellant-accused prior to the incident. He accepted that the police told him name of appellant-accused to be Shiva. 21. He accepted that for gong to Chandpur, one need not come to Ussarra. He accepted that he was not knowing the appellant-accused prior to the incident. He accepted that the police told him name of appellant-accused to be Shiva. 21. The statement of this witness reveals that the police visited this tea stall on 22.10.2010 that is the date on which body was found by them. According to PW 19 Assistant Police Inspector Shri Shirbhate, after finding body, he arranged for publication of photograph and search notes in daily newspaper "Lokmat". His deposition shows that on 27.10.2010, the husband, son, and other relatives of deceased Anusayabai came to police station and identified the photograph and other articles. This evidence of PW 19 Assistant Police Inspector Shri Shirbhate creates serious doubt as prosecution witness PW 17 Umesh Patle points out that the police came to his tea stall on 22.10.2010 and recorded his statement on 23.10.2010. 22. This discussion, therefore, shows that the theory of last seen itself is not made out as necessary facts are not established by offering proof beyond reasonable doubt. 23. The evidence of PW 3 Ramlal Manik Lanje assumes importance at this stage. He deposes that Jamadar Sarve had enquired from him whether any woman from his village was missing. He told Jamadar that deceased Anusayabai was missing from 21.10.2010. The prosecution has not examined any relative of deceased Anusayabai and her son or husband did not claim that her whereabouts were not known. Nobody states that they informed Police Patil that deceased Anusayabai left village with the appellant-accused and was missing. PW 3 Manik Ramlal Lanje deposes that the police then called him, husband, son of deceased Anusayabai, and two to three villagers to Andhalgaon Police Station for identification of a dead body. It is important to note that this person was at the relevant time Police Patil of Chandpur village where deceased Anusayabai and PW 13 Jitendra resided. They all went to Andhalgaon Police Station. The police have shown to them Tobacco Kit of orange colour, Lime Kit of parrot colour, Chappals of black colour, a Blouse of brown colour, Ekdani of 21 beads of gold, and Kondhali Pot (Necklace) with two golden big beads. PW 13 son Jitendra, husband Sewak, and neighbour PW 12 Baswantabai identified articles of deceased Anusayabai. The police have shown to them Tobacco Kit of orange colour, Lime Kit of parrot colour, Chappals of black colour, a Blouse of brown colour, Ekdani of 21 beads of gold, and Kondhali Pot (Necklace) with two golden big beads. PW 13 son Jitendra, husband Sewak, and neighbour PW 12 Baswantabai identified articles of deceased Anusayabai. He deposes that the police prepared separate identification panchanama of golden Ekdani, Kalipoth and obtained signatures. He has proved identification panchanama Exhibit 21 and identification panchnama of ornaments Exhibit 22. It appears that some photographs were shown to him in the Court and he states that the photographs were of deceased Anusayabai, who was found lying dead in the field. 24. His cross examination reveals that Jamadar Sarve had come to Chandpur three to four days after deceased Anusayabai went missing. He went to Andhalgaon Police Station twice. First he went to identify articles and, thereafter, to identify photographs of deceased Anusayabai. He accepted that articles and ornaments identified by him are available in market and there was no distinguishing mark on it. He stated that on second occasion, he had gone to Andhalgaon Police Station on 16.12.2010. He denied that Exhibits 21 and 22 i.e. panchanamas were false documents. 25. Thus, the evidence of a responsible person Police Patil PW 3 Manik Lanje shows that in very first visit that is in October 2010 ornaments that is Ekdani and Necklace were identified by him, husband Sevak, and son Jitendra of deceased Anusayabai. 26. On record, there is panchanama Exhibit 22 allegedly drawn on 16.12.2010. Police Patil PW 3 Manik Lanje is signatory thereto. There, reference is to Ekdani and Necklace and its identification by relatives in presence of these panchas. This panchanama Exhibit 22 carries thumb impression of husband Sevak and signature of son Jitendra. If this document is correct, this identification is on 16.12.2010. Accused is arrested on 14.12.2010 and, thereafter, his statement under Section 27 of the Evidence Act could have been recorded. These golden ornaments may be then recovered at his instance from money lender PW 10 Nathuji Dhomne. As per prosecution, this recovery from money lender Shri Dhomne is, therefore, after arrest of the appellant-accused. Substantive evidence of PW 3 Manik Lanje in Court on oath demolishes this story. On the contrary, it creates serious doubt on correctness thereof. These golden ornaments may be then recovered at his instance from money lender PW 10 Nathuji Dhomne. As per prosecution, this recovery from money lender Shri Dhomne is, therefore, after arrest of the appellant-accused. Substantive evidence of PW 3 Manik Lanje in Court on oath demolishes this story. On the contrary, it creates serious doubt on correctness thereof. It is to be noted that PW 13 Jitendra does not depose on oath anything about identification of ornaments. Deposition of money lender PW 10 Nathuji Dhomne shows visit by appellant-accused Shiva to his shop on 22.10.2010 and pledge of gold ornaments. He was not in a position to identify appellant-accused Shiva. Few omissions are brought on record in his cross examination. However, we do not find it necessary to delve more on this aspect. 27. PW 8 Ramesh Tikaram Lanjewar is Naib Tahsildar, who has conducted test identification parade. He has, in his cross examination, accepted that the face of the appellant-accused was not covered when he was produced before the Court on first occasion after arrest. The arrest is on 14.12.2010 while test identification parade is conducted on 18.2.2011. This material derogates from authenticity of the test identification parade. 28. Learned counsel Shri K.S. Motwani for the appellant-accused has pointed out that photograph shown to various witnesses and identified by them as that of deceased Anusayabai has not been proved in accordance with law before the Court. Assistant Police Inspector PW 19 Shri Sanjay Shirbhate has stated that he took a photographer and obtained photographs. The photograph of deceased Anusayabai has been marked as "Article A" in his deposition. However, he has not recorded the statement of photographer. He has also not produced copy of any newspaper cutting or newspaper publication to demonstrate that news of finding unidentified body was published in any newspaper. That photograph is not shown to PW 11 Bhagan Kadav, PW 12 Baswantabai Parsmode, and PW 13 Jitendra. Even Police Patil PW 3 Manik Lanje does not state that photograph at "Article A" was shown to him and it was of deceased Anusayabai. No witness has been examined by the prosecution to show that photograph at "Article A" on record is of deceased Anusayabai taken on spot. There is no evidence to gather that "Article A" is the photograph of a body found in field on 22.10.2010. 29. No witness has been examined by the prosecution to show that photograph at "Article A" on record is of deceased Anusayabai taken on spot. There is no evidence to gather that "Article A" is the photograph of a body found in field on 22.10.2010. 29. As already observed above, deceased Anusayabai left her house, as per prosecution story, on 21.10.2010. She was to come back within a day or two. However, no enquiry appears to have been conducted, by her son or other relatives about her whereabouts, thereafter. Obviously, there was no cause to worry. It cannot, therefore, be said that she was a missing person. There is no missing report on record and there is no document describing her and clothes in which she disappeared. 30. In this situation, we find that neither theory of last seen together nor unsubstantiated story of recovery of ornaments of deceased Anusayabai, after alleged disclosure by appellant-deceased Shiva, is of any help to the prosecution. The prosecution has failed to establish that body of deceased Anusayabai was found in field of Suresh Sapate on 22.10.2010 in the morning. Present appeal, therefore, deserves to be allowed. Hence, we pass following order : (1) We, therefore, quash and set aside conviction of appellant-accused Shiva and Judgment and order dated 13.2.2014, delivered by learned Additional Sessions Judge, Bhandara, in Sessions Trial No.24 of 2011. (2) Appellant-accused Shiva is acquitted of the offences punishable under Sections 302 and 394 of the Indian Penal Code. (3) Appellant-accused Shiva be set free, if his custody is not required in any other matter by the State Government. (4) Muddemal property be dealt with as directed by the Trial Court after appeal period is over. Appeal allowed.