JUDGMENT : M.G. Giratkar, J. By way of present appeal, the appellant has challenged the judgment and order dated 26th August, 2005 passed by learned 2nd Additional Sessions Judge, Nagpur in Sessions Trial No. 340 of 1997, thereby convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life and to pay a fine of Rs.1,000/-, in default, to further suffer RI for six months. 2. The case of prosecution against the appellant (hereinafter referred as accused), in short, is as under :On 04.02.1996, deceased Bapurao Ghate went to village Mohpa to attend Tervi function. He went to Mohpa on his Hero Puch moped bearing registration No. MH31/G4442. He was having camera of Yashica company. Deceased told his family members that he would return after 23 days. Deceased not returned after 34 days. His son Satyajeet waited for arrival of his father for about 15 days. On 20.02.1996, he started searching of his father. Satyajeet went to the house of his uncle and enquired about his father. He told him that the deceased had attended Tervi function and went to the house of Sitaram Bagade at village Kohli, Tahsil Kalmeshwar. 3. Complainant started searching deceased Bapurao along with his uncle. They went to the house of Wasudeo Uikey at village Kohli. During search, they met with some workers working on the road side. They shown the photo of deceased Bapurao. The workers told them that on 06.02.1996, they had seen Bapurao near village Kohli on Hero Puch moped. Thereafter they went to village Katalbodi. They met with Ravidas Meshram. Ravidas told them that deceased proceeded towards Bazargaon road. Thereafter, complainant Satyajeet and his uncle went to the house of accused No.2/appellant Anil at Katalbodi along with Ravidas Meshram. Anil was present in his house and Hero Puch moped was parked in front of his house. Accused Anil handed over the key of vehicle. Thereafter, complainant went to Police Station and lodged report. 4. Accused No.2/appellant was arrested under Section 41 of the Code of Criminal Procedure. During investigation, it was revealed that accused No.1 had love affairs with the daughter of deceased. Deceased opposed accused No.1. Therefore, accused No.1 made plan to kill the deceased. Accused Anil handed over the key of vehicle. Thereafter, complainant went to Police Station and lodged report. 4. Accused No.2/appellant was arrested under Section 41 of the Code of Criminal Procedure. During investigation, it was revealed that accused No.1 had love affairs with the daughter of deceased. Deceased opposed accused No.1. Therefore, accused No.1 made plan to kill the deceased. It was revealed during the investigation that accused No.2 taken the deceased in a lonely place and accused No.1 beat deceased by stone on his head and killed the deceased. As usual, investigation was carried out. After completing investigation, chargesheet came to be filed before the JMFC, who, in turn committed the same to the Court of Session. 5. Charge was framed by the trial Court at Exh.10 against accused Nos.1 and 2. The prosecution has examined 12 witnesses. At the conclusion of the trial, learned trial Court acquitted accused No.1 and convicted accused No.2 for the offence punishable under Section 302 of the Indian Penal Code. 6. Heard Shri Jaltare, learned Counsel appearing on behalf of the appellant/accused. He has submitted that the prosecution has not proved that the deceased was lastly seen in the company of accused No.2. The prosecution has not proved by any cogent evidence that the person who was seen with accused No.2 was the deceased only and none else. Identity of deceased itself not proved by the prosecution. Last seen evidence is doubtful. Learned trial Court without any strong circumstantial evidence, wrongly convicted the appellant/accused. At last, prayed that there is no sufficient evidence for the conviction of accused and prayed for allowing the appeal and acquitting the accused. 7. Heard Smt. K.S. Joshi, learned Additional Public Prosecutor appearing on behalf of the respondent/State. She has supported the impugned judgment. 8. Conviction of accused/appellant is based on last seen evidence and discovery of moped and dead body of deceased at the instance of accused. It is pertinent to note that the evidence in respect of recovery of moped is doubtful. PW1 was the panch for seizure panchnama of camera. He has stated in his cross-examination that his signature was obtained on blank paper. He did not know from whom said camera was seized. Therefore, his evidence is not helpful to the prosecution. 9. PW2 complainant has stated about missing of his father from 06.02.1996. PW1 was the panch for seizure panchnama of camera. He has stated in his cross-examination that his signature was obtained on blank paper. He did not know from whom said camera was seized. Therefore, his evidence is not helpful to the prosecution. 9. PW2 complainant has stated about missing of his father from 06.02.1996. He has stated that he searched his father but not found. Therefore, he lodged missing report. Thereafter, he went to the house of his relatives. They went to village Katalbodi. Ravidas Meshram told him that accused No.2 (appellant) was found pillion rider on the moped of deceased. Deceased was driving the said moped. They went towards Bazargaon. It is pertinent to note that Ravidas Meshram is not examined by the prosecution. 10. PW2 has further stated that Ravidas Meshram taken him to the house of appellant. Appellant was present. He found Hero Puch moped at the house of appellant. Accused handed over key of moped. It is pertinent to note that prosecution has shown recovery under Section 27 of the Indian Evidence Act. This recovery is doubtful because the investigating agency was already knowing about the moped at the house of accused. Moreover, PW7 Ujwal Nikose has stated in his cross-examination that he has stated before police that the vehicle found with accused No.2 Anil was given by accused No.1 Shekhar and this fact was disclosed by accused No.1 himself. Therefore, it is clear that discovery of moped at the instance of accused is not reliable. 11. As per the case of prosecution, accused shown the dead body of deceased as per his statement recorded under Section 27 of the Indian Evidence Act. PW3 Durgaprasad has stated in his evidence that accused Anil made a statement voluntarily on 07.03.1996 and shown his willingness to show the dead body of deceased. Thereafter accused Anil led them to the place of incident in Bazargaon Shivar. Accused Anil shown the dead body. Spot Panchnama (Exh.28) and Discovery Panchnama (Exh.29) were prepared in his presence. 12. Evidence of PW3 in respect of discovery of moped and dead body is not reliable because he has not identified accused Anil in the Court. Thereafter accused Anil led them to the place of incident in Bazargaon Shivar. Accused Anil shown the dead body. Spot Panchnama (Exh.28) and Discovery Panchnama (Exh.29) were prepared in his presence. 12. Evidence of PW3 in respect of discovery of moped and dead body is not reliable because he has not identified accused Anil in the Court. On the other hand, he has specifically stated in his evidence that, “I cannot say whether accused No.2 Anil was the same person who made statement voluntarily.” In the cross-examination, he has stated that, “he had been to the spot in the night at about 01:30 a.m. They were on the spot for about 34 hours. The spot was at hilly region in the forest land. He had not seen deceased Bapurao Ghate. He was not known to him”. His evidence is not reliable because as per the panchnama, it was prepared at about 07:30 p.m. This witness not identified the deceased. Moreover, the dead body was in the form of skeleton. As per the evidence of PW2, deceased was missing from 06.02.1996 and dead body was found on 07.03.1996. This witness not identified accused before the Court. Identity of deceased also not established by the prosecution. Hence, discovery of dead body at the instance of accused is not proved by the prosecution. 13. It is the case of prosecution that deceased was lastly seen with the accused. PW4 Vitthal has stated in his evidence that he had seen accused Anil at the bus stop of Bazargaon along with one old person. Accused and said old person were on red motor cycle. He had talked with accused Anil and he told him that he was going to Nagpur. In the cross-examination, he has stated in his evidence that old person was not known to him who was along with accused. His evidence is not reliable because he has stated that accused and old person were on the red motor cycle; whereas the motor cycle/moped was of black colour. The ownership of the seized vehicle also not proved. This witness not identified the deceased. No photograph of deceased was shown to this witness by the police. Therefore, identity of the deceased is not proved by the prosecution. 14. PW5 Arjun has stated in his evidence that one old person and young boy came to his field on the motor cycle. This witness not identified the deceased. No photograph of deceased was shown to this witness by the police. Therefore, identity of the deceased is not proved by the prosecution. 14. PW5 Arjun has stated in his evidence that one old person and young boy came to his field on the motor cycle. He has not stated that the deceased was the same person who was with accused. 15. The prosecution has miserably failed to prove the identity of the deceased. There is no evidence to show that deceased Bapurao Ghate was lastly in the company of accused. PW10 and PW11 not supported to the prosecution. There is no evidence to show that at the time of incident, deceased was lastly in the company of accused. As per the evidence of prosecution, deceased was missing from 06.02.1996. The dead body was found on 07.03.1996. Postmortem report was conducted on 07.03.1996. Medical Officer has stated in his evidence that dead body was partly mummify and partly saponied with putrifacation at places. Cause of death was shown as head injury. He has stated that death of the said person might have occurred before 15 days of postmortem report. Looking to this evidence, it is clear that when dead body was found, it was not in a position to identify. There is no specific evidence to show that the dead body was of Bapurao Ghate. The prosecution has failed to establish that deceased was lastly in the company of accused. Learned trial Court wrongly recorded its findings and convicted the accused. Hence, we are inclined to allow the appeal and proceed to pass the following order. ORDER : (i) The appeal is allowed. (ii) The judgment and order dated 26th August, 2005 passed by the learned 2nd Additional Sessions Judge, Nagpur in Sessions Trial No. 340 of 1997 is hereby quashed and set aside. (iii) Accused/appellant Anil Damodar Kalokar is acquitted of the offence punishable under Section 302 of the Indian Penal Code.