JUDGMENT : M.G. Giratkar, J. 1. Appellant has assailed the Judgment of conviction awarded by the Additional Sessions Judge, Yavatmal in Sessions Trial No.73 of 2016, by which the appellant is convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/- in default to suffer rigorous imprisonment for three months. 2. The case of prosecution against the appellant, as it appears from the evidence of witnesses, is as under: Complainant is the real brother of appellant. On 25th April, 2016, appellant came to the house of complainant. He had some quarrel with the deceased (wife of his brother) on account of mattress. Deceased talked with her husband on mobile and called him to the house. When complainant reached to his house, he saw his wife Vanmala lying in a pool of blood. He inquired with his daughter Gauri. She told that appellant/her uncle killed her mother. She disclosed to her father i.e. complainant that appellant demanded mattress and there was quarrel between her mother and appellant. Appellant stabbed her mother by knife. Complainant went to Police Station, Ner and lodged report (Exh.15). Crime was registered vide First Information Report (Exh.16). 3. Investigation was started. Appellant was arrested. Dead body was sent for post mortem. Post mortem was conducted by the Medical Officer. The accused was in the custody of police. He disclosed to show the knife. At his instance, knife was seized by the Investigating Officer in presence of panchas. Clothes of appellant were seized by the Investigating Officer. Statements of witnesses were recorded. After completing investigation, charge sheet was filed before the Judicial Magistrate, First Class, who, in turn, committed the case for trial to the Court of Sessions at Yavatmal. 4. Charge was framed at Exh.4. Prosecution has examined material witnesses. At the conclusion of trial, learned Additional Sessions Judge convicted the appellant, as stated above. 5. Heard Mr. N.A. Badar, learned Counsel for the appellant. He has submitted that Nandkishor Bhende (PW1) not witnessed the incident personally. When he came to his house, he saw his wife lying in a pool of blood. Amol Pralhad Bhusari (PW2) not supported the prosecution. Material witness Ku. Gauri d/o. Nandu Bhende (PW3) has admitted in her cross-examination that she deposed as per the say of her father. He has submitted that Nandkishor Bhende (PW1) not witnessed the incident personally. When he came to his house, he saw his wife lying in a pool of blood. Amol Pralhad Bhusari (PW2) not supported the prosecution. Material witness Ku. Gauri d/o. Nandu Bhende (PW3) has admitted in her cross-examination that she deposed as per the say of her father. She has stated that “it is true to say that the incident of killing my mother by Rameshwar Mothebaba told me by my father Nandu.” Learned Counsel Mr. Badar has submitted that there is no other material evidence to connect the appellant with the crime. Learned trial Court has not considered the evidence properly and convicted the appellant. At last, prayed to allow the appeal. 6. Mr. S.M. Ukey, learned A.P.P. has pointed out the evidence of Dinesh Rameshappa Lokhande (PW5) and Vijay Ramkrushna Jadhav (PW7) and submitted that they saw the appellant while running having weapon in his hand. This shows that he was the person who committed murder of Vanmala. Learned A.P.P. has pointed out seizure of clothes and weapon. Learned A.P.P. has submitted that blood was found on the clothes and the weapon i.e. knife. These are material circumstances against the appellant. Learned A.P.P. has submitted that there is sufficient evidence against the appellant. Learned trial Court has rightly convicted the appellant. Hence, the appeal is liable to be dismissed. 7. From the perusal of evidence, it is clear that Gauri Bhende (PW3) was an eye witness. Learned trial Court relying on the evidence of Gauri Bhende (PW3) and recovery of weapon, clothes etc. has convicted the appellant. 8. Evidence of Nandkishor Bhende (PW1) clearly shows that he was not witness of the incident. He came to the house after the incident. When he reached to his house, his wife was lying in a pool of blood. He inquired with his daughter Gauri (PW3). Gauri (PW3) has told him that appellant stabbed her mother. Gauri has stated in her evidence that appellant quarreled with her mother and stabbed her by knife. In the cross-examination, she has admitted that she was told by her father Nandkishor (PW1) that appellant killed her mother. Therefore, she stated the same before the Court. In view of her admission, her evidence is not reliable. 9. Gauri has stated in her evidence that appellant quarreled with her mother and stabbed her by knife. In the cross-examination, she has admitted that she was told by her father Nandkishor (PW1) that appellant killed her mother. Therefore, she stated the same before the Court. In view of her admission, her evidence is not reliable. 9. Amol Bhusari (PW2) has not supported the prosecution, but during the course of cross-examination by learned A.P.P., he has stated that he saw the accused while running from the big door of house of Nandu. This particular evidence is not sufficient to show that the appellant was found on the spot or near the spot. 10. Punam Naresh Chavan (PW4) has stated in her evidence that the deceased had called her and talked with her husband on mobile. Thereafter, Punam (PW4) went to her house. After sometime, she came to know that deceased Vanmala was killed. It is pertinent to note that this witness was the neighbour of deceased. If there was any such incident, she would have heard hue and cry of deceased Vanmala. But Punam Chavan (PW4) has not stated anything. Vijay Ramkrushna Jadhav (PW7) has stated in evidence that he saw appellant coming towards his house and was proceeding from the front side of his house. He was having knife. Thereafter, he heard shouts towards the house of Nandkishor. Thereafter, he went there and saw the deceased lying in dead condition. Except the evidence of this witness that he saw the appellant while having knife in his hand, there is nothing in his evidence to connect the accused with the offence of murder. 11. The evidence in respect of recovery of weapon is not reliable because recovery was from open space from the roof of the house. Clothes of deceased were seized on 28.4.2016; whereas appellant was arrested on 26.4.2016. No explanation is given by prosecution as to why clothes were not seized on the very day when the appellant was arrested. Moreover, from the perusal of seizure panchanama of clothes, it could be seen that those clothes were not sealed. Likewise the weapon which was seized at the instance of accused was also not sealed by the prosecution. The place from which weapon i.e. knife which was seized at the instance of accused was accessible to all. 12. Moreover, from the perusal of seizure panchanama of clothes, it could be seen that those clothes were not sealed. Likewise the weapon which was seized at the instance of accused was also not sealed by the prosecution. The place from which weapon i.e. knife which was seized at the instance of accused was accessible to all. 12. Looking to the evidence, more particularly the evidence of Gauri (PW3), it is clear that she was tutored witness. There is no other eye witness to the incident. Recovery of weapon is also doubtful. The C.A. Report though show that blood of deceased was found on the clothes of accused and the weapon i.e. knife, but the weapon and clothes were not sealed by the Investigating Officer at the time of seizure. Possibility of sprinkling blood of deceased on the clothes and weapon cannot be ruled out. 13. When the capital punishment is provided then burden of proof is heavy on the prosecution. It is well settled principle of Criminal Jurisprudence that prosecution has to prove guilt of accused beyond reasonable doubt. Benefit of doubt must go to the appellant/accused. In the present case, there is no eye witness of the incident as evidence of Gauri (PW3) clearly shows that she was tutored by her father Nandkishor (PW1). Recovery of weapon is doubtful. C.A. Report though show blood group of deceased was found on the weapon and clothes of appellant, clothes and weapon were not sealed by the Investigating Officer at the time of seizure. All this evidence creates doubt and benefit of doubt must go to the appellant/accused. Learned trial Court has not considered the evidence properly and wrongly convicted the appellant. Hence, we pass the following order. ORDER The appeal is allowed. The impugned Judgment is hereby quashed and set aside. Appellant is hereby acquitted of the offence punishable under Section 302 of the Indian Penal Code. Appellant is in jail. He be released forthwith, if not required in any other crime or case. Fine amount, if paid, be refunded to the appellant. The record and proceedings be sent back to the trial Court.