JUDGMENT Prakash D. Naik, J. - The appellants have preferred these appeals challenging the Judgment and Order dated 21st March 2012 passed by ad-hoc Additional Sessions Judge, Greater Bombay at Sewree in Sessions case No. 60 of 2010. The Appellants were convicted for the offence under Section 302, read with Section 34 of the IPC and sentenced to suffer life imprisonment and to pay fine of rupees five thousand each. The Appellants were also convicted for the offences punishable under Section 392 read with Section 34 of the IPC and they were sentenced to suffer RI for five years and to pay fine of rupees two thousand each. They were also found guilty for the offence punishable under Section 201 read with Section 34 of the IPC and they were sentenced to suffer RI for five years and to pay fine of rupees 2 thousand each. 2. The case of prosecution in nutshell is as under: a) On 29/08/2009, the deceased Ganesh Pudarkar had gone to attend his work. He was working as travel agent at Dadar, T.T. he was owner of Indica Car bearing No. MH 04 CE-3976. b) There was Ganesh Festival celebration at the house of the deceased Ganesh Pudarkar. The Complainant used to attend the said festival. The Complainant along with his family was staying at the residence of the deceased. Since Ganesh Pudarkar was not seen in the house at the time of Aarti, the Complainant inquired with his wife about his whereabout and she told him that Ganesh will not come back as he was having work. c) On 30th August 2009 the Complainant was at home. Attempt was made to call Ganesh on his mobile phone, but the same was found switched off. Till the evening Ganesh did not contact anyone. The nephew of the Complainant contacted Chandmama and the Dattaram konde who were working with Ganesh. They informed that the Deceased had already left in his Indica Car at about 10.30 p.m. on 29th August 2009. Since Ganesh did not come home even on the next day, complaint was lodged with Matunga Police Station. The Police registered missing complaint on 30th August 2009. d) On 7th September 2009 Complainant was informed that news item has fleshed in daily newspaper "Pudhari" that one dead body was found at Kasara Ghat. Since Ganesh did not come home even on the next day, complaint was lodged with Matunga Police Station. The Police registered missing complaint on 30th August 2009. d) On 7th September 2009 Complainant was informed that news item has fleshed in daily newspaper "Pudhari" that one dead body was found at Kasara Ghat. The Complainant approached Matunga Police Station and informed them about the news on 08th September 2009. The Complainant along with others approached Kasara Police Station. They were informed that the dead body of unknown person was found in Kasara Ghat. The Police showed them articles such as belt, mobile pouch, key of motorcycle which were on the person of dead body and the same were identified as articles belonging to deceased. The Police also informed that dead body of deceased was lying in Kasara Ghat road K.M. No. 3/100 near bridge on 01st September 2009. Since no one came forward to claim the dead body, they buried the same since it was decomposed. ADR No. 21/2009 was registered with Kasara Police Station which was subsequently registered as CR.No. 62/2009 with the same Police Station. e) On 14th September 2009 the information was received by Crime Branch Unit No.3 that Accused No.1 along with his companion is likely to come near Pritam Hotel, Dadar for committing robbery with weapons. Accordingly, they were arrested. The Crime Branch lodged a complaint with Matunga Police Station which was registered as LAC No. 888/2009 under Section 3/25 of the Arms Act. During the interrogation, both Accused disclosed that they have committed murder of deceased. The offence was registered against them with Matunga Police Station vide CR.No. 345/2009 under Section 302, 392, 201 read with Section 34 of the IPC. f) The investigation proceeded. Body was exhumed Inquest Panchanama was prepared and postmortem was conducted. Statements of witnesses were recorded. On completing investigation charge-sheet was filed. 3. Since the offence is triable by the Court of Sessions, the case was committed to the Sessions Court. The charge was framed on 28th July 2010 under Section 302 read with Section 34 of the IPC, Section 392 read with Section 34 of the IPC and Section 201 read with Section 34 of the IPC. 4. The prosecution has examined 18 witnesses in support of case. After recording evidence, statement of the Accused under Section 313 of the CR.P.C were recorded. 4. The prosecution has examined 18 witnesses in support of case. After recording evidence, statement of the Accused under Section 313 of the CR.P.C were recorded. It is the defense of the Accused that they have been falsely implicated in the present case. In defense, the Accused have examined DW1. The Trial Court gave a finding that the prosecution has proved that the Accused in furtherance of common intention on 29th August 2009 committed murder by strangulating the deceased Ganesh Pudarkar by nylon rope causing his death and thereby committed offence punishable under Section 302 read with 34 of the IPC. The prosecution has proved that in furtherance of common intention the Accused had committed theft of golden chain, golden ring, golden bracelet, silver ring and Indica car after committing murder of deceased and thereby committed offence punishable under Section 392 read with Section 34 of the IPC. It was further held that in furtherance of common intention knowing or having reason to believe that certain offence to wit Section 302 of the IPC punishable with death or imprisonment of life and offence under Section 392 of the IPC has been committed by causing certain evidence of said offence to disappear took body of deceased in Indica car and thrown it at the deserted place in Kasara Ghat and left the Indica Car at Daman after removing its number plate with an intention of screening them from legal punishment and thereby they committed offence under Section 201 read with Section 34 of the IPC. 5. We have heard Learned Counsel Ms. Payoshi and Mrs. Tahera Kureshi representing Appellants/Accused and Learned APP for the State. Both the sides have taken us through the evidence on record. The prosecution had adduced ocular evidence of 18 witnesses and several documents in support of its case. The counsel for the Appellants submitted that there is no proof of homicidal death. Time, cause of death has not been proved. There is serious infirmity in the evidence of witnesses. The evidence suffers from contradictions and omissions. The case is based on circumstantial evidence. The chain of circumstances proving the guilt of the Accused has not been established. The evidence of last seen is weak and does not inspire confidence. The statement of PW-5 was recorded after the arrest of the Accused. There are several discrepancies in the evidence of recovery. The case is based on circumstantial evidence. The chain of circumstances proving the guilt of the Accused has not been established. The evidence of last seen is weak and does not inspire confidence. The statement of PW-5 was recorded after the arrest of the Accused. There are several discrepancies in the evidence of recovery. The prosecution has failed to prove that the dead body found by Kasara Police is that of Ganesh Pudarkar. It is not established beyond doubt that the deceased was killed by nylon rope. It is not proved that the death of the deceased was homicidal. The theory of last seen together with deceased has not been proved. There were serious lapses in the investigation. The evidence of the witnesses creates doubt whether the articles recovered during the course, of investigation belongs to the deceased. There is no eye witness to the incident. The Accused were arrested allegedly while they were taken into custody in another case wherein they had confessed the commission of murder. The dead body was totally decomposed which is evident from the evidence of the witnesses. It was not possible to identity the body. PW1 had denied DNA test. The inquest panchanama indicates that the hair of the deceased were greyish black. In the missing complaint there is no reference of grey hair. PW 1 had stated in the missing complaint that at the relevant time the deceased had worn sandle. However, in the evidence before the Court he stated that he was wearing shoes. The clothes of deceased were seized on 01/01/2009 by over writing it was mentioned as 09/09/2009. This over writing appeared on Exh.47. PW-5 and PW-7 are interested witnesses being close friends of the deceased. The Panchas had acted as panchas in several cases. They are stock witnesses. 6. Learned APP submitted that there are strong circumstances which prove the commission of crime by the appellants. There is evidence of last seen together. There is recovery of weapon used in commission of crime. The ornaments which were stolen were recovered during the course, of the investigation. The same belonged to the deceased. It is established that the deceased was wearing gold ornaments at the relevant time on his person. The Medical evidence corroborates the fact that the deceased was killed by nylon rope. The defense has not been able to demolish the prosecution case. The same belonged to the deceased. It is established that the deceased was wearing gold ornaments at the relevant time on his person. The Medical evidence corroborates the fact that the deceased was killed by nylon rope. The defense has not been able to demolish the prosecution case. The evidence of PW-5 and PW-7 with regards to last seen inspires confidence. There is no reason to doubt the veracity of their evidence. The defense witness examined by the Accused has not given credible evidence to rebut the case of prosecution. It is vehemently urged that the prosecution has successfully proved, its case by leading oral and documentary evidence. The chain of circumstances has been completed so as not to leave doubt about complicity of the Accused in the crime. Learned APP stressed upon the evidence of PW-1 who is the brother of the deceased and Complainant. It is submitted that the version of PW-1 is corroborated by PW-2 who is the wife of the deceased. PW-5 and PW-7 are independent witnesses who have categorically stated that they have lastly seen the deceased in the company of the Accused on 29th August 2009. It is submitted that recovery of articles at the instances of both the Accused establishes prosecution case and nothing has been brought on record to show that the articles which were seized at the instance of the Accused do not belong to deceased. The witnesses have identified those articles and deposed that on the day of incident the same were on the person of the deceased. PW1, PW2 and PW5 identified the photographs, clothes, ornaments and articles seized by the Kasara Police Station from the person of deceased. The witnesses have identified the dead body of the deceased. Thus, the identity of the deceased was established. The clothes worn by the deceased were also identified. Thus, the prosecution has proved its case beyond reasonable doubt and hence the conviction of the Accused be confirmed by dismissing their appeals. 7. We have perused the evidence adduced by the prosecution PW-1 Vijay Ramji Pudarkar is the brother of the deceased. He lodged the missing complaint. He stated that deceased Ganesh had gone to attend his work on 29th August 2009 and did not return home. The complaint was lodged with Matunga Police Station. He has described the clothes worn by deceased when he left the house. He lodged the missing complaint. He stated that deceased Ganesh had gone to attend his work on 29th August 2009 and did not return home. The complaint was lodged with Matunga Police Station. He has described the clothes worn by deceased when he left the house. He also stated that the deceased was wearing two golden rings, one silver ring in his fingers, golden bracelet, golden chain with pendent and carrying Rs. 20,000/- cash with him. In pursuant to the news item reported in daily newspaper "Pudhari" about finding of dead body in Kasara Ghat, the Complainant and others approached Kasara Police Station. He stated that he had identified the articles belonging to the deceased which were shown by the police. The dead body was buried. In the cross-examination he stated that he was unaware which clothes were worn by deceased while leaving home. While lodging complaint with the Police he had stated that the deceased was wearing three fingers rings but missing complaint refers to two fingers rings while lodging complaint Exh. 17. He did not disclose that the police from Kasara had shown him photographs and therefore, he identified his deceased brother. He refused to give consent for DNA test. After the body was exhumed, he lifted it and he was knowing that the deceased was having sign of operation on his right leg which was identified by him. Therefore, he refused to give consent for DNA test. However, he also admitted that he did not inform the police that the deceased was having sign of operation on the right leg. Similar mobile pouch which was recovered by the police is available in the market. PW-2 Vrushali Pudarkar is the wife of the deceased. She has reiterated the version of PW-1 with regards to missing of her husband and lodging of complaint and recovery of dead body by Kasara Police Station from Kasara Ghat. She deposed that police had shown her clothes and photographs of dead body which was identified by witness and others as that of her husband. She has further stated that on 10th September 2009 she along with others had gone to Kasara Police Station where photographs and clothes of dead body shown to them. She identified them as the same were belonging to her husband. She identified the clothes of her husband. After 2-3 days, her statement was recorded by Matunga Police Station. She has further stated that on 10th September 2009 she along with others had gone to Kasara Police Station where photographs and clothes of dead body shown to them. She identified them as the same were belonging to her husband. She identified the clothes of her husband. After 2-3 days, her statement was recorded by Matunga Police Station. She identified the articles (gold ornaments) as the same which were belonging to her husband which were worn by him at the material time. In the cross-examination she stated that she did not disclose to the police that Chandmama informed her nephew that at about 10.30 p.m. he saw her husband sleeping in Indica car. While recording her statement she did not state the police that Chandmama had told her nephew Mayur that her husband might have gone along with the passenger. She had disclosed to the police on 11.09.2009, she along with her family had gone to kasara Police Station and identified the clothes of her husband. However, the said fact is not mentioned in the statement. PW3 Vijay Nagarkar is the shopkeeper. He deposed that he knows Accused No. 2 since last 4-5 years. On 05/09/2009 the Accused and one unknown person came to his shop. Accused No.2 told him that he is in need of money and gave golden ring. The witness gave him Rs. 14,000/- in cash and kept golden ring in his shop. On 29/09/2009 Accused No. 2 was brought to his shop by the police. He told a police that the Accused has sold one golden ring before 15 days. He handed over the golden ring which was taken in possession by the police. Thereafter, the seizer panchanama was prepared. The witness did not refer to the fact that the article which was handed over to the police was sealed by them. In the cross-examination it is stated that he is not having any license for selling and purchasing gold and silver ornaments and he is not maintaining any register. He is not having any document to show that he had purchased golden ring i.e. article E-2 from Accused No. 2. There is no special identification mark on golden ring i.e. article E-2. 8. Pw-4 Prakashchandra Badla/Jain is the shopkeeper. He is conducting the business in the name of Hemant Jewellers at Vikroli, Mumbai. He used to purchase and sell gold and silver ornaments. There is no special identification mark on golden ring i.e. article E-2. 8. Pw-4 Prakashchandra Badla/Jain is the shopkeeper. He is conducting the business in the name of Hemant Jewellers at Vikroli, Mumbai. He used to purchase and sell gold and silver ornaments. He knows Pratibha kamble who is serving in his house as maid servant. On 11/09/2009 Pratibha and one person came to his shop, they told him that they want to sell golden ring and golden bracelet. He agreed to give Rs. 40,000/-. Pratibha telephoned someone and talked to him. The witness also spoke to PW-4 on phone. Pratibha did not take the receipt with her. She signed on the said receipt, amount was handed over to her. The article was kept in the shop only. On 02/07/2009 police attached to Matunga Police Station came to shop with Pratibha to show the receipt which was signed by Pratibha to the police. The same was seized. In the crossexamination he has stated that he do not know with whom, he had talked on phone at the request of Pratibha. He is not having any license for purchasing old gold ornaments. He did not disclose to the police that since Pratibha wanted an amount for depositing in the hospital, she had sold the golden ornaments. He did not disclose to the police while recording his statement that Pratibha did not take receipt with her, though he handed over the same to her. He did not disclose the detail description of the ornaments in the receipt. The golden bracelet and golden rings are available in the market. PW 5 Dattaram Konde, is the travel agent. He stated that he knows Chand Shaikh and Ganesh Pudarkar who were working as travel agent with him at Dadar, T.T. Ganesh used to park his vehicle Indica car near bridge at Dadar T.T. Accused No. 1 is also having own vehicle and he used to park his vehicle at the same place. Accused No.2 is known to him as driver. He stated that he met deceased Ganesh lastly on 29/08/2009 at about 8.00 p.m. The deceased asked him whether he would give company for drinking liquor. At that time Anil Kharade (Accused No.1), Vijay Bahere (Accused No.2), Pradip Sonawane were present. Ganesh gave Rs. 100/- to Pandurang Londhe to purchase liquor. The witness then left for home. He stated that he met deceased Ganesh lastly on 29/08/2009 at about 8.00 p.m. The deceased asked him whether he would give company for drinking liquor. At that time Anil Kharade (Accused No.1), Vijay Bahere (Accused No.2), Pradip Sonawane were present. Ganesh gave Rs. 100/- to Pandurang Londhe to purchase liquor. The witness then left for home. On 28/08/2009 when he met the deceased, he was wearing golden chain and golden rings on his person. He do not remember which clothes were worn by the deceased but he might be wearing light red color chex shirt and jeans. He received call from daughter of Ganesh and told that Ganesh did not come back home. He informed her that deceased met him on 29/08/209 at about 8.00 to 8.30 p.m. On 07/09/2009 the witness along with others went to Kasara Police Station where police showed them photograph of the dead body and the clothes which were worn by the deceased. All of them identified the photographs and clothes of the deceased. He also identified the Accused as the persons to whom he had last seen with deceased on 29/08/2009. In the cross-examination several omissions were brought on record. He stated that while recording his statement he informed the police that Accused No. 1 used to park his car where the deceased also used to park his car. However, the same is not reflected in his statement. He had also informed the police that at about 8.00 to 8.30 p.m. the deceased met him on 29/08/2009. However, the said fact is not reflected in his statement. He also informed the police that on 29/08/2009 he saw gold ornaments such as golden chain, golden rings on the person of deceased. However, the same is not reflected in his statement. While recording his statement he did not inform the police that when he had last seen the deceased, he was wearing light red colored chex shirt and jeans. Although, he informed the police that Dipak Desai had informed him about the news appearing in newspaper "Pudhari" about recovery of dead body in Kasara Ghat. The said fact is not appearing in his statement. He did not inform the police that Nitin Nayar informed the above news to Vijay. Although, he informed the police that Dipak Desai had informed him about the news appearing in newspaper "Pudhari" about recovery of dead body in Kasara Ghat. The said fact is not appearing in his statement. He did not inform the police that Nitin Nayar informed the above news to Vijay. The fact that the witness Nitin, Vijay and relatives of the deceased had gone to Kasara Police Station and they identified the photographs, clothes and ornaments of the deceased is not appearing in his statement. After 5-6 days of the incident he came to know that Accused No.1 has committed murder of deceased. He did not inform the police that Accused No. 1 might have committed the murder of the deceased. He also deposed that the face of the dead body was disfigured in the photograph shown by the police. From the disfigured face, one could not identify the dead body. However, he has stated that from the clothes they identified the dead body. He further stated that while recording his statement, he had informed the police that he met the deceased near Pritam Hotel, Dadar TT but the said fact is not appearing in his statement. 9. Pw 6 Gunaji Puna Yadav is the father of Pratibha Kamble. He knows Accused No.2, who is related to him. On 11/09/2009 when he came to the house of his daughter Pratibha, the Accused came there. Accused No.2 told Pratibha that he is in need of money as his vehicle had met with an accident. He also stated that he is having some ornaments with him and if she has any acquaintance with goldsmith he can mortgange the same with him. Accused No. 2 handed over one golden ring and bracelet to Pratibha. The witness and his daughter Pratibha went to the shop of Hemant Jewellers which is situated at Vikroli. The owner of the shop showed his willingness to give Rs.40,000/- against the ornaments. He handed over the chit on which the mobile numbers of the Accused were mentioned. The owner thereafter, contacted Accused No. 2 on his mobile. Accused No. 2 told the shopkeeper that he wants to sell the ornaments. The shopkeeper gave an amount of Rs. 40,000/- which was handed over to Accused No.2. Thereafter, Matunga Police came to the house of Pratibha along with Accused No.2. The owner thereafter, contacted Accused No. 2 on his mobile. Accused No. 2 told the shopkeeper that he wants to sell the ornaments. The shopkeeper gave an amount of Rs. 40,000/- which was handed over to Accused No.2. Thereafter, Matunga Police came to the house of Pratibha along with Accused No.2. The owner of the shop told the police he had melted the ornaments. In the crossexamination, he stated that while recording statement, he had informed the police that initially the owner of the shop agreed to mortgage the golden ornaments for Rs. 30,000/-. The said fact is not mentioned in his statement. He also informed the police while recording the statement that he gave chit of phone numbers of Accused to owner of Hemant Jewellers. However, the said fact is not mentioned in the statement. He also informed the police while recording the statement that the Accused No.2, in his presence handed over golden bracelet and one golden ring to Pratibha. The said fact is not reflected in his statement. He had also informed the police that Accused No.2 had informed the Jeweller that instead of mortgaging gold ornaments he wanted to sell it. The said fact is not appearing in the statement. He also informed the police that Jeweller had informed them that he had melted the ornaments. The said fact is not also reflected in the statement. PW-7 Pandurang Londhe has been examined with regards to the circumstance of last seen together. He stated that on 29/08/2009 he consumed liquor with deceased Ganesh below Dadar T.T. bridge. Ganesh gave Rs. 100/- to purchase liquor. He was having Rs. 20,000/-. Accused No. 1 and 2 came there. They comsumed liquor with deceased. At about 9.00 p.m. Datta Konde came there. Ganesh asked him whether he is willing to consume liquor but he refused on account of Ganesh idol visarjan. Thereafter, Dattaram left the place. Ganesh told PW-6 to bring liquor. He brought the same. Both consumed the liquor. In the mean time Accused No.1 and 2 again came there. Accused No.1 asked for liquor. Ganesh gave Rs. 100/- to bring the liquor. Accused No. 1 and Ganesh consumed the liquor. Ganesh told PW-6 that he would stay there and he will not go to his house. Thereafter, Accused No. 1 asked deceased whether he is coming with him as he is going to Vashi but he refused. Accused No.1 asked for liquor. Ganesh gave Rs. 100/- to bring the liquor. Accused No. 1 and Ganesh consumed the liquor. Ganesh told PW-6 that he would stay there and he will not go to his house. Thereafter, Accused No. 1 asked deceased whether he is coming with him as he is going to Vashi but he refused. Deceased removed golden chain, bracelet and three rings from his person and kept it in his inner pant pocket. Thereafter, Ganesh sat he sit in his Indica car on the front seat by the side of driver seat. The witness identified golden bracelete, golden chains with pendent, two golden rings and silver ring. These were kept by Ganesh in his pocket. In the cross-examination, he stated that while recording his statement he had disclosed to the police that Ganesh was having Rs. 20,000/- with him. The said fact is not appearing in his statement. He had also disclosed that Accused No.1 had asked the deceased whether he is ready to offer the drink since he is not having money but the said fact is not reflected in the said statement. He further stated that his first statement was recorded on 30/08/2009. He was called for interrogation about 4 times during the period from 30/08/2009 to 12/09/2009 before 09/09/2009 he never disclosed to the police that the deceased was wearing gold ornaments. The brother of the deceased met him and told to give statement before the police that the deceased removed his gold ornaments from his person and kept in his pant pocket. While recording the first statement dated 30/08/2009 he did not disclose to the police about alleged incident. The Accused were having cordial relation with the deceased. He came to know from brother of deceased that amount of Rs. 20,000/- of the deceased was missing. He did not disclose to the police while recording statement about description of articles, currency notes. 10. Pw-8 Danveer Kulkarni is a panch witness for recovery under section 27 at the instance of Accused No.1. The Acused No. 1 disclosed that he is ready to show the places where rope and the money purse were thrown by him as well as place where body was thrown. The Accused then took the Qualis vehicle and they went towards Shahapur. The Accused pointed out that he had purchased Biryani parcel and two bear bottles from Sai Dhaba. The Acused No. 1 disclosed that he is ready to show the places where rope and the money purse were thrown by him as well as place where body was thrown. The Accused then took the Qualis vehicle and they went towards Shahapur. The Accused pointed out that he had purchased Biryani parcel and two bear bottles from Sai Dhaba. Thereafter, proceeded towards Kasara Ghat. The Accused pointed out the place where he had thrown money purse. On search one piece of purse was recovered. The Accused identified the piece of purse. The same was seized. Thereafter, the police proceeded towards Kasara Ghat and the Accused No. 1 shown the place where dead body was thrown. The Accused then showed the place where he had thrown the rope by which he had throttled the deceased. The rope was recovered and seized which was blackish green color. Thereafter, the Accused disclosed places where he had left Indica vehicle which was towards Jawhar at Daman road. The vehicle was not there. In the cross-examination, he has stated that he has acted as pancha in 2-3 cases. Like piece of money purse and rope are easily available in the market. The rope was shown to him. He stated that it is the same rope but it is not same as blackish green. He also stated that because of rainy day there was mud at the place from where articles were seized. PW-9 Dr. Mahadeo Waghmare was serving with Primary Health Center, Kasara. He was called by the police for conducting postmortem of dead body in Kasara Ghat. He went to Kasara Ghat. He noticed dead body which was decomposed. The dead body was brought to morgue. On 01/09/2009 he conducted postmortem. He noticed bruises on thigh bilateral, chest both sides and lateral wall. No injuries seen on whole body as it was decomposed. He noticed internal injuries such as both lungs were congested, few clots in left ventricle, right ventricle emtity. Viscera was preserved and sent to C.A. At that time opinion of cause of death was reserved. After receiving the C.A. report, he gave cause of death as asphyxia due to throttling. The death was unnatural. Accordingly he Issued postmortem report (Exh.40). He issued cause of death certificate dated 18/12/2009. He stated that if anyone pressed by hard object on thighs, injuries shown in column no. 17 can be possible. After receiving the C.A. report, he gave cause of death as asphyxia due to throttling. The death was unnatural. Accordingly he Issued postmortem report (Exh.40). He issued cause of death certificate dated 18/12/2009. He stated that if anyone pressed by hard object on thighs, injuries shown in column no. 17 can be possible. He came to the conclusion that the death was due to throttling as his lungs were congested, face was swollen, compression of neck vessels due to which there was no supply of oxygen. In the cross-examination, he stated that face, neck and upper lung portions were decomposed. Except bruises there are no other injuries on the dead body. He referred to signs of asphyxia such as cyanosis, increased inpermability of capillaries region. He stated that the above symptoms were not found during the postmortem since the body was decomposed. Injuries on the front neck side hyoid bone should be fractured or not fractured can be a sign of throttling. Extra vassation of blood in inner side of neck can be a sign of throttling. No such sign was found while conducting postmortem. In the gross stage of decomposition, it is very difficult to give the opinion regarding cause of death. While conducting postmortem he did not notice that no sign of asphyxia ,no sign of throttling, no injuries around neck due to gross decomposition of dead body. There is difference between throttling and strangulation. Bruises of thighs can be possible if anyone comes into contact with hard rough surface. He did not give any opinion in col.no. 18(A). He did not mentioned in postmortem that injuries were dart. It is not mentioned in postmortem that neck vessels are compressed. If any person dies due to heart attack, symptom of congestion of lungs is seen as asphyxia. If there is suspicious death including poisoning, Vissera can be preserved PW10 Bhujan Hatmode is Police Sub Inspector attached to Kasara Police Station. He registered ADR on 1st September 2009. He conducted further investigation. In the cross-examination it was deposed that the dead body was having grey and black colored hair. Since the dead body was decomposed, the same was not in a position to identify. As the dead body was releasing fluid clothes became oily. Seizure panchanama Exhibit-47 was shown to him. He stated that there is no over writing over the date. PW-11 Prakash Maglappa Rao is a photographer. Since the dead body was decomposed, the same was not in a position to identify. As the dead body was releasing fluid clothes became oily. Seizure panchanama Exhibit-47 was shown to him. He stated that there is no over writing over the date. PW-11 Prakash Maglappa Rao is a photographer. He took photographs of dead body at Kasara Ghat. He also clicked photographs while exhuming the dead body. He also took photographs while the relatives of the deceased performed last rites. PW-12 Issak Hanif Shaikh acted as panch witness in several panchanamas. The Panchanamas Exhibit-56 and Exhibit-57 was relating to the spot where the deceased and the Accused had drink shown by Accused No.1. He also acted as panch in panchanama relating to statement of Accused No. 2, to show place where he sold one gold ring Exhibit-58. The next panchanama dated 2/10/2009 in respect to statement of Accused No.2 regarding place where he sold golden bracelet through relative Exhibit-59. On 06/10/2009 police opened seal of packet in which golden ornaments were kept. Witness identifies the same as belonging to deceased, which were on his person. Panchanama Exhibit-60 was recorded. On 8/10/2009 he acted as Pancha to statement of Accused No.1, about his willingness to show place, number plate of vehicle, mobile of deceased, keys of vehicle Exhibit-61. Number plate was recovered from bushes. Seizure Panchanama recorded Exhibit-62. On 02/12/2009 gold chain and silver ring shown to complainant. Complainant identified the same which was on person of deceased. Panchanama was recorded vide Exhibit-64. PW-12 acted as pancha in all these panchanamas. In the cross-examination he stated that he is acquainted with the police since last 30-35 years. In near about 1000-1200 cases he acted as pancha. He knows police officers Gaikwad, Kadam and Sawant since last 3-4 years. He is social worker and member of Police Committee. He is always available whenever police called him in the Police Station. He do not remember which documents were taken by the police from the Jewellers shop. The golden ornaments shown to him are available in the market. There are no specific identification marks on the ornaments. 11. Pw-13 Sambhaji Dhamankar is PSI attached to Crime Branch Unit-3. He refers to arrest Accused No. 1 and 2 in connection with another case. He do not remember which documents were taken by the police from the Jewellers shop. The golden ornaments shown to him are available in the market. There are no specific identification marks on the ornaments. 11. Pw-13 Sambhaji Dhamankar is PSI attached to Crime Branch Unit-3. He refers to arrest Accused No. 1 and 2 in connection with another case. He deposed that information was received that Accused No. 1 and his companion are likely to come near Pritam hotel, Dadar for committing robbery with weapons. The Accused No. 1 and 2 were apprehended. On search, Accused No. 1 was found in possession of pistol with magazin and five live rounds. On search of Accused No.2 money purse was found on his pocket, driving license and sim card were found. Accused No. 2 was found in possession of break frame revolver having six chambers with five live cartridges. PW 14 Subhana Naik is PSI attached to Crime Branch Unit-3. According to him during the investigation, Accused No. 1 disclosed that with the help of Accused No. 2 they committed murder of Ganesh Pudarkar. PW-15 Police Inspector Sitaram Ganpat Gaikwad is attached to Matunga Police Stataion. He conducted investigation. In the cross-examination he stated that on 30/08/2009 the complainant visited Matunga Police Station and lodged missing report. While lodging the missing cimplaint, he did not disclose that, while leaving home deceased worn 3 finger rings. While recording statement of PW6 he did not disclosed that initially he agreed to mortgage the gold rings. The omissions appearing in the statement of witness were proved through him. PW-16 Baburao Mahadik was attached to Matunga Police Station as Police Sub Inspector. He recorded missing complaint of the deceased at the instance of PW 1. PW-17 Ratilal Solanki is Assistant Sub Inspector with Daman Police Sation. He seized abandoned unnumbered Indica car. PW-18 Vilas Sonde is API attached to Kasara Police Station. He conducted investigation. He recorded subject matter statement of complainant. He recorded statements of other witnesses. Certain omissions were proved through his cross-examination. The defense examined DW-1 Wasim Khan, he stated that he had received call from the phone of the deceased on 30/08/2009 that his Indica car is stolen and whether he had seen it anywhere. In the cross-examination he stated that today the mobile number of deceased Ganesh is not available on his mobile. 12. The defense examined DW-1 Wasim Khan, he stated that he had received call from the phone of the deceased on 30/08/2009 that his Indica car is stolen and whether he had seen it anywhere. In the cross-examination he stated that today the mobile number of deceased Ganesh is not available on his mobile. 12. On the basis of he aforesaid evidence the Trial Court has convicted the appellants for the aforesaid offences. By analyzing the evidence as aforesaid, we have noticed that there are several infirmities in the evidence of witnesses. The prosecution is heavily relying upon the evidence of PW-5 and PW-7. The said witnesses were examined to establish one of the circumstance that the deceased was last seen in the company of accused. However, on perusal of their evidence we do not find that their evidence inspire confidence to convict the appellants. There is no eye witness to the incident. The case is entirely based on the circumstantial evidence. The deceased Ganesh Puradukar was missing from 29/08/2009. Missing complaint was filed on 30/08/2009. Body of unknown person was found at Kasara Ghat by Kasara Police Station as no one came forward to claim body, the same was buried. On learning about the news item in the newspaper about finding of dead body in Kasara Ghat, the family members and friends of deceased approached Kasara Police Station. They were shown articles which were purportedly found on the person of the dead body. They had identified the said articles. Photographs of dead body were shown to the witnesses. The dead body was decomposed. Subsequently, the body was exhumed which was sent for postmortem. The opinion about cause of death was reserved. The vescera was preserved on receipt of vescera report, the medical officer who conducted postmortem gave opinion that the death was due to asphyxia. The Accused were arrested in another case. They have allegedly confessed commission of the crime. It is pertinent to note that till they were arrested in another case, none suspected their involvement in the present crime. PW-5 and PW-7 did not disclose to the police that the Accused were last seen together with the deceased. It is after the arrest of the Accused the statements of PW-5 and PW-7 were recorded. The circumstance that the deceased was last seen with Accused is weak. PW-5 and PW-7 do not state that the deceased left with Accused. PW-5 and PW-7 did not disclose to the police that the Accused were last seen together with the deceased. It is after the arrest of the Accused the statements of PW-5 and PW-7 were recorded. The circumstance that the deceased was last seen with Accused is weak. PW-5 and PW-7 do not state that the deceased left with Accused. The Accused continued to be in the company of deceased. They were not seen at the company of each other by any person. 13. When the body was exhumed, it was in advance stage of decomposition. The evidence of the witnesses indicates that it was not possible to identify the dead body. PW-1 however, has stated that on account of operation mark on the leg of the deceased he could identify the dead body as that of Ganesh Pudarkar. However, in the cross-examination, it is brought on record that there was no reference of the operation mark on the dead body in the statement of PW-1 recorded by the police. On perusal of cross-examination of medical officer who conducted the postmortem it can be seen that he was not certain about the cause of death. It is not established beyond doubt that the victim was killed by using rope. The medical officer PW-9, in his cross-examination, has stated that certain signs which are apparent in the body of the deceased to determine throttling were not existing in the present case. It is pertinent to note that the body was in a decomposed position. There were several omissions as stated above in the evidence of PW-1, PW-2 and PW-5. The Trial Court has held that PW 1 identified the dead body from photograph. From the evidence of PW-1, PW-2 and PW5 it can be seen that these witnesses have not identified the dead body of the deceased from photographs. PW-10 has admitted that wife of deceased (PW 2) did not come to Kasara Police Station but identified the clothes of dead body. PW-18 contradicted PW-5 has he did not identified clothes and photo of the dead body. PW-6 Dattaram Konde has stated that it was difficult to identify dead body. PW-1 claimed to have identified the dead body from the clothes worn by deceased. In the crossexamination he has stated that he was not aware of clothes worn by Ganesh on 29/08/2009. PW-18 contradicted PW-5 has he did not identified clothes and photo of the dead body. PW-6 Dattaram Konde has stated that it was difficult to identify dead body. PW-1 claimed to have identified the dead body from the clothes worn by deceased. In the crossexamination he has stated that he was not aware of clothes worn by Ganesh on 29/08/2009. The seizer panchanama of clothes dated 09/09/009 (Exhibit-27) appears to have over writing with regards to change of dates which is admitted by PW-10. The evidence of PW-2 and PW-10 is contradicting to each other. PW5 has been examined to prove the last seen theory. He stated that deceased had worn light red color chex shirt when he lastly met him. In the cross-examination has stated material omission of identifying photo and clothes of the deceased at Kasara Police Station. PW-18 contradicted PW-5 has he admitted that PW5 did not identify clothes and photo of dead body. 14. The prosecution has relied upon the recovery of the nylon rope and money purse of the victim. PW-8 failed to identify the color of nylon rope. He stated that rope was blackish green. PW-15 has stated nylon rope was blackish but in the cross-examination he admitted its color was light green. PW-8 has admitted that at the time of recovery of nylon rope and money purse, it was raining and they were recovered from mud but they were not having patches of mud. 15. The Court considered authenticity of Disclosure and recovery panchnama of murder weapon (Nylon Rope Art-I), Money purse (Art-H) and number plates of Indica Car (Art-"M" Colly) belongs to the victim. As all these recoveries had been done from open place easily accessible to general people and that too after span of one month from the date of the incident The story of prosecution that they recovered the number plates of Indica Car allegedly belongs to the deceased from the open place from bushes at Wadala is doubtful. According to prosecution the accused drove the car till Daman, removed the number plates, came back to Mumbai and threw the same at Wadala. According to prosecution the accused drove the car till Daman, removed the number plates, came back to Mumbai and threw the same at Wadala. PW-12 who is a driver and recovery panch admitted in cross that, number plates of front and backside of the car are same size but the number plates before the court were of different size and instead of having 4 nut holes Art "M" Colly have only two nut holes. PW-12 further admitted that he was acquainted with police for 30 to 35 years. He also admitted that, whenever police calls he is available for them and conducted 1000-1200 panchanamas for police. 16. The prosecution totally failed to prove the cause of death because of the material contradiction in evidence of PW-9, Dr. Waghmare and his postmortem report. PW-9 admitted that the signs or symptoms of asphyxia such as cyanosis and increased impermeability of capillaries region were not found during conducting postmortem. He further admitted that injuries on the front neck side, fractured or non fractured of hyoid bone and extra vassation of blood in inner side of neck which are the signs of throttling were not found while conducting postmortem. He also admitted that he did not notice signs of asphyxia and throttling. He also admitted that he did not mention in postmortem report that neck vessels were found to have compression. He further admitted that congestion of lungs is common in heart attack case and swollen face is common in decomposed dead bodies. He further admitted that in gross stage of decomposition it was very difficult to give opinion of cause of death. 17. Pw-5 stated that on 29/08/2009, he met Ganesh at about 8 to 8.30 p.m. and saw golden ornaments such as golden chain and golden ring on the person of Ganesh. It is material omission admitted by him in cross-examination. PW-7 stated that Datta Seth (PW-5) met him and Ganesh. He contradicted with PW-5 as PW-5 neither came at Dadar and nor met Ganesh and PW-7. PW-7 is not trustworthy and reliable as he admitted in cross that he never disclosed police before 09/09/2009 that the deceased Ganesh was wearing the golden ornaments. He admitted that the brother of the deceased and Complainant (PW-1) met him and told him to give statement before the police that the deceased removed his golden ornaments from his person and kept in his pant pocket. He admitted that the brother of the deceased and Complainant (PW-1) met him and told him to give statement before the police that the deceased removed his golden ornaments from his person and kept in his pant pocket. He also admitted that he came to know from PW-1 that Rs.20,000/- were with him and Accused No.1, Anand asked the deceased, whether he is ready to offer him a drink since he had no money with him and on 3rd time and the deceased gave Rs.100/- to him to purchase a liquor. He again admitted that on 30/08/2009, while recordng his first statement, he did not disclose to the police about the alleged incident and also not disclosed the detail description of articles and currency notes. 18. Pw-1 while lodging the missing complaint mentioned two gold rings. PW-5 stated that on 29/08/2009, he met Ganesh at about 8 to 8.30 p.m. and saw golden ornaments such as golden chain and golden ring on the person of Ganesh. It is material omission admitted by him in cross examined. PW-5 admitted in cross that he did not meet Ganesh on 29/08/2009. There is no corroboration when PW-7 stated that he met Ganesh on 30/08/2009 and not on 29/08/2009 and had drink with him along with accused persons. He further admitted in cross that it is his omission to mention that the deceased was having Rs.20,000/-. PW-7 admitted that before 09/09/2009, he never disclosed the police that the deceased was wearing the golden ornaments. 19. Pw-5 admitted in cross that he did not meet Ganesh on 29/08/2009 and seen him wearing gold ornaments. 20. The Court held that the prosecution proved the circumstances against accused persons that on 05/09/2009 Accused No.2 Vijay Bahare led police to the shop of PW-3, Vijay Nagarkar and seized Art-E/2 golden ring by seizure panchnama. PW-3 claimed to run a Jeweller''s shop at Ghatkopar but failed to produce any evidence of being a jeweller. He further admitted that he was not having a license of selling and purchasing golden and silver ornaments. He was not maintaining any register and not having any documents to show that he had purchased a golden ring from Accused No.2. He further admitted that there were no special mark on Art-E/2 (golden ring) and not having any documentary proof to show that he had purchased the ring from Accused No.2. 21. He was not maintaining any register and not having any documents to show that he had purchased a golden ring from Accused No.2. He further admitted that there were no special mark on Art-E/2 (golden ring) and not having any documentary proof to show that he had purchased the ring from Accused No.2. 21. To summarize the defective evidence adduced by the prosecution, it is apparent that Pw-5 and Pw-7 were examined to establish the circumstance of last seen together. In the light of their doubtful version no reliance can be placed for convicting accuzed. None had seen the deceased with accused beyond the place below the bridge at T.T. circle at Dadar. The evidence of PW-4, Pw-6 and PW-12 relates to sale of gold ring and bracelet at the instance of Accused No.2. PW-3 is the shopkeeper with whom gold ring was mortgaged by accused No.2 PW-1 is brother of deceased who lodged complaint. In cross he stated that he was not aware which clothes were worn by deceased. There were omissions in his evidence such as (i) he was shown photographs and he identified body of his brother (ii) There was mark of operation on leg of his brother. He admitted that similar pouch is available in market. 22. Pw-2 is wife of deceased. Following omissions were brought in her evidence. (i) Chandmama disclosed that he had informed nephew that he saw deceased sleeping in car. (ii) Chandmama stated that deceased must have gone with passengers. (iii) She went to Kasara Police Station to identify clothes of deceased. PW-3 is the shopkeeper, Laxmi Jewellers where Accused No.2 mortgaged golden ring on 05/09/2009. On 29/09/2009 Accused No.2 was brought by police to his shop. He did not refer to seal while seizure. He had no license for sale/purchase of gold. There was no register. No document to show purchase. PW-4 is the Jeweller. On 11/09/2009 Pratibha and PW-6 went to his shop to sell articles through Accused No.2. The following infirmities brought in his cross examination. (i) He do not know with whom he spoke on phone. (ii) No lincse to sale/purchase of old gold ornaments. (iii) Omission that Pratibha needed money for hospital hence sold gold. (iv) Omission that Pratibha did not take receipt. (v) No description of ornaments in receipt. (vi) Similar ornaments are available in market. PW-5 has rendered following omissions in his evidence. (ii) No lincse to sale/purchase of old gold ornaments. (iii) Omission that Pratibha needed money for hospital hence sold gold. (iv) Omission that Pratibha did not take receipt. (v) No description of ornaments in receipt. (vi) Similar ornaments are available in market. PW-5 has rendered following omissions in his evidence. (i) Accused No.1 used to park car at same place where deceased used to park. (ii) He met deceased At 8.00 to 8.30 p.m. on 29/08/2009. (iii) On 29/08/2009 he saw gold ornaments viz. Gold chain, rings on person of deceased. (iv) When he had last seen deceased he was wearing light red coloured chex shirt. (v) Deepak Desai informed about news in "Pudhari" about recovery of dead body. (vi) He alongwith Nitin Naik, Vijay and relatives of deceased had gone to Kasara Police Station where they identified photograph, clothes, ornaments of deceased. (vii) He met deceased near Pritam Hotel. The witness also stated that (a) After 5 to 6 days of incident he came to know that Accused No.1 has committed murder of deceased. (b) He did not inform the police that Accused No.1 might have committed murder. (c) Face of deceased was disfigured in photograph. (d) Identified body due to clothes 23. Pw-6 knows Accused No.2. He is father of Pratibha. According to him ornaments were sold to PW-4 by him and Pratibha at the instance of Accused No.2. The following omissions were brought through his cross examination:- (i) Initially owner of shop agreed to mortgage ornaments for Rs.30,000/-. (ii) Chit was handed over to shop owner PW-4 containing phone number of Accused. (iii) Accused No.2 in his presence gave bracelet and golden ring to Pratibha. (iv) Accused No.2 told Jeweller that instead of mortgage he would sell the ornaments. (v) Jeweller had informed that he had melted ornaments. PW-7 is the witness for last seen with deceased. The evidence suffered from following discrepancies. (a) Ganesh (deceased) was having Rs.20,000/-(omission); (b) He did not disclose to police about incident took place on 30/08/2009; (c) Accused No.1 asked for drinks to deceased (omission); (d) He was interrogated four times from 31/08/2009 to 12/09/2009. PW-7 is the witness for last seen with deceased. The evidence suffered from following discrepancies. (a) Ganesh (deceased) was having Rs.20,000/-(omission); (b) He did not disclose to police about incident took place on 30/08/2009; (c) Accused No.1 asked for drinks to deceased (omission); (d) He was interrogated four times from 31/08/2009 to 12/09/2009. Before 09/09/2009 he never disclosed to police that deceased was wearing golden ornaments; (e) Brother of deceased told him to give statement to police about removal of ornaments by deceased from his person and keeping them in inner pocket; (f) Did not give description of articles in statement. PW-8-Discrepancy in colour of rope. He stated that money purse and rope is available in market. 24. Pw-9 is uncertain about cause of death. According to him no injuries seen on whole body as it was decomposed. It would be relevant to quote his evidence in paragraphs 6, 7 and 8 of his deposition. "Para.6 Face, neck and upper limb portions were decomposed. Except bruises there is no other injuries on the dead body. Following are signs are asphyxia such as cyanosis, increased inpermability of capillaries region. It is true that above symptoms were not found during conducting postmortem report since the body was decomposed. Injuries on the front neck side, hyoid bone should be fractured or not fractured can be a sign of throttling. Extra vassation of blood into inner side of neck can be a sign of throttling. No such sign was found while conducting postmortem. In gross stage of decomposition, it is very difficult to give the opinion regarding cause of death. It is true that while conducting postmortem I did not notice that no sign of asphyxia, no sign of gross decomposition of dead body. There is difference between throttling and strangulation. Para.7. It is not true that I issued cause of death certificate on the say of police. Bruises of thighs can be possible if anyone come in contact with hard rough surface. Para.8. Injuries as shown in col.no.17 are antemortem, but I did not give any opinion in col. no. 18(a). As the edges were sharp and colour were dark and therefore I can say that injuries as shown in col no. 17 are antemortem. I have not mentioned in postmortem that injuries were dark. It is not mentioned in postmortem report that neck vessels are compressed. no. 18(a). As the edges were sharp and colour were dark and therefore I can say that injuries as shown in col no. 17 are antemortem. I have not mentioned in postmortem that injuries were dark. It is not mentioned in postmortem report that neck vessels are compressed. If any person died due to heart attack, symptoms of congestion of lungs is seen as in asphyxia. If there is suspicious death including poisoning, vescera can be preserved. Generally decomposed body is swollen. It is not true that I have issued a false postmortem report and opined at the instance of police." 25. Pw-10 has deposed that (i) It was difficult to identify dead body; (ii) The dead body had grey/black hair; (iii) Chappal was lying near body; (iv) Over writing seen on panchanama (iv) Wife of deceased (PW-2) did not come to Police Station to identify clothes of deceased. PW-12 deposed that (a) He acted as panch in 1200 cases. (b) Knows police from 30 to 35 years (c) Always available to police. (d) Do not remember which document was collected by police from shop. (e) Ornaments are available in market. (f) No specific identification mark on ornaments. 26. In light of the aforesaid circumstances we do not find that the prosecution has been able to prove its case beyond reasonable doubt and hence the judgment of conviction is required to be set aside. 27. Hence, we pass the following order: ORDER 1. The Judgment and order dated 21/03/2012 in Sessions Case No. 60 of 2010 delivered by Ad-hoc Additional Sessions Judge, Greater Bombay at Sewree is quashed and set aside. 2. Both the Appellants are acquitted of the offence as charged. 3. They shall be set at liberty forthwith, if their custody is not required by State in any other matter. 4. Muddemal property be dealt with as directed by Trial Court after appeal period is over.