JUDGMENT : (Umesh A. Trivedi, J.) : 1. This Appeal is filed by the appellant – first informant challenging the judgment and order of acquittal recorded by the Sessions Judge, Morbi dated 07.07.2018 in Sessions Case No.50 of 2015 whereby the respondent – accused came to be acquitted of the charge levelled against him. 2. Brief facts of the prosecution case is as under: 2.1 According to the case of the prosecution, daughter of the first informant – Jeetuben married respondent – accused and they were blessed with two children. However, there were matrimonial disputes between them, and therefore, there was divorce between the parties. Despite that, daughter of the first informant – deceased and the respondent – accused used to frequently meet. As pleaded by the prosecution, deceased was insisting on the respondent – accused to again marry and pressurizing him. With a view to avoid that, the respondent – accused is alleged to take the deceased to a secluded place and strangulated her to death and threw the dead body in a well, and therefore, FIR came to be filed by the first informant. 3. Mr. Niyant Bhimani, learned advocate for the appellant, submitted that the case of the prosecution is corroborated by the deposition of the Medical Officer, First Information Report, Panchnamas drawn, deposition of Scientific Officer who visited the spot and deposition of the Investigating Officer, which clearly reveals that the respondent – accused committed the aforesaid offence, and therefore, the judgment and order of acquittal recorded by the learned Judge is required to be quashed and set aside and he be convicted suitably for the offence committed by him. 4. Initially, Record and Proceedings was called for from the trial Court, which was received by this Court. Since the Appeal was beyond the period of limitation, an application for condonation of delay was filed wherein the respondent – accused was represented through advocate Mr. Yogeshkumar A. Ratanpara. Since he appeared in delay condonation application, his appearance is also shown in this Appeal as well. However, admission of an Appeal is between the appellant and the Court, and therefore, we have not called upon Mr. Ratanpara, learned advocate for respondent – accused. 5. Yogeshkumar A. Ratanpara. Since he appeared in delay condonation application, his appearance is also shown in this Appeal as well. However, admission of an Appeal is between the appellant and the Court, and therefore, we have not called upon Mr. Ratanpara, learned advocate for respondent – accused. 5. Having heard learned advocate for the appellant and going through the entire Record and Proceedings, including the impugned judgment and order, it appears that there are no eye witnesses to the incident and the case rests on circumstantial evidence. As coming out from the record, on 25.04.2015 deceased rejoined her parental home informing the first informant – father that she has obtained divorce from the respondent – accused. Since then, she was staying with the first informant and doing labour work. On 06.09.2015 at about 9:00 p.m. after finishing dinner, deceased – Jeetuben informed her parents that she wants to go to fair. However, till late midnight, she did not return back. First informant and family members thought that she might have gone to meet Vanita, her daughter, at her matrimonial home. She was having two mobile numbers, which is mentioned in the FIR and on the next day first informant called his granddaughter Vanita to know whereabouts of deceased – Jeetuben but Vanita informed them that neither Jeetuben met her nor she had visited the house, and therefore, first informant dialed the call to deceased - Jeetuben but it was disconnected. As coming out from the First Information Report, since call was disconnected thrice, first informant thought that she might have gone to her cousins house, and therefore, thereafter he did not call her. Though, their family members knew about it, nobody bothered to inquire about her whereabouts. However, on the fourth day after she left home, at about 11:00 a.m., son-in-law of first informant was informed about missing of Jeetuben and he was asked to dial her number. However, phone of Jeetuben was switched off. It is further asserted in the First Information Report that he did not inform either his son-in-law or coparent- in-law or even the Police. However, phone of Jeetuben was switched off. It is further asserted in the First Information Report that he did not inform either his son-in-law or coparent- in-law or even the Police. On 11.09.2015, at about 6:37 p.m., he received a phone call that one dead body of a female is recovered and he was called to verify the same, and therefore, first informant and his son went to the Government Hospital, Morbi and dead body of the deceased – Jeetuben was seen in total decomposed state but on the basis of clothes worn, dead body was identified to be of his daughter. The dead body was found from a well of one farm called “pavtha ni vadi” 3 kms away from the residence of first informant. Thereafter, dead body was sent for Post Mortem and after that it was entrusted to the first informant. Neither the husband of Jeetuben nor co-parent-in-law of first informant or her children were informed about the death and called for cremation. Thus, two days thereafter i.e. on 13.09.2015, at about 4:00 p.m., appellant filed First Information Report, that too, against unknown person in respect of death of his daughter. 5.1 During the course of investigation, on the basis of analysis of call details of two mobile numbers, which is claimed to be used by the deceased, respondent – accused was called at the Police Station as a suspect. During the course of interrogation, respondent – accused is claimed to have admitted the guilt and volunteered to show the articles used for commission of offence as also the respondent – accused was to be arrested in connection with the offence, two panchas were called and discovery panchnama is also claimed to have been drawn. 5.2 It is claimed by the prosecution that the respondent – accused led the Police and Panch Witness to his house and showed the Motorcycle parked outside his house near the street, which was used to meet the deceased, and therefore, it came to be seized. However, leaving three to four houses in the very street, one open courtyard belonging to the respondent – accused was there. However, leaving three to four houses in the very street, one open courtyard belonging to the respondent – accused was there. He led the police there and from the dunghill, he took out a plastic bag containing one mobile phone of Intex Company without SIM card, two SIM cards bearing number 7203044594 and 9714770714, one small purse of Kanaiya Jwellers, Morbi containing Election Card in the name of Jeetuben, one broken Mangalsutra and one photograph of husband-wife and two children i.e. deceased Jeetuben, respondent – accused her husband and their two children. Thereafter, on conclusion of that panchnama, respondent – accused came to be arrested in connection with the present offence. 5.3 To prove the case against the respondent – accused, the prosecution examined in all 16 witnesses and produced and proved nearly 37 documents. On conclusion of trial and hearing the arguments of the parties, learned Judge has passed the impugned judgment and order acquitting the respondent – accused of the charge under Section 302 of the Indian Penal Code. Learned Judge while appreciating the evidence and determining the case, first ascertained whether death of the deceased – Jeetuben is culpable homicide or not. In that attempt, learned Judge considered the deposition of P.W. 2 Doctor Raghurajsinh Dhirubha Vaghela, who conducted Post Mortem of the dead body on 12.09.2015. According to the Doctor, dead body was in the state of decomposition emitting foul smell. Post Mortem lividity could not be appreciated due to changes of decomposition. Epidermis is peeled off and marbelling and greenish black discolouration of skin present over available body parts. As such, dead body was not in a position of being identified but on the basis of, perhaps, ornaments as also clothes worn by the deceased, it could be identified. As coming out from the deposition of P.W. 2 – Doctor Raghurajsinh Dhirubha Vaghela cause of death was kept pending till reports of viscera preserved for chemical analysis was received. On receipt thereof, final cause of death certificate is given by Doctor at Exh.19 to be “no opinion can be given regarding cause of death”. 5.4 Thus, the learned Judge has concluded that the prosecution failed to establish the death of the deceased Jeetuben to be homicidal. On receipt thereof, final cause of death certificate is given by Doctor at Exh.19 to be “no opinion can be given regarding cause of death”. 5.4 Thus, the learned Judge has concluded that the prosecution failed to establish the death of the deceased Jeetuben to be homicidal. However, considering the time length between the date of missing of deceased and performing Post Mortem over the dead body, which was found a day before the Post Mortem, involvement of the respondent - accused in commission of crime is dependent on second issue framed by the learned Judge, which alleges that respondent – accused has committed murder of the deceased. Therefore, the learned Judge went on finding out whether the respondent - accused can be held guilty for commission of an offence of murder or not. 5.5 Considering the deposition of P.W. 1 – Devkaranbhai Naranbhai Dabhi – first informant, it is clear that he is not knowing who the author of the crime is. However, in his examination-in-chief P.W. 1 Devkaranbhai Naranbhai Dabhi – first informant deposed to that respondent – accused took away Jeetuben from the fair, strangulated her 3 km away from the farm of the first informant and he took away the mobile phone used by the deceased. It was further informed to the Police that when the first informant attempted to call the deceased, it was respondent – accused who was disconnecting the phone. He has identified the mobile instrument, which is claimed to be discovered at the instance of the accused by the prosecution. However, first informant is duly cross examined by the defence. He had to admit that for missing of his daughter, till dead body is found, first informant had not informed the Police about the same. As also FIR came to be filed against unknown person by him. 5.6 At he same time, he had to admit that even in police complaint he had not shown name of anyone as suspect. He had denied the suggestion that police informed him that someone unknown strangulated her, and therefore, such complaint is filed, that means first informant has filed the complaint against unknown person without even suspecting the respondent - accused to be murderer of his daughter. He had denied the suggestion that police informed him that someone unknown strangulated her, and therefore, such complaint is filed, that means first informant has filed the complaint against unknown person without even suspecting the respondent - accused to be murderer of his daughter. First informant has further admitted that because of quarrel with her daughter while she was staying with him, respondent - accused filed police complaint as also chapter case against her. At the same time, he has admitted that his daughter had also filed police case and chapter case against him. He has further admitted that he did not inform the respondent – accused and his children about the death of the deceased and cremation of her dead body. 5.7 In this case, pursuant to an information by Devkaranbhai Naranbhai, noticing dead body in a half built /incompletely built well without precautionary wall nearly 20 to 25 feet deep having no water in it, the dead body of the deceased, an Accidental Death Case No.41 of 2015 came to be registered at Morbi City A Division Police Station. However, neither Devkaranbhai Naranbhai is examined as a witness in this case nor Accidental Death Case recorded in the Register of the Police Station is produced by the prosecution. However, P.W. 15 – Osmanbhai Bilalbhai Majgul - PSI is examined and it is stated that investigation into the Accidental Death Case registered on 11.09.2015 was entrusted to him. Therefore, an inquest over the dead body came to be executed on 12.09.2015, place of offence panchnama also came to be executed on 12.09.2015 in presence of P.W. 9 – Dayaram Naranbhai Kanzaria. However, except the dead body found from the unused well alongwith blue coloured cloth piece, packet of bindi as also black colored mobile charger and footwear nothing else is found. 5.8 The Panch Witnesses to the discovery panchnama, at the instance of the respondent – accused, whereby mobile instrument claimed to be used by the deceased, two SIM cards bearing mobile number as aforesaid, a small purse of Kanaiya Jewelers, Morbi where from the election card in the name of deceased and a broken necklace (Mangalsutra) and photograph of deceased, respondent - accused and two children were discovered, both the Panch Witnesses P.W. 10 - Shabirbhai Kasambhai Qureshi and P.W. 11 Rajakbhai Umarbhai have not supported the case of prosecution. Therefore, discovery of these articles, which may connect the respondent - accused with the crime is not proved by the prosecution. However, Police Officer Shri A.P. Patel, who carried out the aforesaid discovery panchnama Exh.38 PSI, Morbi City ‘A’ Division Police Station is not examined by the prosecution. At the same time, the Investigating Officer P.W. 16 – Ranjithsinh Anupsinh Sodha has also not stated anything about the voluntary disclosure made by the respondent - accused of the articles, which are claimed to be discovered at his instance. At the same time, Shri A.P. Patel, the then PSI, who drew the panchnama is also not examined by the prosecution. Recovery of those articles, which may connect the respondent - accused with the crime cannot be stated to be proved and utilized for holding him guilty of offence as one of the circumstance. Therefore, even if mobile instrument is identified by the father of the deceased, it is of no use. 5.9 Not only that, on the basis of call details, as claimed by the prosecution, the respondent – accused was called as suspect in the Police Station and before even he is arrested aforesaid discovery panchnama at Exh.38 came to be executed. Apart from, whether it can be considered as a panchnama drawn under Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as ‘the Act’) or not, since voluntary disclosure by the respondent - accused is not proved even the entire recovery of those articles cannot connect the respondent - accused with the crime. Not only the respondent - accused was called as suspect, based on the analysis of call details, those call details are produced at Exh.63 by Investigating Officer P.W. 16. It Is without any certificate by the competent authority and it is not proved under Section 65B of ‘the Act’, and therefore also calling him as a suspect based on call details so as to record discovery of certain articles can also not be used as an evidence to indict the respondent – accused. 5.10 Yet another reason weighed with the learned Judge that despite deceased went to attend fair on 06.09.2015 till late night she did not turn up, till dead body is found or even FIR is registered, neither father nor other family members bothered to even give missing report for the same. 5.10 Yet another reason weighed with the learned Judge that despite deceased went to attend fair on 06.09.2015 till late night she did not turn up, till dead body is found or even FIR is registered, neither father nor other family members bothered to even give missing report for the same. Even the owner of the field, where unbuilt well is situated without any protection, is examined as P.W. 7 -Bhagvanjibhai Motibhai Dabhi, who did not support the case of the prosecution. Therefore, even dead body found from that well is also not proved by the prosecution. At any rate, it has no connection with the crime committed by the respondent – accused, as claimed by the prosecution. 5.11 Further more, prosecution has attempted to prove that after committing murder of the deceased, respondent – accused kept with him the mobile phone alongwith SIM card in it of the number deposed to by the father of the deceased and he continued to utilize the said SIM card for showing it in working condition even after death of the deceased to mislead the prosecution. However, as stated hereinabove, in absence of call details produced having certificate as envisaged under Section 65B of ‘the Act’ and further fact that a particular number mentioned in it belongs to whom, those call details cannot be said to be proved to be belonging to either the respondent - accused or the deceased. In short, there appears no evidence on any issue, which may connect the respondent – accused with the crime. The learned Judge while recording an order of acquittal considered even each and every circumstance as appearing against the respondent - accused and concluded in a well reasoned judgment that the prosecution has failed to establish guilt of the respondent - accused. 6. While exercising appellate jurisdiction in a case of Appeal, against order of acquittal by calling Record and Proceedings from trial Court, we have examined and considered in detail the evidence led as also the documents proved by the prosecution but we do not find any material appearing against the respondent - accused so as to connect shim with the crime, that too, of murder of his own ex wife. 7. 7. We are conscious of our jurisdiction, that too, in Appeal challenging the order of acquittal of the respondent - accused that even if two views are possible, view which is favourable to the accused is to be accepted. However, there is no view other than the view possible taken by the learned Judge on reappreciation of the evidence on facts as also on law. Hence, we do not find any merit in this Appeal. At the same time, State has also not considered the judgment and order of acquittal to be appealable and accepted the communication in respect thereof dated 15.09.2018 addressed to the Public Prosecutor, District Government Pleader Office, Rajkot. We are unable to find any flaw in the judgment and order of acquittal, and therefore, we hereby dismiss the Appeal. 8. Record and Proceedings be sent back to the trial Court forthwith.