A crime against the accused must always be proved beyond reasonable doubt: Bombay High Court
The prosecution in a criminal case, especially that of a murder, must make all efforts to prove that the allegations against the accused are true beyond reasonable doubt, held, a division bench of Justice VK Jadhav and SG Dige, while adjudicating the matter in Sachin v. State of Maharashtra; [CRIMINAL APPEAL NO. 245 OF 2014] The informant Sanjay Ware is having an agricultural land at Lohasar, taluka Pathardi and he has constructed his residential house in the field itself. He was residing there along with his wife Vaishali (deceased), two sons and one daughter. The appellant-accused no.1 Sachin Chavan was working in his field since one and half year prior to the incident. The informant’s wife, namely deceased Vaishali, was having a sim-card of Idea Cellular Company. It was given to appellant-accused no.1 Sachin. The informant or his wife Vaishali used to contact appellant-accused no.1 Sachin on the said sim-card/cell phone in connection with the agricultural work. According to the prosecution, due to frequent visits to the house of the informant by appellant-accused no.1 Sachin and also due to use of the said sim-card for contact purposes, the appellant-accused no.1 Sachin had developed intimacy with the wife of the informant, namely, Vaishali (deceased). It is also the case of the prosecution that the appellant-accused no.1 Sachin had developed an evil eye on deceased Vaishali. Even deceased Vaishali had informed the same to the informant Sanjay. About two months prior to the incident, the appellant-accused no.1 Sachin had made an attempt to outrage the modesty of deceased Vaishali and she had beaten him with the help of her slippers. It is also the case of the prosecution that thereafter, informant Sanjay and deceased Vaishali both had asked the appellant-accused no.1 Sachin not to come to their house. However, accused no.1 Sachin was trying to remain in contact with deceased Vaishali. deceased Vaishali had gone to the weekly market at Karanji for purchasing the essentials on the eve of the Sankranti festival. She had taken Rs.500/- from the informant husband Sanjay and left the house at about 9.00 a.m. However, she did not return to the house from the weekly market. The informant Sanjay and his brother-in-law had tried to search Vaishali, however they could not trace out her for about two days. The learned Additional Sessions Judge framed charge against both the accused under Sections 302, 201, 404 read with 34 of IPC. Both the accused pleaded not guilty to the charge and claimed to be tried.
 on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL APPEAL NO. 245 OF 20141.Sachin S o Jalindar ChavanAge : 27 years Occ LabourR o. Pawalwadi Taluka PathardiDistrict Ahmednagar.2.Babasaheb S o Jalindar ChavanAge : 31 years Occ LabourR o. Pawalwadi Taluka PathardiDistrict Ahmednagar.… Appellants(Orig. Accuses)VersusThe State of Maharashtra… Respondent…..Mr. N. C. Garud Advocate for the AppellantsMr. S. D. Ghayal APP for the Respondent State. …..CORAM : V. K. JADHAV ANDS. G. DIGE JJ. RESERVED ON : 30.06.2021PRONOUNCED ON : 09.07.2021 JUDGMENT: 1.This appeal is directed against the judgment and order ofconviction dated 24.02.2014 passed by the Additional SessionsJudge Ahmednagar in Sessions Case No. 1313. on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 2 2.Brief facts giving rise to the present appeal are as under:a.The informant Sanjay Ware is having an agricultural land atLohasar taluka Pathardi and he has constructed his residentialhouse in the field itself. He was residing there along with his wifeVaishalitwo sons and one daughter. The appellant accused no.1 Sachin Chavan was working in his field since one andhalf year prior to the incident. The informant’s wife namelydeceased Vaishali was having a sim card of Idea Cellular Company.It was given to appellant accused no.1 Sachin. The informant or hiswife Vaishali used to contact appellant accused no.1 Sachin on thesaid sim card cell phone in connection with the agricultural work.According to the prosecution due to frequent visits to the house ofthe informant by appellant accused no.1 Sachin and also due touse of the said sim card for contact purposes the appellant accusedno.1 Sachin had developed intimacy with the wife of the informant namely Vaishaliprepared spot panchanama Exhibit 31 in thepresence of the panchas and seized certain articles including theblood stained stone lying at the spot. He also prepared the inquestpanchanama Exhibit 37 on the dead body. He also sent the deadbody of deceased Vaishali to Sub District Hospital Pathardi forpostmortem examination. After receipt of the report of viscera the on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 5 medical officer who has conducted the postmortem examination gave opinion that deceased died due to head injury. PW 14Investigating Officer Ashok Amle has also seized the cloths on thedead body and seizure panchanama was also drawn. During thecourse of investigation while in police custody accused no.1Sachin has made a disclosure statement to produce the sim cardwhich was handed over to him by Vaishali and accordingly thesame was recovered by drawing memorandum panchanama.Appellant accused no.2 Babasaheb Chavan also made a voluntarystatement to produce mangalsutra and ear rings belonging todeceased Vaishali and accordingly the memorandum of recoverywas drawn in presence of the panchas. PW 14 Investigating OfficerAshok Amle also seized the cloths on the person of both theaccused under the panchanama. During investigation the calldetail record of both the accused persons was collected from theIdea Cellular Company. The Investigating Officer then sent thecloths having blood stains and the articles seized from the spot tothe Chemical Analyzer and after receipt of the report from theChemical Analyzer submitted charge sheet against both theaccused for having committed offence punishable under Sections302 201 read with 34 of IPC. on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 6 f. The learned Additional Sessions Judge framed chargeagainst both the accused under Sections 302 201 404 read with34 of IPC. Both the accused pleaded not guilty to the charge andclaimed to be tried. The prosecution has examined in all 14witnesses to substantiate the charge leveled against the accused.The defence of both the accused is of total denial and falseimplication. Their statements under Section 313 of Cr.P.C. came tobe recorded.g.The learned Additional Sessions Judge Ahmednagar by theimpugned judgment and order dated 24.02.2014 has convicted theaccused persons as follows:1.Accused No. 1 Sachin Chavan is hereby convicted of theoffence of murder punishable under section 302 ofIndian Penal Code and sentenced to sufferimprisonment for life.2.Accused No. 2 Babasaheb Chavan is hereby acquitted ofthe offence punishable under section 302 of IndianPenal Code.3.Accused Nos. 1 Sachin Chavan and No. 2 BabasahebChavan are hereby acquitted under section 201 ofIndian Penal Code.4.Accused Nos. 1 Sachin Chavan & accused No.2Babasaheb Chavan are hereby convicted under section404 of Indian Penal Code and sentenced to suffer on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 7 Rigorous Imprisonment for period of one year and topay fine of Rs.1 000 each indefault of fine to undergo simple imprisonment forfurther period of Three Months.5.Both sentences awarded to accused Nos. 1 SachinChavan and No.2 Babasaheb Chavan shall runconcurrently.6.Accused Nos. 1 Sachin Chavan and No. 2 BabasahebChavan are entitled for set off remission under section428 of the Code of Criminal Procedure.7.…...3.Hence this Appeal.4.Learned counsel for the appellants accused submits that theprosecution case rests entirely upon circumstantial evidence andthere is no direct evidence in this case. PW Sanjay Ware has lodgedthe missing report in Pathardi Police Station after a considerablegap. Deceased Vaishali was found missing from 08.01.2013.However PW Sanjay Ware has lodged the missing report Exhibit 28on 11.01.2013 in Pathardi Police Station. In the said missing reportExhibit 28 PW Sanjay Ware has neither made any allegationsagainst accused no.1 Sachin nor expressed any suspicion againsthim. PW 3 Laxman Auti Police Naik was entrusted with the inquiryof the missing report Exhibit 28. According to said Police Naik PW on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 8 3 Laxman Auti he came to know from PW Sanjay Warethat several calls were made on the cell number ofdeceased Vaishali and those calls were received from one particularnumber. Thus he obtained the call details of the said number andalso traced out the location of the said cell phone. The said calldetail reports are marked at Exhibits 34 and 35 respectively. PWSanjay Ware has informed the Police Naik PW 3 Laxman Auti thatthose calls are from the cell phone of accused no.1 Sachin Chavan.On 14.01.2013 the Police party went to Nepti Naka and effectedarrest of accused no.1 Sachin Chavan in presence of thecomplainant PW Sanjay and his brother in law. Learned counsel forthe appellants submits that it is the case of the prosecution thataccused Sachin has made a voluntary statement to show the spotwhere the dead body was lying and accordingly the police party the informant and others went to the spot of incident and thepolice had drawn the spot panchanama Exhibit 31. Only thereafter PW Sanjay Ware has lodged the complaint Exhibit 29. Learnedcounsel submits that there is no memorandum panchanama drawnby the police for the alleged statement made by accused Sachinbefore showing the spot of incident where the dead body was lying.The learned counsel submits that the statement to that effectrecorded in the spot panchanama Exhibit 31 is not admissible inevidence. on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 9 5.Learned counsel for the appellants submits that theprosecution has failed to prove the chain of circumstantialevidence. The motive as alleged by the prosecution is very weak inthis case. The prosecution case entirely rests upon the solecircumstance that deceased Vaishali was lastly seen alive in thecompany of accused no.1 Sachin in the weekly market of villageKaranji. The prosecution has examined one Mithu Giteonthat point. According to PW 5 Mithu Gite on 08.01.2013 at about11 a.m. to 11.30 a.m. he had seen deceased Vaishali on themotorcycle of accused no.1 Sachin Chavan. Learned counselsubmits that this evidence is contrary to the motive as alleged bythe prosecution. If at all deceased Vaishali had extended beating toaccused no.1 Sachin because of his mis behaviour some twomonths prior to the incident and even though deceased Vaishaliand her husband PW Sanjay had told accused no.1 Sachin not tocome to their house it was very unlikely on the part of deceasedVaishali to sit on the motorcycle of accused no.1 Sachin in theweekly market. In the backdrop of the evidence of PW 5 MithuGite there was no apparent reason for accused no.1 Sachin tomurder deceased Vaishali by taking her to an isolated place in thevalley of Vrudhheshwar. Learned counsel submits that even if thiscircumstance of last seen together is accepted as it is there isconsiderable time gap between the said last seen together and the on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 10 death of deceased Vaishali. Some eight days after the saidcircumstance of last seen together the dead body of deceased waslocated.6.Learned counsel for the appellants submits that there was noidentification of the dead body and as per the opinion expressed bythe medical officer who has conducted the postmortemexaminationthe dead body was indecomposed condition with disfigurement of face. Thus personalidentification of the body could not have been ascertained.7.Learned counsel for the appellants submits that so far as therecovery of sim cards from accused no.1 Sachin is concerned thesaid recovery is meaningless for the reason that admittedly the saidsim card was given to him by PW Sanjay and deceased Vaishaliduring the course of employment of accused Sachin with them.Furthermore the recovery of motorcycle has also no meaning.Learned counsel submits that even though one mangalsutra shownto have been recovered at the instance of accused no.2 BabasahebChavan however there is no further connecting evidence throughPW Sanjay Ware that the said mangalsutra was belonging todeceased Vaishali. Learned counsel submits that as per theallegations made in the complaint two sim cards were given to on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 11 accused Sachin and the same shown to have been recovered undermemorandum of recovery panchanama Exhibits 53 and 54respectively. Learned counsel submits that even though the calldetail records Exhibits 34 and 35 are accepted as it is it indicatesthat several calls were made using the cell number of Vaishali andeven till 15.01.2013 calls were made on the cell number ofdeceased Vaishali from those sim cards. Learned counsel submitsthat if at all accused no.1 Sachin along with his brother accusedno.2 Babasaheb have committed murder of deceased Vaishali therewas no reason for accused no.1 to make phone calls on the cellphone of deceased Vaishali. Learned counsel submits that there isno chain of circumstantial evidence unerringly pointing out theguilt of the accused. Both the appellants accused nos. 1 and 2 areentitled for the benefit of doubt.8.Learned APP submits that the prosecution has proved its casebeyond reasonable doubt. The prosecution has proved thehomicidal death beyond doubt and the dead body was dulyidentified by PW Sanjay as of his wife deceased Vaishali on thebasis of the cloths and other articles found on the dead body.Learned APP submits that there is strong motive for the appellantaccused no.1 Sachin to commit murder of deceased Vaishali.Deceased Vaishali had beaten accused no.1 Sachin because of his on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 12 mis behaviour. Thus accused no.1 Sachin had a grudge against her.On the day of incident i.e. on 08.01.2013 deceased Vaishali waslastly seen alive in the company of accused no.1 Sachin at about 11a.m. to 11.30 a.m. in the weekly market at village Karanji by PW 5Mithu Gite. Prosecution has examined PW 5 Mithu Gite to provethe said circumstance of last seen together. The dead body wasrecovered on the basis of the disclosure statement made by accusedno.1 Sachin. Learned APP submits that at the instance of accusedno.1 Sachin the sim cards came to be seized by drawingmemorandum of recovery panchanama Exhibits 53 and 54 and alsorecovered the mangalsutra of deceased Vaishali at the instance ofaccused no.2 Babasaheb by drawing memorandum panchanamaand recovery panchanama Exhibit 52 and 52A. Learned APPsubmits that learned Additional Sessions Judge Ahmednagar hasrightly convicted accused no.1 Sachin for the offence punishableunder Section 302 of IPC and also convicted both the accusedpersons for the offence punishable under Section 404 of IPC. Thereis no substance in this appeal and the appeal is thus liable to bedismissed.9.The prosecution case entirely rests upon circumstantialevidence and there is no direct evidence in this case. on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 13 10.The prosecution has examined PW 8 Dr. Manisha Hange andPW 12 Dr. Pandit Raosaheb Shirsath. Both the doctors haveconducted postmortem examination on the dead body of Vaishali.In column no. 17 of the report Exhibit 48 it is mentioned as :“Surface wound injuries over face & head are notedas follows : there is total disfigurement of jaw andfacial structure fragmentary remains of maxillaryarch fracture mandible total dislodgment from TMjoint absence of facial structure including facial skin soft tissue eyeballs nose tongue lips and cheek.Skull has been crushed with fragmentary remains ofskull bone absence of brain tissue noted.”In addition to this in column no. 16 :“there is absence of right hand right forearm lower2 3rd of right arm exposing right humerus shaft”Certain injuries are also noted those may be due to body part eatenby animals. It is mentioned that the injuries mentioned over theextrimities are postmortem in nature. However the injuriesmentioned in column no. 17 are anti mortem in nature. 11.Initially the opinion was reserved till the report of viscera.However after receipt of viscera PW 12 Dr. Pandit Shirsath has on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 14 opined that deceased might have died due to head injury. Both themedical experts have accepted that the body was in highlydecomposed condition and therefore the final cause of death couldnot be given. On the basis of certain injuries on head Dr. PanditShirsathhas given the opinion that deceased might havedied due to head injury. It appears from the evidence of both themedical experts that due to disfigurement of face personal identityof the body could not be ascertained. On the basis of the injuries asdetailed in column no. 17 of the postmortem report Exhibit 48 aninference could be drawn about homicidal death. However theprosecution has not firmly established that the said dead body wasof deceased Vaishali.12.PW Sanjay Ware has deposed that he had identified the deadbody as of his wife Vaishali on the basis of her ear rings mangalsutra scarf and slippers. He has further explained thataccused no.2 Babasaheb had taken out the ornaments and otherarticles from the dead body of Vaishali. According to him he hadidentified the dead body of Vaishali on the basis of the sari on herbody bangles and slippers. We have carefully gone through thecontents of the spot panchanama and the articles seized from thespot. It appears that the said spot panchanama Exhibit 31 wasdrawn on 17.01.2013 and the Investigating Officer has seized five on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 15 articles. Those articles arethe long hairs socked in blood ofdeceased stones stained with blood the blood mixed earthblack scarf from the head of the deceased andthe sample ofsimple earth. The inquest panchanama Exhibit 37 was drawn on16.01.2013 and there is no reference to the scarf on the head of thedeceased. One seizure panchanama Exhibit 56 of the seizure of theclothes on the person of deceased shown to have been drawn on18.01.2013 wherein for the first time a reference has come aboutthe sari and the blouse. PW Sanjay Ware has deposed that he hasidentified the dead body of Vaishali on the basis of the sari on herbody bangles and slippers. So far as the bangles and slippers areconcerned those are neither shown in the spot panchanama northe inquest panchanama nor seized by the Investigating Officer atany point of time. Even though PW Sanjay Ware allegedlyidentified the dead body on the basis of the sari however said sariwas not shown as an article seized during the spot panchanamaExhibit 31. The said sari shown to have been seized only on18.01.2013 i.e. two days after the said dead body was found. Weare of the considered opinion that there is no proper identificationof the dead body in this case. Even the Investigating Officer hasfailed to opt for a DNA test to identify the dead body. on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 16 13.It is needless to say that motive plays a prominent role whenthe prosecution case rests upon circumstantial evidence. In theinstant case the prosecution has shown the motive of accused no.1Sachin that some two months prior to the incident deceasedVaishali had beaten him with slippers on account of his mis behaviour and therefore accused no.1 Sachin along with hisbrother accused no.2 Babasaheb had committed murder ofdeceased Vaishali. We find the motive very weak in this case.According to PW Sanjay two months prior to the incident accusedno.1 Sachin had made an attempt to outrage the modesty ofdeceased Vaishali and thus deceased Vaishali had beaten him andtold him not to come to their house. In the backdrop of this it issurprising that PW Sanjay Ware though searched his wifeextensively from 08.01.2013 to 11.01.2013 however he has notexpressed any suspicion against accused no.1 Sachin in the missingreport. It is also equally surprising that till 11.01.2013 PW SanjayWare has not filed the missing report Exhibit 28 in the concernedpolice station.14.The prosecution has come with a story of last seen together.PW 5 Mithu Gite has seen deceased Vaishali on the motorcycle ofaccused Sachin on 08.01.2013 at about 11.00 a.m. to 11.30 a.m. inthe weekly market at Karanji. We will discuss this circumstance in on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 17 detail. However so far as the motive as alleged by the prosecutionis concerned the evidence of PW 5 Mithu Gite appears to becontrary to it. If at all deceased Vaishali was unhappy and reactedin harsh manner due to mis behaviour of accused no.1 Sachin twomonths prior to the incident and she further directed accused no.1Sachin as not to come to their house it was very unlikely on herpart to sit on the motorcycle of accused no.1 Sachin as a pillionrider at the crowed place of weekly market at village Karanji. Weare of the considered opinion that the prosecution could notestablish the motive of accused no.1 Sachin to commit murder ofVaishali.15.So far as the circumstance of last seen together is concerned the prosecution has examined witness PW 5 Mithu Tatyaba Gite.On 08.01.2013 in the morning deceased Vaishali left the house forpurchasing the essentials from the weekly market at Karanji on theeve of Sankrant festival. PW Mithu Gite has seen deceased Vaishalion the motorcycle of accused Sachin on the same day at about11.00 a.m. to 11.30 a.m. in the weekly market at village Karanji.16.In the case of Mohibur Rahman and another v. State ofAssam reported in6 SCC 715 in para 10 the SupremeCourt has made the following observations: on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 18 “10.The circumstance of last seen together does not byitself and necessarily lead to the inference that it was theaccused who committed the crime. There must besomething more establishing connectivity between theaccused and the crime. There may be cases where onaccount of close proximity of place and time between theevent of the accused having been last seen with thedeceased and the factum of death a rational mind may bepersuaded to reach an irresistible conclusion that eitherthe accused should explain how and in what circumstancesthe victim suffered the death or should own the liability forthe homicide. In the present case there is no suchproximity of time and place. As already noted the deadbody has been recovered about 14 days after the date onwhich the deceased was last seen in the company of theaccused. The distance between the two places is about 30 40 kms. The event of the two accused persons havingdeparted with the deceased and thus last seen togetherdoes not bear such closeproximity with the death of the victim by reference to timeor place. According to Dr Ratan Ch. Das the deathoccurred 5 to 10 days before 9 2 1991. The medicalevidence does not establish and there is no other evidenceavailable to hold that the deceased had died on 24 1 1991or soon thereafter. So far as the accused Mohibur Rahmanis concerned this is the singular piece of circumstantialevidence available against him. We have already discussedthe evidence as to recovery and held that he cannot beconnected with any recovery. Merely because he was lastseen with the deceased a few unascertainable number ofdays before his death he cannot be held liable for theoffence of having caused the death of the deceased. So far on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 19 as the offence under Section 201 IPC is concerned there isno evidence worth the name available against him. He isentitled to an acquittal.”17.The Supreme Court has observed that the circumstance oflast seen together does not by itself and necessarily lead to theinference that it was the accused who committed the crime. Theremust be something more establishing the connectivity between theaccused and the crime. On account of the close proximity of placeand time between the event of accused having been last seen withthe deceased and the factum an irresistible conclusion can bedrawn that either the accused should explain the circumstance orhe should own the liability for the homicide.18.In the instant case there is no such proximity of time andplace. The dead body of Vaishali was recovered on 16.01.2013 fromVrudhheshwar valley which is at a distance of 40 kms fromPathardi. Village Lohasar where PW Sajnay Ware and deceasedVaishali were residing is at a distance of 3 kms from the weeklymarket of village Karanji. Deceased Vaishali was found missing on08.01.2013 and the dead body was recovered eight days after thedate on which deceased was last seen in the company of accusedno.1 Sachin. The medical evidence does not positively establishthat deceased Vaishali died on 08.01.2013 or soon thereafter. on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 20 Admittedly there is no other evidence indicating the exact time ofdeath of Vaishali.19.Furthermore PW 5 Mithu Gite has admitted in his cross examination that he had not informed anyone the fact of last seentogether till his statement was recorded by the police. He hasfurther admitted in his cross examination that he was aware thatpeople were searching Vaishali and Police had also come to hisvillage to search Vaishali. He has also admitted in his cross examination that he has gone twice to the police. First time he hadgone to the police when Vaishali had died and at that time he hadnot told about the said incident of seeing Vaishali in the weeklymarket of Karanji to the police. PW Sanjay Ware has also admittedin his cross examination that PW 5 Mithu Gite and one SarangdharGite met him on 09.01.2013 at Lohasar Taluka Pathardi. PWSanjay Ware has also admitted in his cross examination that on08.01.2013 his wife deceased Vaishali first went to her maternalhouse before going to the weekly market. PW Sanjay Ware hasvoluntarily stated in his cross examination that deceased Vaishalileft her maternal home for going to the weekly market at about12.30 p.m. In view of this admission the theory of last seentogether put forth by the prosecution as a material circumstance appears to be unbelievable. We are of the opinion that witness PW on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 21 Mithu Gite is a got up witness. His evidence is unreliable notinspiring confidence.20.We have carefully gone through the call detail record. We aresurprised to note that as per the call detail record from 08.01.2013to 15.01.2013 there are calls from a particular cell phone to thecell phone of deceased Vaishali or the informant. Accused no.1Sachin along with his brother if committed murder of deceasedVaishali then it is very unlikely on his part to make phone calls onthe cell phone of deceased Vaishali by using the sim cards given tohim by deceased Vaishali during her life time when accused no.1was working in their field. Otherwise also we do not find anyrelevancy in the call detail record to establish the guilt of theaccused. Even if the frequency of calls between the sim card cellphone in possession of accused no.1 Sachin and the cell phone ofdeceased Vaishali is considered it appears that there were intimaterelations between them. However the same is contrary to themotive as put forth by the prosecution to prove the involvement ofaccused no.1 Sachin in commission of murder of Vaishali. Similarly even though there is recovery of the sim cards at the instance ofaccused no. 1 Sachin however admittedly those sim cards weregiven to him by PW Sanjay Ware and his wife deceased Vaishaliwhen he was working in their field. There is no further evidence to on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 22 indicate that despite their insistence accused no.1 Sachin did notreturn those sim cards to them. 21.So far as the involvement of accused no.2 Babasaheb inconnection with the present crime is concerned he has beenconvicted for the offence punishable under Section 404 of IPCalong with accused no.1 Sachin only due to recovery ofmangalsutra and ear rings at his instance. The prosecution hasexamined PW 10 Raju Sontakke to prove the memorandum ofrecovery panchanama Exhibit 52 and the recovery panchanamaExhibit 52A for the recovery of mangalsutra and the ear rings. PWRaju Saotakke has not supported the prosecution. If for the sake ofdiscussion we accept that the said recovery of mangalsutra and ear rings was at the instance of accused no.2 Babasaheb as deposed byPW 14 Investigating Officer Ashok Amle however we do not findany further connecting evidence so far as the said recovery isconcerned. PW Sanjay Ware has deposed that he has identified thedead body of Vaishali on the basis of the sari on her body banglesand slippers. We have already dealt with this part of the evidence.Even PW 14 Investigating Officer Ashok Amle has also admittedthat he has not seen bangles and slippers. Even the sari was notseized at the time of drawing of the spot panchanama or theinquest panchanama. It is pertinent that the sari was seized by on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 23 drawing a separate panchanama on 18.01.2013 i.e. two days afterthe dead body was found. Even there is no reference in thecomplaint Exhibit 29 that the mangalsutra and the ear rings on thedead body are missing. Further we do not find any evidence toindicate that the said mangalsutra and ear rings were shown to PWSanjay Ware and he has identified the said articles as belonging tohis wife. Even those articles were not shown to PW Sanjay Ware inthe court for identification purpose. On the other hand PW SanjayWare has initially stated in his examination in chief itself that hehas identified the dead body of Vaishali on the basis of her ear rings mangalsutra scarf and slippers. He has corrected himself.However we cannot ignore that initially he has given the fataladmissions in respect of the mangalsutra and ear rings. Further thesaid memorandum of recovery as per Exhibits 52 and 52A is muchlater i.e. on 18.01.2013.22.We have also carefully gone through the contents of the C.A.report Exhibit 47. It appears that the cloths on the person of theaccused are marked as articles 9 10 11 and 12. As per the result ofanalysis no blood is detected on Exhibits 9 10 11 and 12. Eventhough there is recovery of motorcycle at the instance of accusedno.1 Sachin however we find no connecting evidence by way ofrecovery of the motorcycle. The Investing Officer PW Ashok Amle on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 24 has deposed that during investigation it was revealed that accusedno.1 smashed the head of deceased by means of stone. Accusedno.1 Sachin had demanded sexual relations from Vaishali and soVaishali had assaulted accused Sachin and on that count murderhad taken place out of revenge with the help of accused no.2.However we hardly find any evidence to draw a conclusion to thateffect as deposed by the Investigating Officer. On the contrary theevidence indicates otherwise. We are of the considered opinion thatthe prosecution has failed to prove the case beyond reasonabledoubt against both the accused persons. Thus both the appellants accused are entitled for the benefit of doubt. We accordinglyproceed to pass the following order:ORDERI.Criminal Appeal No. 2414 is herebyallowed.II.The impugned judgment and order dated24.02.2014 passed by the Additional SessionsJudge Ahmednagar in Sessions Case No. 132 of2013 is hereby quashed and set aside.III.Accused No.1 Sachin Jalinder Chavan and accusedno.2 Babasaheb Jalinder Chavan are herebyacquitted of all the charges. on 09 07 2021 on 22 03 CriAppeal 245 2014.odt 25 IV.The fine amount if deposited shall be refunded tothem.V. The appellant accused no.1 Sachin JalinderChavan and the appellant accused no.2 Babasaheb Jalinder Chavan shall execute P.B. ofRs.15 000 each with one surety of the likeamount each to appear before the higher court asand when the notice is issued in respect of anyappeal or petition filed against the judgment ofthis Court. Such bail bonds shall remain in forcefor a period of six months from the date of itsexecution.VI.Criminal Appeal No. 2414 is accordinglydisposed off. (V. K. JADHAV J.) vre 