Criminal Appeal No.9 of 2012

9th December, 2014

Petitioner Counsel: Mr. VIJAY SHARMA
Respondent Counsel: Mrs. S.G. CHINCHOLKAR

Cases Cited:
Ashish Batham Vs. State of M.P., AIR 2002 SC 3206 [Para 5]
Raj Kumar Singh alias Raju alias Batya Vs. State of Rajasthan, 2013 ALL MR (Cri) 2240 (S.C.)=AIR 2013 SC 3150 [Para 5]
Ranbir Vs. State of Punjab, 1973 CJ (SC) 293 [Para 6]
Amitsingh Bhikamsing Thakur Vs. State of Maharashtra, 2007 ALL MR (Cri) 1393 (S.C.)=AIR 2007 SC 676 [Para 26]
Salim Akhtar @ Mota Vs. State of U.P., 2003 ALL MR (Cri) 1167 (S.C.)=AIR 2003 SC 4076 [Para 26]
Aslam Parwez etc. Vs. Government of NCT of Delhi, AIR 2003 SC 3547 [Para 26]
Hanumant Govind Nargundkar & Anr. Vs. State of Madhya Pradesh, AIR 1952 SC 343 [Para 27]
Mohd. Mannan @ Abdulo Mannan Vs. State of Bihar, 2011 ALL SCR 2857=(2011) 5 SCC 317 [Para 27]
Ajitsingh Harnamsingh Gujral Vs. State of Maharashtra, 2011 ALL SCR 2475=(2011) 14 SCC 401 [Para 27]
Rajendra Wasnik Vs. State of Maharashtra, 2012 ALL MR (Cri) 1375 (S.C.)=(2012) 4 SCC 37 [Para 27]
State of Punjab Vs. Bhajan Singh and Ors., AIR 1975 SC 258 [Para 35]
Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773 [Para 36]
Shyamal Ghosh Vs. State of West Bengal, 2012 ALL SCR 1921=(2012) 7 SCC 646 [Para 27]
Harivadan Babubhai Patel Vs. State of Gujrat, 2013 ALL SCR 2524=(2013) 7 SCC 45 [Para 27,29]
Dhan Raj alias Dhand Vs. State of Haryana, 2014 ALL MR (Cri) 2602 (S.C.)=(2014) 6 SCC 745 [Para 27]
State of U.P. Vs. Satish, (2005) 3 SCC 114 [Para 27]
Ramreddy Rajesh Khanna Reddy Vs. State of A.P., 2006 ALL MR (Cri) 1533 (S.C.)=(2006) 10 SCC 172 [Para 27]
Jaswant Gir Vs. State of Punjab, (2005) 12 SCC 438 [Para 27]
Jagroop Singh Vs. State of Punjab, 2012 ALL MR (Cri) 2727 (S.C.)=(2012) 11 SCC 768 [Para 27]
Shankarala Gyarasilal Dixit Vs. State of Maharashtra, AIR 1981 SC 765 (1) [Para 28]
Rushipal Vs. State of Uttarakhand, 2013 ALL SCR 930=2013(12) SCC 551 [Para 32]
Kanhaiya Lal Vs. State of Rajasthan, 2014 ALL SCR 1542=(2014) 4 SCC 715 [Para 33]
Toran Singh Vs. State of M.P., 2002 ALL MR (Cri) 2621 (S.C.)=AIR 2002 SC 2807 [Para 35]
Sharad Birdhichand Sarda Vs. State of Maharashtra, 2009 ALL SCR (O.C.C.) 281=(1984) 4 SCC 166 [Para 37]
Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637(1) [Para 38]

JUDGMENT

S. S. SHINDE, J. :- This Appeal is filed by the Appellant - original accused, challenging the Judgment and Order dated 08.11.2011, passed by the learned Sessions Judge, Parbhani in Sessions Trial No.52/2011, thereby convicting the appellant for the offences punishable under Section 302 of the I.P. Code and sentenced to suffer Life Imprisonment and to pay fine of Rs.10,000/- [Rs.Ten Thousand only], in default of payment of fine, he is directed to undergo further S.I. For the period of six (6) months and also for the offence punishable under Section 201 of I.P. Code and sentenced to suffer rigorous imprisonment for three (3) Years and to pay fine of Rs.5,000/- [Rs. Five Thousand only], in default of payment of fine, he is directed to undergo further simple imprisonment for the period of three (3) months.

2. Relevant facts as are necessary for the adjudication of the instant Appeal can be summarized as follows:

The deceased Raiwata d/o.Uttam Shelke, R/o. Shelke wadi, Taluka Purna, District Parbhani, was a student of 12th Standard. She was attending tuition classes at Purna and for that purpose was residing with her paternal aunt [father's sister] Kasabai Govind Vaidya, R/o. Adgaon [Lasina], Taluka Purna. On 23.11.2010, at about 06.30 a.m. Raiwata had started from Adgaon Lasina for Purna to attend the tuition classes, and was supposed to return home in the afternoon, however, she did not return back. Shri Kishan Munjaji Shelke, the grandfather of Raiwata and others took search of Raiwata, and as she was not found, a Missing Report was lodged on 25.11.2010 at the Police Station Purna, bearing No.28/2010 at about 16.30 hours. On 27.11.2010, in the afternoon, information was received that, a dead body of an unknown lady was found in the well situated in the field of Gyandeo Gangaram Vaidya in Adgaon Lasina Shivar. The field owner also informed the Police about the same. On the basis of this information, A.D. No.44/2010 was registered at the Police Station Purna under Section 174 of the Code of Criminal Procedure. The enquiry into accidental death case was entrusted to Head Constable Prakash Jangale. During the A.D. Enquiry, the grandfather of the deceased Kishan Shelke identified the dead body found in the well of Gyandeo Vaidya, as that of his grand daughter Raiwata. The body was taken out of the well; it was in a decomposed state. The salwar and nikar were removed from the person of the deceased and as such an inference was drawn by the Police that, the deceased must have been subjected to forcible sexual intercourse and in order to cause disappearance of evidence of rape, she must have been thrown in the well for causing her death by drowning.

According to the prosecution when the deceased Raiwata was passing from the road, near the stream-let abutting the field of Gyandeo Vaidya and Shivaji Bhore, she was followed by the accused Dnyaneshwar @ Bandu @ Lakhya. The accused accosted her and dragged her in the standing sugarcane crop. She raised shouts. Ganesh Solva [PW-7] noticed something untoward happening. Ganesh Solave is an agricultural labour in the field of Dhondiba Bhore and resident of Barbadi. He did not disclose the incident to anybody. It is alleged that, the accused was also noticed at the spot of the relevant time of occurrence by Dhondiba Bhore and Maroti Solav in a frightened state.

Police Head Constable Prakash Jangale lodged the report at Police Station Purna on the basis of enquiry conducted by him in the Accidental Death Case No.44/2010 on 29.12.2010 and on the basis of which Crime No.200/2010 was registered under Section 302, 376, 201 of I.P. Code at Police Station Purna.

In the course of investigation, the Police arrested the accused on 29.12.2010. The inquest and spot panchanama were already recorded in the course of enquiry of the Accidental Death Case. The dead body was sent for post-mortem examination. The post-mortem examination was conducted on 28.11.2010 between 07.30 hours to 09.00 hours. The statements of other witnesses were recorded. After completion of the necessary investigation, charge sheet was submitted on 27.03.2011 in the Court of Judicial Magistrate First Class, Purna. The matter was, thereafter, committed to the Court of Sessions at Parbhani.

3. The appellant was put on trial before the Sessions Judge, Parbhani. The charge was framed for the offence under Section 302, 376 and 201 of I.P. Code. In support of its case, the prosecution has examined 10 witnesses. After recording the evidence and hearing the prosecution and defence, the Trial Court convicted and sentenced the appellant as aforesaid in para No.1, however, acquitting him of the charge under Section 376 of the I.P. Code. Hence this Appeal.

4.The learned counsel appearing for the appellant submits that, the Autopsy Surgeon having performed autopsy on 28.11.2010 has opined that, the death of the deceased must have been caused before 3 to 5 days from the date of post-mortem examination. It, therefore, indicates that, the death of the deceased has occurred only after 24. 11.2010. The entire prosecution evidence suggests that, the incident occurred on 23.11.2010. In these circumstances, it would be hazardous to convict the appellant on a capital charge. It is further submitted that, the sole basis of the prosecution case is the evidence of PW-7 Ganesh Solav, who has been examined as an eye witness. The incredible conduct of this witness renders him extremely unsafe for any reliance. This witness claims to have witnessed the incident dated 23.11.2010 of the deceased being dragged by the accused and that she was raising shouts. Although he claims to have revealed his master Dhondiram Bhore about the incident, and is also aware of the dead body of the girl, found in the well of Gyandeo Vaidya has chosen not to inform the developments to the police or the Police Patil / Sarpanch etc. until his statement was recorded by the Police on 30.12.2010 i.e. after more than a month after the incident. It is, in these circumstances, it would be highly unsafe to rely on the evidence of PW-7 to base a conviction. It further deserves appreciation that, the distance from which PW-7 has claimed to have witness the incident, it is impossible that, he could have correctly identified either the accused or the deceased. It is further submitted that, on a careful perusal of the evidence of PW-7, it is unlikely to believe that, he could correctly identify the deceased as the same girl accosted by the accused. It deserve appreciation that, the observations of the Judge that from the evidence of PW-7 the identity of the accused is sufficiently established then, it is for the accused to prove beyond reasonable doubt that, he dragged a girl towards the sugarcane crop was somebody else then the deceased is patiently erroneous. It is the prosecution which has to stand, on its own legs. In any case, benefit of doubt can not be extended to the prosecution. It is further submitted that, it ought to have been appreciated that, from the evidence of the Autopsy Surgeon there was no indication of any sexual intercourse and as such the appellant has been acquitted of the charge under Section 376 of the I.P. Code. In the circumstances, there is absolutely no rhyme or reason for the accused / appellant to commit either any offence under Section 302 and 201 of I.P. Code. It is further submitted that, the evidence adduced by the prosecution is highly inadequate and insufficient to convict the accused appellant.

5. The learned counsel further submits that, if the prosecution has failed to establish that, the death is homicidal, conviction of the appellant for the offence punishable under Section 302 of I.P. Code would not arise. It is submitted that, PW-6 Kasabai first time has disclosed before the Court certain new facts, which were not in the police statement. The learned counsel in support of his contention that, suspicion howsoever strong, cannot substitute for legal proof, pressed into service exposition of the Supreme Court in the case of Ashish Batham Vs. State of M.P. reported in AIR 2002 SC 3206 and in the case of Raj Kumar Singh alias Raju alias Batya Vs. State of Rajasthan reported in AIR 2013 SC 3150 : [2013 ALL MR (Cri) 2240 (S.C.)].

It is submitted that, no reasons have been forthcoming from the prosecution for delay in filing First Information Report and also for recording the statements of the prosecution witnesses by the police. Therefore, the learned counsel appearing for the appellant submits that, the appellant deserves to be acquitted.

6. On the other hand, the learned Additional Public Prosecutor appearing for the respondent - State submits that, accused was last seen in the company of the deceased as stated by PW-7 in his evidence. It is further submitted that, there is recovery of burnt piece of salwar, note book and writing pad belonging to the deceased and chappals, which were concealed by the accused in the field of Gajanan Gangaram Vaidya. Therefore, the learned Additional Public Prosecutor submits that, the prosecution has established guilt of the accused beyond reasonable doubt, and therefore, appeal may be dismissed. The learned Additional Public Prosecutor has placed reliance in the case of Ranbir Vs. State of Punjab reported in 1973 CJ (SC) 293.

7. We have given careful consideration to the rival submissions and also perused original record and proceedings, relevant provisions, and the Judgments cited by the learned counsel appearing for the parties.

In this Appeal, following questions would fall for our consideration:

(i) Whether delay in lodging FIR and recording of the statement of the witnesses by the Police is fatal to the prosecution case?

(ii) Whether death of Raiwata [herein after would be referred as 'victim'] was homicidal?

(iii) Since the case rest upon the circumstantial evidence, whether the prosecution has established chain of circumstances which would lead to only hypothesis of the guilt of the accused?

(iv) Whether on the basis of two circumstances i.e. last seen together and recovery at the instance of the accused are sufficient to hold that the accused alone and alone is responsible for the death of the victim?

(v) Whether the circumstances on which the prosecution relies are established by satisfactory evidence, often described as 'clear and cogent' and secondly, whether the circumstances are of such a nature as to exclude every other hypothesis save the one that the appellant is guilty of the offences of which he is charged?

8. One Prakash Nagorao Jangle was examined as PW-5 by the prosecution. In his evidence, he stated that, on 25.11.2010, he was attached to the Police Station Purna. P.S.O. on duty assigned investigation of missing report of victim to the PW-5. He carried investigation of the missing report. On 27.11.2010, one Ginyandeo of Adgaon Lasina lodged A.D.report in Police Station Purna. A.D. No.44/2010 was then registered by P.S.O. Further enquiry was referred to PW-5. On 27.11.2010, he visited the spot and saw dead body of female was floating on the well water. The dead body was thereafter taken away from the well. Then, he called PW-1, who identified the dead body as that of his grand-daughter. The inquest on the dead body thereafter was done in presence of panchas. Only the shirt was on the dead body. Dead body was referred to Rural Hospital Purna for P.M. Examination. On the next day the dead body was delivered in the possession of the relatives of deceased. Thereafter, he recorded the statements of the relatives of deceased wherein they suspected something unnatural had happened with deceased, then deceased was killed, and thereafter her dead body was thrown in the well.

Upon careful perusal of the evidence of this witness, he has not stated that, the relatives of victim whose statements are recorded, have even raised suspicion about involvement of the appellant in the commission of the offence.

PW-5 has further stated that, after looking into the condition of dead body, he felt that, the deceased was raped, and thereafter murdered. Then, he proceeded to conduct further investigation. According to this witness, he appointed two secret messengers to collect the information, who then tried to gather the information. It took them a month for said work. Thereafter, the messengers reported to him that, village people Shri Limbaji Solav, Maroti Solav and Vithal Bhore were talking that, they had knowledge about the incident, they also disclosed him that, one Ganesh Solav had seen the deceased going to tuition classes and one unknown person apprehended her from behind and took her in cane field. This witness recorded the statements of those persons on 27.12.2010 and also recorded the statement of Ganesh and Dhondiba on 28.12.2010.

9. It appears that, though PW-5 relied upon two secret messengers, the prosecution has not examined those two secret messengers. It has also brought in the evidence that, those two secret messengers also disclosed PW-5 that, one Ganesh Solav had seen the deceased going to tuition classes and one unknown person apprehended her from behind and took her in cane field. In fact, it has come in the evidence of PW-7 and PW-8 that, they knew accused. It is also brought on record by the prosecution that, field of the accused is on the western side of the field of PW-8. Therefore, there was no question of telling by Ganesh Solav to the two secret messengers that, one unknown person apprehended the victim from behind and took her in cane field.

10. PW-5 further stated in his evidence that, Ganesh Solav stated before him that, he saw incident by his own eyes. He also told him that, he saw the accused Bandu @ Lakhya @ Dnyaneshwar had caught hold the deceased and took her to the cane filed, and thereafter, he had recorded the statement of field owner Shri Dhondiba wherein he has stated that, on the day of incident, he saw the accused Bandya, and therefore, PW-5 felt that, the accused must have committed firstly rape and subsequently murder of deceased, and thereafter, First Information Report was lodged on 29.12.2010.

11. Therefore, it is admitted position that, though the alleged incident had taken place on 23.11.2010, First Information Report came to be lodged belatedly on 29.10.2010. An impression gathered by the PW-5 was on the basis of information collected by the two secret messengers, and therefore, prosecution ought to have examined those two secret messengers so as to prove the case of the prosecution. Though, the PW-5 claims in his evidence that, PW-7 Ganesh Solav stated before him that, he saw incident by his own eyes, in fact, upon careful perusal of the evidence of PW-7, he has not stated in his evidence that, he saw actual incident of rape or killing of victim by the accused appellant.

12. It has also come in cross examination of PW-5 that, after the investigation of A.D. Report was given to him, he had visited Adgaon Lasina on number of occasions till he lodged report on 29.12.2010. Whenever he felt it necessary, he went near the well and visited cane field. He admits in his evidence that, he did not make an enquiry to the adjoining land holders of the well where the dead body of victim was found, because he felt that, the deceased is from other village, and those people if enquired, could not give necessary information to him, and therefore, he appointed two messengers of village Adgaon Lasina, who were not previously acquainted with him.

13. It clearly appears that, PW-5 went near the well and visited cane field and naturally adjoining fields also. Therefore, recovery of certain articles at the instance of accused after one month from the open field and also from the sugar cane field looses its importance. He has admitted in his cross examination that, inquest panchanama Exh.21 does not indicate any external injuries on the private part of the dead body. Upon careful perusal of the evidence of this witness it clearly emerges that, he himself was not keen in the investigation and entrusted the said job to the two secret messengers, who are not examined by the prosecution. This witness has recorded statements of PW-7 and PW-8 belatedly on 28.12.2010. No reasons are placed on record, why these two witnesses kept mum for one month, and thereafter they disclosed the alleged act of the accused, dragging victim and taking her to sugar cane field. Therefore, in the light of discussion herein above, it will have to be held that, there was considerable delay in lodging the First Information Report and recording the statements of the witnesses, which affected the credibility of prosecution story.

14. PW-5 in his evidence stated that, the relatives of the deceased victim suspected something unnatural had happened, but, they did not express any suspicion about involvement of the accused. Upon careful reading of evidence of PW-5, it appears that, he visited village Adgaon Lasina on number of occasions. He has also deposed that, he went near the well and visited sugar cane filed. He has admitted that, he has not caused enquiry from the adjoining field owners. He has further admitted that, there was no enquiry about mobile cell number which was disclosed in the missing report. Parents and grand father of the victim did not suspect about anybody. He further stated in his cross examination that, Pandan (village mud road) is situated on Adgaon to Purna public road. People of village Adgaon Lasina used to go both respectively by tar road and also by kacha road which runs from Pandan road. The inquest panchanama Exh.21 does not indicate any external injuries on the private part of the dead body. Therefore, upon careful perusal of his evidence, it is abundantly clear that, Pandan is adjacent to the Adgaon to Purna public road and is not an isolated place.

15. One Dr. Basveshwar Haugirao Kanje was examined as PW-3. In his evidence, he stated that, on 28.11.2010, he was attached to Rural Hospital Purna as M.O. The dead body of victim was sent to Rural Hospital Purna on 27.11.2010 at 6.45 p.m. He himself and Dr. Shaikh conducted the P.M. in between 7.30 a.m. and 9.00 a.m. They noticed beginning decomposition of dead body. The shirt and dark coloured scarf was on the dead body. The pant however, was not there. On internal examination, he found that, both the lungs were congested and started softening. Stomach has also started softening containing about 100 ml. water. No food particles were found in the stomach. Liver and spleen both were congested and started softening. Viscera of the dead body and vaginal swabs were preserved. Since the dead body started decomposing, exact opinion about cause of death could not be given immediately as such the opinion was reserved.

16. He further stated that, during recording of his evidence, he was shown the C.A. report pertaining to the viscera and vaginal swabs. He further stated that, report regarding viscera does not disclose any poison. After perusal of the C.A. report, he stated that, probable cause of the death of the deceased could be because of drowning. In his cross examination, he stated that, the death could be around 3 to 5 days prior to P.M. Examination. Upon reading of his evidence, it clearly emerges that, the prosecution has not firmly established that, the death was homicidal.

17. Star witness of prosecution i.e. PW-7 Ganesh Solav claimed that, he saw one girl passing through a 'Pandan' [bullock cart road] towards Purna. He also saw the accused Dnyaneshwar following said girl from few distance who was putting on his person a shawl. Thereafter, he heard the cries raised by that girl, therefore, he pipped towards the road side and saw that, accused Dnyaneshwar put shawl on her person and dragged her towards sugarcane field. He further stated that, he does not know what had happened thereafter. He continued to do his work of watering the field. Within a few minutes, one Vithal Gangadhar Bhore came to him and asked him, has he heard cries of lady? This witness replied that, Yes. In the meantime, his owner came along with a tea and offered it to him. He told owner i.e. PW-8 that, there was a noise who then told him that, let it be. He stated that, Police recorded his statement on 28.12.2010 and subsequently on 30.12.2010, and lastly before Magistrate at Purna on 18.03.2011. Upon perusal of his evidence in examination in chief, he nowhere stated that, he actually witnessed the commission of the offence of rape or murder by the accused. He has also not stated that, he knew victim, and the accused dragged the victim. In short, this witness nowhere stated that, said girl was Raiwata. Even if his evidence if he accepted as it is, at the most, it can be said that, he saw one girl passing through a Pandan [bullock cart road] towards Purna. He saw accused Dnyaneshwar following that girl at a few distance, then accused dragged said girl, and thereafter, he heard the cries raised by that girl and then pipped towards the road side and saw that, accused Dnyaneshwar covered shawl on her person and dragged her towards sugar cane field. The prosecution has not brought cogent and convincing evidence on record to prove that, said girl was Raiwata. Secondly, the prosecution has not explained delay in recording the statement of this witness. As already observed, this witness has stated that, he saw accused Dnyaneshwar dragging one girl towards sugar cane field, and thereafter, he did not know what happened. Though, this witness has named one Vithal Gangadhar Bhore, who came to him within few minutes after witnessing the afore-mentioned incident, the prosecution has not examined the said Vithal Gangadhar Bhore though he was available for examination.

18. Upon careful perusal of the evidence of PW-7, he stated that, incident took place prior to 7/8 months in between 6.00 a.m. to 6.30 a.m. At that time, he was watering the field of his owner. A bullock cart road runs adjacent to his owner's field. It is known by local name as 'Pandan'. The said road goes from Adgaon Lasina to Purna. If missing report filed by Kishan Munjaji Shelke, who is grand-father of the deceased, to the Police Inspector, Police Station, Purna, is perused, in said report he stated that, they are residing at village Adgaon Lasina with grand daughter Revta i.e. deceased, and on 23.11.2010, she left house for attending classes to Purna at 7.00 a.m. Therefore, if version of PW-7 is taken as it is, he saw incident of dragging the girl by the accused in the morning at 6.00 a.m. to 6.30 a.m., then as per the missing report, deceased left the house on 23.11.2010 at 7.00 a.m. In the First Information Report, time of leaving house by the deceased is stated 6.30 a.m. It would have been natural human conduct that, PW-7 should have enquired with the accused why he was dragging the girl. However, this witness admits in his cross examination that, he did not ask the accused why he was dragging the girl. It creates serious doubt about truthfulness of the version of PW-7. In the first place, the alleged incident of dragging, has not been stated by PW-7 on particular date. Secondly, as per the evidence of Medical Officer, death occurred within 3/5 days back from the date of performing post mortem. As per the evidence of owner of the well namely Ginyandeo Gangaram Vaidya i.e. PW-2, on 27.11.2010, he had been to his field at about 2.00 p.m., something was smelling towards the well side therefore he went there. He saw the female dead body floating on the well water. Then, he went to Purna Police Station and lodged the report. PW-7 during his cross examination stated that, towards west of the Pandan there is a field of Shivaji Sakharam. Towards his west a field of Uttam Sakharam, towards west there is a field of accused Dnyaneshwar and his brother Digambar and towards west of that field, there is field of his owner. Towards east of the Pandan there is a land of Gyandeo Vidya. The village Gaothan of Adgaon is at a distance of half kilometer away from Pandan. Therefore, it appears that, spot where PW-7 saw accused dragging girl in Pandan is surrounded by fields of various persons of said village. According to PW-7, distance between village Gaothan of Adgaon Lasina is half kilometers away from Pandan. If the deceased started from her house in between 6.30 a.m. to 7.00 a.m. as claimed by the prosecution, to travel more than half kilometer distance it will take some time. Therefore, upon perusal of evidence of PW-7 that, he saw accused dragging girl in the morning at 6.00 a.m. to 6.30 a.m., if accepted, there is room for doubt that, whether girl dragged by the accused was Raiwata or some other girl. It is difficult to fathom that, PW-7 even after hearing cries raised by girl, he did not ask the accused, or went at the spot so as to find out, why girl was being dragged by the accused. It has come in his evidence that, pandan is adjacent to the field where he was working. Apart from that, another person i.e. Vithal Gangadhar Bhore, has came to him, therefore, in all human probabilities, they ought to have enquired about such incident of dragging or taking girl by the accused to sugarcane field, since said incident had happened, according to PW-7 in between 6.00 a.m. to 6.30 a.m.

19. According to this witness i.e. PW-7, after he witnessed incident, PW-8 field owner came along with a tea. PW-7 told PW-8 that, there was a noise, who then told him that, let it be. Therefore, what was stated by PW-7 to PW-8 i.e. Owner, is that, there was a noise, except that, nothing was told to the owner, is also difficult to believe, when PW-7 saw the accused dragging girl and girl was crying, such incident which had happened during morning hours, was not narrated in detailed to the owner. PW-7 has stated that, the field of the accused Dnyaneshwar and his brother Digambar is towards west and adjacent to it there is a field of his owner. Suggestion was given to this witness that, other land owners were also present during that period. It has also come on record that, PW-7 stated in his examination in cross that, it is true that field of Munjaji situated adjacent to the field of Gyandev. Team of labour for cutting the sugar cane crop arrived to the field of Munjaji, and they had a halt at a distance of about 1500 feet away from that field. That field belongs to Hivrabai Vaidya.

Therefore, as already observed, well is situated in the field of Ginyandeo, as stated by PW-7 that, a team of labourer for cutting the sugar cane crop has arrived to the field of Munjaji, whose land is situated adjacent to the field of Ginyandeo. Therefore, it is difficult to accept the prosecution case that, if incident would have been taken place at the relevant time, same was not noticed by any other person including labourers, who have come there for cutting the sugar cane.

PW-7 further deposed in his cross examination that, one well is situated in the land of Gyandeo and a streamlet flows adjacent to it. Village people used to go to the streamlet to answer the nature's call early in the morning. Therefore, it is not the case that, place where alleged incident of dragging girl had happened is isolated place and people have no opportunity to notice the said incident early in the morning. PW-7 has stated in his cross examination that, accused Dnyaneshwar used to go to his field through the Pandan. Therefore, it appears that, accused was acquainted with PW-7, and therefore, in all probabilities, PW-7 ought to have enquired from the accused Dnyaneshwar, why he was dragging the girl. It is also admitted by this witness in his cross examination that, adjacent owner Shri Shivaji and Uttam had sown wheat crop in their field after sometime. The area of the land belonging to the accused and his brother is around 2 acres approximately. At the relevant time, it was lying vacant [nothing was sown in that field]. Subsequently, they had sown crop of wheat in the said land 5 to 6 days after the incident. PW-7 has admitted in his cross examination that, he did not try to restrain the accused from dragging the girl. He did not disclose this fact to the adjacent land owner Shri Vithal Bhore. He went back to village Adgaon by 9.50 a.m. He did not report the incident either to the Sarpanch or to the village Police Patil. 2-3 days after the incident, he came to know that, a dead body was floating in the well of Gyandeo. He has witnessed incident of dragging the girl 2/3 days prior to the day on which dead body was recovered from the well. As per the prosecution case, dead body was seen by PW-2 on 27.11.2010 at about 2.00 p.m. Two days prior, it means PW-7 saw the incident of dragging girl by accused Dnyaneshwar on 24.11.2010 or 25.11.2010.

20. It has also come in the cross examination of PW-7 that, even after coming to know that, dead body of Revta was floating in the well of Gyandeo, he did not go to see the dead body. The prosecution has not brought on record evidence suggesting that, PW-7 identified the dead body. PW-7 has also admitted in his cross examination that, he did not tell Govind Vaidya the husband of PW-6 that, he saw the accused dragging girl early in the morning on the day of incident. He further stated that, police met him for the first time after one month from the date of the incident. He further stated that, he disclosed the incident for the first time to the police and not to anybody else. Therefore, on the whole evidence of this witness does not appear to be natural, trustworthy and not reposing faith in the prosecution case.

21. PW-8 Dhondiba Ganpatrao Bhore, who is owner of the field wherein PW-7 Ganesh Solav was working as servant at the relevant time. In his evidence, PW-8 stated that, the incident took place prior to 7/8 months back. On that day, he along with Ganesh Solav had been to his field known as 'Tambat' situate adjacent to the Pandan and started the electric motor to water the said field. He, then, halted in the field for some time, and then he came back to home. He again went back to said field along with the tea for his labourer [Salgadi]. Whilst he was on his way to field with a tea pot, accused Dnyaneshwar was coming back towards village side. He did not talk to accused. He was wearing a Sandow Banian on his person and a pant at that time. It was a time of about 6.45 a.m. to 7.00 a.m. in the morning. PW-8, then, offered a cup of tea to Ganesh Solav [Salgadi]. PW-7 then told PW-8 that something had happened here. PW-8 told him that, a team of labourer for cutting the sugar cane have assembled in the field beyond the Pandan and it may be those labourers there. PW-8 again came back to his home. He did not see the accused in the village for 2-3 days after the incident.

22. In his cross examination, he stated that, it is true that, accused Dnyaneshwar used to go to his field by a Pandan road. The road which goes to village Barbadi approaches the road which goes from Adgaon to Purna. Accused Dnyaneshwar sown wheat crop in his field three weeks after happening of the incident. He further stated that, though police met him on the next day when the dead body of Raiwata was found in the well in his field but they did not record his statement. It appears that, when he was going back to the field along with the tea pot so as to serve the tea to his servant Ganesh Solav [i.e. PW-7], the accused Dnyaneshwar met him on the way wearing a sandow banian and pant on his person and he was proceeding towards village Adgaon Lasina. However, this witness has not stated anything that, accused was frightened or his behaviour was abnormal. He further stated in his cross examination that, the team of labourers for cutting the sugarcane had arrived at in the field of Munjaji Bhore. Therefore, this witness has stated that, nearby field of the spot of occurrence, the team of labourers was very much there. So far narration by the PW-7 to him is only that, PW-7 told him that, something had happened here and he replied to PW-7 that, team of labourer for cutting sugar cane have assembled in the field beyond the Pandan and it may be those labourers there.

If evidence of PW-7 perused carefully, it does not inspire confidence and secondly, if his version is taken as it is, he saw accused dragging the girl, however, there is no corroboration to his version, and therefore, it is unsafe to place reliance on his evidence.

23. Therefore, the prosecution has not established beyond reasonable doubt that, accused Dnyaneshwar was dragging the victim on the relevant day towards field. As already observed, neither PW-7 nor any other prosecution witnesses have actually seen the commission of rape or murder of the victim by the accused.

24. The Trial Court while appreciating evidence of PW-7 - Ganesh Solav observed that, his evidence clinchingly goes to show that, he had noticed the deceased alive for the last time in the company of the accused and nobody has seen her alive thereafter. With respect to the finding recorded by the trial Court, nowhere prosecution has brought on record that, the girl to whom accused was dragging was Raiwata. Neither PW-7 has stated that, the said girl was Raiwata nor PW-7 has noticed the dead body and stated that, the dead body is of the same girl to whom accused was dragging. Therefore, the findings recorded by the trial Court are totally perverse. No evidence is placed on record by the prosecution to suggest that, PW-7 has identified and has seen dead body and stated that, it is the same girl which he had seen which was dragged by the accused. The trial Court has also referred PW-7 and PW-8 as eye witnesses. In our opinion, there is no eye witness to the actual incident of rape or murder, and therefore, they should not have been referred as eye witnesses to the actual incident of rape or murder. Therefore, entire case of the prosecution rest upon circumstantial evidence.

25. The prosecution claims that, there is evidence in the form of the recovery at the instance of the accused Dnyaneshwar which clinchingly goes to show that, it was the accused and accused alone who must have dragged the victim girl to the standing sugar cane field. The trial Court has also accepted the said contention of the prosecution. As per the prosecution story, evidence in the form of memorandum available on record at Exhibit 31 goes to show that Odhani/Dupatta, note book and writing pad belonging to the deceased and her chappals were concealed by the accused in the field of Gajanan Gangaram Vaidya. It was produced by the accused before the police and it was seized by them under seizure panchanama Exhibit 32. Prosecution has placed reliance upon the evidence of PW-6, wherein PW-6 Kasabai in her evidence stated before the Court that, on the day of incident Revta was proceeding to attend her tuition class as usual by 6.00 a.m. to go to Purna. She was carrying with her a register and examination pad. On that day, she was wearing a Punjabi suit having flower design of Red colour and a Red scarf [Odhani]. She was wearing a brick coloured chappal on that day. She did not come back for whole day.

If the missing complaint is perused, the time of leaving of victim from the house is stated at 7.00 a.m. PW-6 in her evidence has stated that, she started at 6.00 a.m. First Information Report mentions the time when she left the house was at 6.30 a.m., therefore, the prosecution itself is not sure when actually victim left the house to attend the tuition classes at Purna. It has come in the evidence of PW-4 that, victim lastly attended the tuition class on 20.11.2010. Thereafter, it appears that, victim did not attend the class on 21.11.2010 and 22.11.2010 for two days before the alleged date of incident. The prosecution has not placed any evidence on record why the victim did not attend the class on 21.11.2010 and 22.11.2010, and whereabouts of victim on those two days.

PW-6 was cross examined by the defence, and in her cross examination, she stated that, she was unable to answer as to for which subject deceased Raiwata was taking tuition at Purna. She also does not know in which class Raiwata took admission and the name of the Director thereof. She has further stated that, though she told the Investigation Officer that, Raiwata used to carry with her the School register and examination pad while going for the tuition. However, police has not recorded that portion. She further stated that, she stated before the police that, on the day of incident, Raiwata was wearing a flower print salwar kurta and a red scarf [Odhani]. However that fact is also not appearing in her police statement. If evidence of PW-10 i.e. Police Officer is perused carefully, he has stated that, PW-6 while recording her statement did not tell him that, victim used to carry with her register and examination pad daily. She even did not tell that, on the day of incident, deceased Raiwata was wearing a Kurta Paijama of flower prints. Therefore, in the version of PW-6, for the first time same it was stated before the Court, was an attempt to improve the prosecution case. According to the prosecution, burnt piece of clothes was recovered from the sugar cane field at the instance of the accused. In fact, it has come in the evidence of PW-9 Ajimkhan i.e. panch, that the sugarcane field is open place. It has also come on record that, after harvesting the sugar cane crop, Khodwa [remains] was set on fire, and therefore, alleged recovery of piece of cloth, that too, after more than one month from the alleged date of incident is difficult to believe and accept as corroborative piece of evidence when prosecution has not brought on record substantive evidence. It has also come in the evidence of PW-5 (Police Officer) that, he did visit sugar cane field and also the well, and therefore, it is difficult to fathom that, nobody noticed piece of cloth or clothes of victim for more than one month. There are many adjoining fields and from the evidence brought on record, it appears that, said place from which the piece of cloth or articles are recovered is an open place. Though, prosecution claims that, Odhani, note book and writing pad belonging to the deceased and chappals were concealed by the accused in the field of Gajanan Gangaram Vaidya, it has come on record that, same place is an open place and according to the prosecution, the said articles were concealed by the accused, in thorny bush standing on the bandh of the land belonging to Gajanan Vaidya and then said articles were recovered at the instance of the accused. It is difficult to fathom that, for more than one month, when those articles are lying on the bandh of the field of Gajanan Vaidya, nobody has seen or noticed the said articles. Therefore, belated recovery of the articles, that too, from the open place is difficult to be believed and accept as evidence.

26. The Hon'ble Supreme Court in the case of Amitsingh Bhikamsing Thakur Vs. State of Maharashtra reported in AIR 2007 SC 676 : [2007 ALL MR (Cri) 1393 (S.C.)] in para No.29, has summed up various requirements of Section 27 of Evidence Act, which are reproduced as follows:

i) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.

ii) The fact must have been discovered.

iii) The discovery must have been in consequence of some information received from the accused and not by accused's own act.

iv) The persons giving the information must be accused for any offence.

v) He must be in the custody of a police Officer.

vi) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.

vii) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.

The Hon'ble Supreme Court in the case of Salim Akhtar @ Mota Vs. State of U.P. reported in AIR 2003 SC 4076 : [2003 ALL MR (Cri) 1167 (S.C.)] held that, the recovery made from open place which was accessible to all and everyone cannot be believed. Yet in another exposition, the Supreme Court in the case of Aslam Parwez etc. Vs. Government of NCT of Delhi reported in AIR 2003 SC 3547 held that, the possession of arms, revolver and cartridges recovered on the basis of disclosure statement made by accused, recovery made after 8 months and from open place accessible to all and everyone, accused could not be said to be in possession of the revolver and cartridges which were recovered and therefore, his conviction is liable to be set aside.

27. The prosecution has relied upon two circumstances, firstly deceased was last seen in the company of the accused and secondly, recovery of the articles at the instance of the accused. While appreciating the circumstantial evidence, the Hon'ble Supreme Court in the case of Hanumant Govind Nargundkar & another Vs. State of Madhya Pradesh reported in AIR 1952 S.C. 343 held that, in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and they should be such as to exclude every hypothesis except one proposed to be proved. The Supreme Court has consistently held that the following conditions must be fulfilled before the case against an accused can be said to be fully established on circumstantial evidence:-

i) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established,

ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

iii) the circumstances should be of a conclusive nature and tendency,

iv) they should exclude every possible hypothesis except the one to be proved, and

v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must that in all human probability the act must have been done by the accused.

In the case of Mohd. Mannan @ Abdulo Mannan Vs. State of Bihar, (2011) 5 SCC 317 : [2011 ALL SCR 2857], the Apex Court has reiterated the principles to be borne in mind while dealing with a case based upon circumstantial evidence in evaluation of the evidence adduced in the case. The Apex Court has observed as under :

"In our opinion to bring home the guilt on the basis of circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused. In a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn are to be cogently and firmly established. The circumstances so proved must unerringly point towards the guilt of accused. It should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. It has to be considered within all human probability and not in a fanciful manner. In order to sustain conviction circumstantial evidence must be complete and must point towards the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but inconsistent with his innocence. No hardand-fast rule can be laid down to say that particular circumstances are conclusive to establish guilt. It is basically a question of appreciation of evidence which exercise is to be done in the facts and circumstances of each case."

Aforementioned principle has been reiterated by the Hon'ble Supreme Court in the case of Ajitsingh Harnamsingh Gujral Vs. State of Maharashtra reported in (2011) 14 SCC 401 : [2011 ALL SCR 2475], in the case of Rajendra Wasnik Vs. State of Maharashtra (2012) 4 SCC 37 : [2012 ALL MR (Cri) 1375 (S.C.)], in the case of Shyamal Ghosh Vs. State of West Bengal reported in (2012) 7 SCC 646 : [2012 ALL SCR 1921] and in the case of Harivadan Babubhai Patel Vs. State of Gujrat reported in (2013) 7 SCC 45 : [2013 ALL SCR 2524].

In the case of Dhan Raj alias Dhand Vs. State of Haryana reported in (2014) 6 SCC 745 : [2014 ALL MR (Cri) 2602 (S.C.)], the Supreme Court held that, in a case of circumstantial evidence, if there are breaks in the chain of circumstances leading to the possibility of more than one inference. Benefit of doubt should be given to the accused.

The Supreme Court in the case of State of U.P. Vs. Satish reported in (2005) 3 SCC 114 in para No.22 held thus:

"22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2."

Yet in another Judgment in the case of Ramreddy Rajesh Khanna Reddy Vs. State of A.P. reported in (2006) 10 SCC 172 : [2006 ALL MR (Cri) 1533 (S.C.)], in para No.27 held thus:

"27. the last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration."

A similar view was also taken in Jaswant Gir Vs. State of Punjab reported in (2005) 12 SCC 438.

In the case of Ajitsingh, [2011 ALL SCR 2475] (supra), the Supreme Court held that, victim last seen alive with the accused and subsequently found dead. Duration of time between two events, held, ought to be so small that possibility of any other person being author of crime can be ruled out. In the case of the Shamal Ghosh, [2012 ALL SCR 1921] (supra), Supreme Court held that, where prosecution is relying upon last seen theory, it must essentially establish time when accused and deceased were last seen together as well as time of death of deceased. Last seen theory requires a possible link between the time when the deceased was last seen alive and fact of death of deceased coming to light. Reasonable proximity of time between these two events is a necessary ingredient.

In the case of Jagroop Singh Vs. State of Punjab reported in (2012) 11 SCC 768 : [2012 ALL MR (Cri) 2727 (S.C.)] has also held that, time gap between point of time when accused was last seen with deceased and when deceased was found dead, is an important aspect.

28. In the case of Shankarala Gyarasilal Dixit Vs. State of Maharashtra reported in AIR 1981 SC 765 (1), the Supreme Court held that, in a case of circumstantial evidence, the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. In the said case, the appellant therein Shankarlal Gyarasilal Dixit was convicted by the learned Additional Sessions Judge, Akola, for offences punishable under Sections 376 and 302 of the Indian Penal Code on the charge that on December 10, 1978 accused raped a five-year old girl called Sunita and thereafter committed her murder. In that case, it appears that, the prosecution proved that, the deceased Sunita died a homicidal death. There were injuries on the body of Sunita. She was raped or at least attempted to be raped before being murdered, was also proved by the prosecution. In that case, dead body of the victim was recovered from the bathroom of the house of the appellant. According to the prosecution case, the prosecution witnesses saw the appellant sleeping on a cot in the court-yard, with a cover pulled up to his face, Sunita was lying still and motionless in the bath-room, wrapped in a blanket. Witness Renukabai lifted her dead child, threw the blanket and ran home. Sunita's underpants was missing. It also appears that, Doctor examined the appellant on the same day. The appellant had put on two full pants, one on the top of the other. His under-pant was suspected to bear the mark of dried semen. There were marks of bruises over his left thigh, there was no smegma around the corona glandis and there was a small abrasion over the base of his glans-penis which had a bluish discolouration on it. It appears that, the appellant took defence of simple denial and stated that, he was falsely implicated in the case at the instance of his brother, mother and his neighbour Shrinarayan Sharma. The Supreme Court accepted the case of the prosecution that, Sunita died a homicidal death and also she was raped or at least attempted to be raped before being murdered, however, while considering 12 circumstances, which were pressed into service by the prosecution in that case, the Supreme Court held that, prosecution could not prove presence of the accused in the house at the relevant time, inasmuch as, though disclosure was made by the witnesses and in particular Ramrao to the police in his complaint, the name of the appellant was not disclosed. When the FIR was recorded no one thought that the appellant was responsible for the violence which was done to Sunita. Therefore, Supreme Court gave benefit of doubt to the appellant and by setting aside the Judgment of the trial Court and the High Court, acquitted the appellant therein. While appreciating circumstantial evidence, the Supreme Court held that, it is necessary to find out whether the circumstances on which the prosecution relies are established by satisfactory evidence, often described as 'clear and cogent' and secondly, whether the circumstances are of such a nature as to exclude every other hypothesis save the one that the appellant is guilty of the offences of which he is charged.

29. In the light of discussion in the forgoing paragraphs, in our considered view, the prosecution has utterly failed to establish the circumstance that, Raiwata was last seen in the company of the accused before her death. As already observed, even if evidence of PW-7 is accepted as it is, he has not stated any where that, girl which, according to him, was dragged by accused, was Raiwata. As already observed, belated registering of First Information Report and also recording statement of the witnesses has created serious dent to the prosecution case and truthfulness of the version of the prosecution witnesses.

The Supreme Court in the case of Harivadan Babubhai Patel, [2013 ALL SCR 2524] supra has held that, delay in lodging FIR, if explanation offered is satisfactory and there is no possibility of embellishment, delay should not be treated as fatal to prosecution. However, in the present case, the prosecution has not offered satisfactory explanation for delay in lodging the First Information Report and recording the statement of the witnesses.

30. As already observed, the alleged recovery at the instance of the appellant was from open place accessible to all and belatedly i.e. after one month looses its importance and that circumstance alone not sufficient to convict the accused.

31. The prosecution has not proved that, death was homicidal. The appellant is acquitted for the offence punishable under Section 376 of I.P. Code by the Trial Court. PW-3 Dr.Basveshwar Kanje, examined dead body and found same in decomposed state. If prosecution has not established that, the death was homicidal, the conviction of the appellant for the offence punishable under Section 302 of I.P. Code can not sustain.

32. It is settled law that, while motive does not have a major role to play in cases based on direct evidence but it assumes importance in cases based on circumstantial evidence. The Supreme Court in the case of Rushipal V/s State of Uttarakhand reported in 2013(12) SCC 551 : [2013 ALL SCR 930], in para 14 held that, it is fairly well-settled that while motive does not have a major role to play in cases based on eye-witness account of the incident, it assumes importance in cases that rest entirely on circumstantial evidence. It is further observed that, absence of strong motive is something that cannot be lightly brushed aside.

In the present case, the prosecution alleged that, accused wanted to commit forcible intercourse with the deceased, and therefore, after committing rape, accused killed the deceased and dead body was thrown in the well. However, Trial Court has acquitted the appellant from the offence punishable under Section 376 of I.P. Code, and therefore, the alleged motive has not been proved by the prosecution. Therefore, in absence of any motive and also the findings by the Medical Officer that, the death was homicidal, it is not possible to sustain conviction of the appellant as ordered by the Trial Court.

33. The prosecution claims that, the deceased was last seen in the company of the accused. Since the entire prosecution case rests upon circumstantial evidence, this circumstance assumes importance. However, the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more needs to establish to connect the accused with the commission of crime, as held by the Supreme court in the case of Kanhaiya Lal V/s. State of Rajasthan reported in (2014) 4 SCC 715 : [2014 ALL SCR 1542].

34. In the light of discussion herein above, we find that, the entire evidence and other documents placed on record clearly indicate that, the circumstantial evidence brought on record by the prosecution is too short to sustain the conviction of the appellant. It is also relevant to mention that if two views are possible, based on the evidence on record, one pointing to the guilt of the accused and other their innocence, the accused is entitled to have the benefit of one which is favourable to him.

35. Therefore, taking over all view of the matter, it clearly reveals that there is no complete chain of circumstance so as to sustain the conviction of the appellant. The Hon'ble Supreme Court in the case of Toran Singh Vs. State of M.P. reported in AIR 2002 SC 2807 : [2002 ALL MR (Cri) 2621 (S.C.)] held that the case of the prosecution should rest on its own strength and not on the basis of absence of explanation or plausible defence by the accused. In the case of State of Punjab V/s Bhajan Singh and others reported in AIR 1975 SC 258, the Supreme Court held that, suspicion, by itself, however strong it may be, is not sufficient to take the place of proof and warrant a finding of guilt of the accused.

36. The Supreme Court, in case of Kali Ram V/s. State of Himachal Pradesh, reported in AIR 1973 SC 2773 observed as under :

"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence."

37. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, reported in (1984) 4 SCC 166 : [2009 ALL SCR (O.C.C.) 281], the Apex Court has held that, the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.

It is also to be born in mind that the case in hand is a case of circumstantial evidence and if two views are possible on the evidence of record, one pointing to the guilt of the accused and other his innocence, the accused is entitled to have the benefit of one which is favourable to him.

38. We have to remind ourself of the observations made by the Supreme Court in the case of Sarwan Singh Rattan Singh V/s State of Punjab reported in AIR 1957 SC 637(1), which are as under:-

"The result is that, if the approver's evidence is discarded as unworthy of credit and his own retracted confession is excluded from consideration as not being voluntary of true whatever circumstantial evidence remains is obviously insufficient to bring home to Sarwan Singh the charge framed against him. If that be the true position, we must hold that, the learned Judges of the High Court were in error in convicting Sarwan Singh of the offence of murder.

It is no doubt a matter of regret that a foul cold-blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that, considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence."

39. Thus, upon re-appreciation of the entire evidence on record and after hearing the learned counsel appearing on behalf of the appellant and the learned Additional Public Prosecutor, we are of the considered opinion that, the prosecution has failed to prove the offence against the appellant beyond reasonable doubt. The appellant, therefore, in our opinion is entitled to be given the benefit of doubt.

40. Accordingly Criminal Appeal No. 9 of 2012 is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offences with which he was charged and convicted. Fine, if any, paid by the appellant be refunded to him. Since the appellant is in jail, he be released forthwith, if not required in any other case.

Appeal allowed.