Judgment

DESAI, J.:- This appeal under Section 2-A of the SC (Enlargement of Criminal Jurisdiction) Act, 1970, by Pohalya Motya Valvi, original accused No. 1 in Sessions Case No. 12/71 on the file of Sessions Judge, Dhulia in Maharashtra State arises from a judgment rendered by the High Court of Bombay in Criminal Appeal No. 1329 of 1971 filed by the State of Maharashtra against the judgment of the Sessions Judge, Dhulia, setting aside his acquittal and convicting the appellant for having committed an offence under S. 302, Indian Penal Code and sentencing him to suffer imprisonment for life.

2. Parshi Motya Valvi, the deceased was the brother of the appellant and they were residing together, Motibai, P. W. 4 is the widow of Parshi Motya Valvi. Appellant was married to one Daharibai who was subsequently divorced. Appellant was keen to contract second marriage and was persuading his brother deceased Parshi Motya to arrange for cash, if necessary, by sale of some cattle heads belonging to the family, but the deceased was putting off the appellant under one pretext or the other this reluctance on the part of deceased Parshi Motya to provide necessary cash to enable appellant to contract second marriage is proffered by the prosecution as a motive for the crime. On the night of 1st Oct. 1970 both the appellant and the deceased Parshi Motya consumed two bottles of liquor and then took dinner and decided to go in search of extra helping of liquor which led them to the house of Bhikjya P. W. 8 residing at a distance of three miles from the house of the deceased. When both the brothers were at the house of Bhikjya, original accused No. 2 Bhatma is alleged to have joined them. Two bottles of liquor were purchased from Bhikjya and one was consumed at the house of Bhikjya and thereafter both the brothers and original accused No. 2 Bhamta left the house of Bhikjya together during the night. In the early hours of morning of 2nd Oct. 1970 the appellant alone returned to the house and on a query by Motibai, P. W. 4, the widow of the deceased, as to where her husband had gone appellant was found to be evasive in his reply. Motibai thereupon contacted Bhikjya who acquainted her with the events of the previous night. She contacted her father who was staying at Kalipada and Sarpanch Leta, P. W. 3 accompanied by Fatya, P. W. 5 and Bhongya, P. W. 7 visited the house of deceased Parchi Motya where appellant was present and he was questioned about the whereabouts of deceased Parshi Motya when appellant is alleged to have made some extra-judicial confession. Thereupon Police Patil Kutrya, P. W. 11 was contacted and on his questioning the appellant dead body of deceased Parshi Motya was recovered from the side of a nala. Immediately thereafter Police Patil Kutrya went to Dhengaon Police Station and gave information of the offence. An offence was registered and PSI, Mr. Patil. P. W. 14 commenced investigation. Appellant and Bhama original accused No. 2 were charge-sheeted for having committed offences under Ss. 302 and 201 read with S. 34 of the Indian Penal Code.

3. The learned Sessions Judge at the conclusion of the trial was of the opinion that the prosecution has failed to bring home the charge against both the accused and acquitted them.

4. The State of Maharashtra preferred an appeal to the Bombay High Court questioning the correctness of acquittal of the present appellant alone and not of accused No. 2. The High Court disagreed with some of the findings of the learned Sessions Judge and was further of the opinion that the established circumstances unequivocally point to the guilt of the appellant as being the murderer of his brother Parshi Motya and accordingly convicted him and sentenced him as above. Hence this appeal.

5. It is common ground that there is no direct evidence implicating the appellant. Prosecution case rests on circumstantial evidence. As the case depends on circumstantial evidence, at the outset the well-established principles govern