Point of Law: Since there is no proper evidence that axe which was allegedly recovered was murder weapon, medical evidence that such an axe can cause the injuries that were found on the deceased, by itself, cannot be regarded as any incriminating circumstance.

JUDGMENT :

M.S. SONAK, J.

1. Heard Ms. Shweta Wankhede, learned counsel appointed under the Legal Aid Scheme to appear on behalf of the appellant and Mr. V.A. Thakre learned Additional Public Prosecutor for the respondent-State.

2. This appeal is directed against the judgment and order dated 31.08.2016 made by the learned Additional Sessions Judge, Nagpur in Sessions Trial No. 208/2013, convicting the appellant for an offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/- and in-default to under further rigorous imprisonment for one year.

3. The prosecution version is that the appellant was working with one Manoj Ahuja, a contractor, in the field of Prashant Pundlik Bhoyar at village Linga Pardi. The deceased Shankarrao Kokate was also working at the same site as Watchman. On 16.02.2013, Prashant had brought at the site 28 channels and 4 angles. Out of these, two angles and one channel were found to be missing. On inquiries, the deceased informed Prashant that it is the appellant, who had stolen the said channel and two angles. The appellant was angered with this allegation and bore a grudge against the deceased. It is due to this grudge that on 19.02.2013, the appellant assaulted the deceased with an axe and murdered him.

4. The charge was framed against the appellant which he denied. The prosecution examined 13 witnesses and thereafter, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure. Despite opportunities, the appellant neither examined himself nor led any defense evidence. By the impugned judgment and order, the learned Additional Sessions Judge has convicted and sentenced the appellant, as aforesaid. Hence, the present appeal.

5. Ms. Wankhede, learned counsel appointed under the Legal Aid Scheme to appear on behalf of the appellant, submitted that this is a case of circumstantial evidence and the principles for evaluation of circumstantial evidence have not been correctly followed by the learned Additional Sessions Judge. She submitted that this is also a case where the investigating agencies have manufactured the evidence and this casts serious doubt on the prosecution case. She made submissions on the so-called recovery of an axe and pointed out how crucial aspects have been missed by the learned Additional Sessions Judge in this matter. She pointed out that the motive was not established by the prosecution and the motive suggested was too flimsy to deserve any acceptance. She relied on Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, in support of her submission.

6. Mr. Thakre, learned Additional Public Prosecutor for the respondent-State, defended the impugned judgment and order based on the reasoning reflected therein. He pointed out that the blood-stained clothes of the appellant were discovered pursuant to the statement made by the appellant while in custody. He submitted that the Chemical Analyser report has confirmed the presence of the blood of the deceased on such clothes. He submitted that the motive was established by the prosecution and the chain of circumstance was complete. He submitted that the appellant acted with premeditation and was correctly convicted the appellant under Section 302 of the Indian Penal Code. He, therefore, submitted that this appeal may be dismissed.

7. The rival contentions now call for our determination.

8. Since this is a case based on circumstantial evidence, we will have to abide by the principles for evaluation of circumstantial evidence, as explained by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda (supra) at paragraphs 153 and 154 which read as follows:

“153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be f