The main legal point established is the reliance on circumstantial evidence, including the 'last seen theory' and the chain of circumstances, to establish guilt in a murder case.

JUDGMENT :

N.B. Suryawanshi, J.

1. Heard.

2. By this appeal the appellant/original accused challenges the impugned judgment and order dated 1 August 2002 passed by Additional Sessions Judge, Khamgaon in Sessions Trial No. 16 of 1996 thereby convicting the appellant under Section 302 of the Indian Penal Code and sentencing him to suffer life imprisonment and to pay fine of Rs. One Thousand with default clause and under Section 201 of the Indian Penal Code with a sentence of rigorous imprisonment for seven years and to pay fine of Rs. Five Hundred with default clause.

The case of prosecution, in short, is as follows:

3. On 09/09/1995 Complainant Rajkumar Tiwari (P.W. No. 8) orally reported to Hiwarkhed Police Station that on that day at about 4.00 p.m. he and his driver Sudhakar were returning from Ganeshpur in his Matador bearing No. MH-28/5189. When they reached near bridge situated at milestone No. 9, he saw Truck No. MH-12/7341 parked on the road side and by the side of that truck in korati bushes smoke was coming out. Out of curiosity the complainant and his driver stopped their vehicle. Suddenly one person entered in the truck. On reaching near the flames the complainant and his driver saw a body was burnt on tyre. P.W. No. 8 and his driver immediately rushed to the Police Station and gave oral report. Thereafter they went to chase the truck. They caught the truck along with cleaner-Balu Kale and on inquiry, Balu Kale disclosed that he committed murder of the driver by inflicting wheel spanner blow and he kept the dead body on tyre, poured diesel on it and ignited it. P.W. No. 8 then gave message with Shri Baburao Lokhandkar, Police Patil of village Shirala to inform the Police Station Officer, Hiwarkhed that they have caught the accused. On receiving information, Police Sub-Inspector Charkhe (P.W. No. 12) and other staff came there. They accosted the accused and brought him to the Police Station along with truck. Thereafter the complainant lodged report (Exh. 41). On the basis of the First Information Report (Exh. 41) Cri. No. 62 of 1995 for the offences punishable under Sections 302 and 201 of the Indian Penal Code was registered with Hiwarkhed Police Station and the investigation commenced. After completing necessary investigation, charge-sheet came to be filed against the accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code. The case was committed to the Court of Session.

4. Charge for the offences punishable under Sections 302 and 201 of the Indian Penal Code was framed. In support of its case the prosecution examined in all 12 witnesses. The accused examined himself as defence witness No. 1.

5. It is the defence of the appellant/accused that on 09/09/1995 at 02:30 - 03:00 p.m. deceased driver-Sudam and the accused took meal at Khamgaon By-pass. At that time driver deceased Sudam had consumed liquor. While proceeding to Undri, the driver took three Mohammedan passengers, two gents and one lady in the truck. While the truck was proceeding, the deceased Sudam tried to outrage modesty of that lady, which annoyed two male members accompanying the said female. They dragged the driver in the forest area and killed him.

6. After recording the evidence the learned trial Court convicted the appellant hence the present appeal.

7. Learned Advocate for the appellant vehemently argued that the prosecution has failed to prove the guilt of the appellant. The only circumstance proved on record is 'last seen' together, motive is not proved. P.W. Nos. 9 and 11 who were examined to prove the motive have not identified the appellant. No blood was detected on the spanner, which is a murder weapon. The wife of the deceased categorically admitted that when the relations between her husband Sudam and accused were good, hence the appellant had no reason and/or occasion to kill the deceased.

By placing reliance in the ratio in Anjan Kumar Sarma v. State of Assam, reported in AIR 2017 SC 2617, he argued that suspicion c