The prosecution must prove the case beyond reasonable doubt, and the circumstances relied upon must be firmly and cogently established.

JUDGMENT :

ABHAY S. WAGHWASE, J.

1. Both the appeals are arising out of judgment and order passed by learned Sessions Judge, Latur in Sessions Case No. 108 of 2014 and are therefore taken up and decided by way of this common judgment.

FACTS GIVING RISE TO SESSIONS TRIAL

2. Appellants, i.e. accused no. 1-Hanmant and accused no. 2- Ramakant were chargesheeted by Chakur Police Station, Latur for commission of offence punishable under Section 302 r/w 34 of the Indian Penal Code [IPC] on the premise that, they intentionally and knowingly committed murder of Vikas by assaulting him with axe for maintaining illicit relations with wife of accused no. 2-Ramakant. Brother of deceased Vikas i.e. PW2-Govind set law into motion by approaching Chakur Police Station informing that deceased Vikas had kept his wife and children at Latur for education purpose and deceased was cultivating his own land at village Bothi by engaging servants and he was commuting between Latur and Bothi and at sometimes stayed at Bothi itself for agricultural purpose and mostly stayed in the house of accused Ramakant.

Informant alleged that on 06.07.2014, both accused persons were in the company of deceased Vikas and they together enjoyed party in the field and on the intervening night of 06.07.2014 and 07.07.2014, in the backdrop of suspicion of illicit relation between deceased Vikas and wife of accused no. 2-Ramakant, both accused persons assaulted deceased with axe. Hence the FIR Exhibit 39.

3. After investigation, accused were chargesheeted and after framing charge trial was conducted during which prosecution examined in all 9 witnesses and relied on documentary evidence. Learned trial Judge appreciated and analyzed the above evidence and concluded that prosecution has established the charge and thereby convicted and sentenced both accused to suffer imprisonment for life and to pay fine and in default, to suffer rigorous imprisonment.

It is the above judgment and order of conviction which is assailed herein by both the appellants by invoking Section 374 of the Code of Criminal Procedure [Cr.P.C.]

RIVAL SUBMISSIONS

On behalf of the appellants:

4. We have heard learned counsel for the appellant Ramakant in Criminal Appeal No. 262 of 2016 extensively and he had taken us through entire evidence on record, more particularly the evidence adduced by prosecution to support circumstances of motive and last seen together. Questioning the motive, he took us through the evidence of very informant as well as PW5-Pawan. According to him, motive is not at all getting clear from these witnesses. He would emphasize that case in hand being based on circumstantial evidence, it was imperative for prosecution to establish, at the threshold, availability of motive. He pointed out that informant’s evidence is silent whereas evidence of PW5-Pawan is rendered doubtful in the light of answers given by him in cross-examination. Further, according to him, there is no material or corroborative evidence on the aspect of alleged affair between deceased and wife of appellant Ramakant. Inviting our attention to the FIR, he submitted that from the FIR itself it is evident that informant had entertained mere suspicion. As regards the circumstance of last seen together is concerned, he took us through the evidence of PW2-Govind (informant) and PW-6 Arjun and would submit that these witnesses claim to have seen deceased in the company of accused in the evening, but deceased was found dead at around 8.00 a.m. next day and the gap of more than 12 hours being enormous, it is his submission that it was not open for prosecution to deploy theory of last seen together. At this juncture he also submitted that even time since death has not been stated by autopsy doctor and therefore assessment of time done by learned trial Judge is without strong foundation.

5. He strenuously submitted that though recovery is attributed to accused persons under Section 27 of the Evidence Act, taking into account the fact of date of s