JUDGMENT :

ABHAY S. WAGHWASE, J.

1. Appellant, a life convict, by virtue of instant appeal is taking exception to the judgment and order passed by learned Additional Sessions Judge, Aurangabad, dated 25.08.2016 in Session Case No. 393 of 2009, by which he is held guilty and convicted for offence under sections 302 and 201 of Indian Penal Code (IPC).

FACTS GIVING RISE TO SESSIONS TRIAL

2. Deceased Gangasagar was married to appellant in 1993. While residing at Gadadgavan, appellant put up demand of Rs.20,000/-. On account of failure to meet the demand, it is the case of prosecution that, she was subjected to ill-treatment. In the year 2003, accused took deceased to Nashik and from there he alone came back to the village. Deceased went to village Pimpri Ling along with her children. Subsequently, on assurance of appellant to treat her properly, deceased went back to cohabit with him. Appellant brought deceased for treatment at Aurangabad. There he sold her Mangalsutra. He made her consume liquor projecting it to be a medicine, i.e. in the forest of Mhaismal. It is specific allegation that, he thrust a stone on her head, killed her and thereafter threw her body in the valley and covered it of by use of foliage, so as to cause disappearance of evidence.

Dead body was detected by forest officials, who intimated police. On receipt of post mortem report regarding death to be due to head injury, police, on behalf of State set law into motion. Investigation revealed complicity of appellant and therefore, he was tried and finally held guilty and resultantly convicted and sentenced to imprisonment for life.

In above backdrop, appellant had preferred instant appeal challenging the judgment on various grounds mentioned in the appeal memo.

SUBMISSIONS

3. Learned counsel for appellant took us through the entire oral evidence as well as documentary evidence adduced in trial Court and she would submit that judgment is patently perverse, illegal and unsustainable in the eyes of law. According to her, evidence is either misread or not appreciated as required by law. She would strenuously submit that there being no direct evidence, entire story of prosecution was based on circumstantial evidence and but according to her, prosecution had miserably failed to prove any circumstance. According to learned counsel, in fact, there was not a single incriminating circumstance to connect appellant with the death of Gangasagar.

4. She would further submit that, in fact dead body was found in highly decomposed condition and therefore, it was unidentifiable. Learned counsel also took us through the testimony of autopsy doctor, more particularly the cross-examination and would point out that, the body was completely unidentifiable. It is submitted that, investigating machinery did not get DNA analysis conducted, as it had become essential for fixing identity. That, surprisingly identification of dead body is said to be got done from relatives, i.e. on the basis of clothes and some ornaments. However, she would vehemently submit that apart from failing to conduct identification of so called articles, it has not been demonstrated that the witnesses were really aware that those articles belonged to deceased and none else.

5. It is next submitted that prosecution came with theory of last seen together, but according to learned counsel, prosecution had miserably failed to cogently prove such circumstance. She gave the timeline relied by prosecution and would submit that the gap between deceased last seen alive in the alleged company of appellant and she found dead being immense and huge, such theory cannot be taken recourse to. According to learned counsel, the gap is almost of 4 to 5 days, and therefore, it is her submission that, it was not open for prosecution to put into play such circumstance.

6. Learned counsel further submitted that, there is said to be confession regarding assault and even under section 27 of the Indian Evidence Act, there is said to be disclosure abou