JUDGMENT :

REVATI MOHITE DERE, J.

1. The appellant has impugned the Judgment and Order dated 9th January 2014, passed by the learned Additional Sessions Judge, Malegaon in Sessions Case No. 72 of 2011, convicting and sentencing, him as under:

(i) for the offence punishable under Section 302 of the Indian Penal Code, to suffer rigorous imprisonment for life and to pay fine of Rs.2,000/- in default of payment of fine, to suffer rigorous imprisonment for two months.

(ii) for the offence punishable under Section 201 of the Indian Penal Code, to suffer rigorous imprisonment for one year and to pay fine of Rs.1,000/- in default of payment of fine, to suffer rigorous imprisonment for one month. Both the substantive sentences were directed to run concurrently.

2. The prosecution case in brief is as under:

According to the prosecution, deceased-Alkabai Shivaji Gaikwad, left home one day after a quarrel, to purchase some articles from the bazar. It is alleged that Alkabai’s two children i.e. PW 1-Vishwas Pawar and PW 2-Ratna Pawar saw the appellant i.e. their step father following their mother Alkabai to the bazar through Sawki Road. Thereafter, neither the appellant nor Alkabai returned home for about 2 to 3 days. It is the prosecution case, that after 2 to 3 days of Alkabai going missing, PW 1-Vishwas saw the dead body of his mother in a well, when he had gone to start the water pump of the well. PW 1-Vishwas saw Alkabai’s hands tied, and her neck tied to a saree. Pursuant thereto, Alkabai’s son-Vishwas (PW 1) informed the Police Patil, who came to the spot. Pursuant thereto, the dead body of Alkabai was removed from the well, inquest panchanama and spot panchanama were done. Thereafter, the postmortem examination was performed on the dead body and thereafter, the police recorded the FIR (Exhibit-17) of Alkabai’s son-Vishwas. During the course of the investigation, the statement of the witnesses were recorded and after investigation, charge-sheet was filed in the said case, as against the appellant, in the Court of the learned Judicial Magistrate First Class. As the offences were exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions for trial.

The learned Additional Sessions Judge was pleased to frame charge as against the appellant for the offences punishable under Sections 302 and 201 of the Indian Penal Code. The appellant pleaded not guilty to the charge and claimed to be tried.

The prosecution in support of its case examined as many as 5 witnesses i.e. PW 1-Vishwas Deoba Pawar (complainant and son of the deceased-Alkabai); PW 2-Ratna Devba Pawar (daughter of deceased-Alkabai), both, to show that the appellant was following Alkabai on the day of the incident; PW 3-Dr. Nitin Shankarrao Chitalkar, the doctor who performed the postmortem examination on deceased-Alkabai; PW 4-Suman Anil Nikam, deceased-Alkabai’s real sister and PW 5-Gopal Natthu Gadhari, the Investigating Officer, in the said case.

The defence of the appellant was that of denial and false implication. No defence witness was examined by the appellant in support of its case.

The learned Judge after hearing the parties was pleased to convict the appellant, for the offences as afore-stated in Para 1.

3. Learned Counsel for the appellant assailed the judgment on several counts. He submitted that the prosecution had not proved its case beyond reasonable doubt as against the appellant, in particular, since the case was entirely based on circumstantial evidence. He submitted that the evidence on record would show that neither the date or time, when the appellant was last seen in the company of the deceased has been established by the prosecution nor does the postmortem report or the doctor’s evidence reveal, as to how many hours prior, Alkabai was assaulted and her dead body thrown in the well. He submitted that merely because the appellant was absconding, the same, cannot be said to be incriminating, more particularly, the same cannot be a ground