JUDGMENT :

Abhay S. Waghwase, J.

1. Appellant Suresh is hereby taking exception to judgment and order of conviction dated 10.08.2016 passed by learned Additional Sessions Judge, Vaijapur in Sessions Case No. 102 of 2014, thereby holding him guilty for commission of offences under sections 302 and 201 of Indian Penal Code (IPC), vide instant appeal.

FACTUAL MATRIX

2. Appellant had illicit relations with one Shobhabai. Deceased Anil desisted appellant from maintaining and continuing such relations. Therefore, according to prosecution, deceased was viewed as obstruction and to eliminate him, appellant called him near the water tank and by use of knife he stabbed him to death and thereafter threw the body in the well for causing disappearance of evidence. Hence, he was arrested and chargesheeted on the basis of report lodged by wife (PW1).

After charge-sheeting, he was put up for trial before learned Additional Sessions Judge, who on appreciating the oral and documentary evidence, accepted the case of prosecution as proved and thereby convicted appellant for the charge of murder. Said judgment is now questioned on various grounds raised in the appeal memo.

RIVAL CONTENTIONS

3. Learned counsel for appellant would submit that implication and guilt recorded is in absence of any incriminating material. Learned counsel took us through the testimonies of prosecution witnesses and would submit that admittedly there was no direct evidence and case was entirely based on circumstantial evidence. Under such circumstances, he would further add that, it was incumbent upon prosecution at the threshold to establish very motive behind the occurrence by leading reliable evidence. However, it is submitted that, from none of the testimonies of prosecution witnesses motive is cogently proved. It is further submitted that, circumstance like last seen together is pressed into service, but even said theory has not been established. Learned counsel submitted that, though one witness is examined, he has only allegedly seen deceased talking with appellant. However, it is specifically pointed out that there is a gap of almost 12 to 13 hours between so called last seen and deceased found dead and according to learned counsel, gap being immense, it is unsafe to connect appellant with death of deceased. Referring to the recovery and discovery panchanama, it is submitted that such circumstance is also not proved beyond reasonable doubt. There are major discrepancies and shortfalls making it unsafe for reliance. He would strenuously submit that prosecution has come with a case of deceased being called by making a phone call, but prosecution has utterly failed to demonstrate as to who was the person who had called and admittedly there is no evidence to show that the appellant was the person who had called. Resultantly, it is submitted that prosecution had miserably failed to prove the case beyond reasonable doubt. According to learned counsel, it was a case of benefit of doubt, but trial court failed to consider and appreciate the evidence on the law as required and as such it is his submission that the conclusions recorded in the judgment being untenable, he prays to allow the appeal.

4. Canvasing in favour of judgment, learned APP would submit that, there is strong overwhelming evidence adduced by prosecution in trial court. Investigation revealed that appellant was harboring ill-will as deceased was preventing him from continuing illicit relationship with a lady. Therefore, as deceased has become a hurdle, it is pointed out that, he was called at the scene of occurrence and murdered. That, there is ample evidence about deceased Anil going on receipt of phone call towards the tank. There are witnesses, who had seen accused and deceased talking that night. Thereafter, deceased was found dead and so it is submitted that appellant being the last person in the company of deceased, he is rightly arrested, tried and rightly held guilty. It is submitted that all circum