IMPORTANT POINT
In murder cases based on circumstantial evidence, the prosecution must prove that the circumstances are consistent with the guilt of the accused and exclude any reasonable doubt of innocence, while the burden of proof may shift to the accused under Section 106 of the Evidence Act when the facts are within their knowledge.

JUDGMENT/ORDER

ABHAY S.WAGHWASE, J. - Original accused nos. 1, 2 and 3, who stood convicted by learned Additional Sessions Judge-4, Aurangabad in Sessions Case No. 375 of 2011 for commission of offence punishable under Sec. 302 r/w 34 of the Indian Penal code (IPC), are hereby assailing the said judgment and order of conviction dtd. 19/9/2014 by invoking Sec. 374 of the Code of Criminal Procedure (Cr.P.C.). During pendency of this appeal, accused-appellant no.1 Sarjerao died. Hence, vide order dtd. 9/3/2021, the appeal stood abated to his extent.

PROSECUTION CASE

2. Accused no.1 Sarjerao and his wife accused no.3 Phulabai had two sons, namely, Laxman (accused no.2) and deceased Dnyaneshwar. Wife of deceased Dnyaneshwar stayed with accused persons and her husband for six to seven months only. Thereafter she left deceased and went to her parents' house. Wife of accused had instituted proceedings and she wanted her husband to have distinct share in the land. Therefore she had left company of husband Dnyaneshwar and was put up with her parents. Dnyaneshwar was keen in bringing her back for cohabitation and this was precisely opposed by accused persons.

3. In the above backdrop, on 30/6/2011 accused nos. 1 to 3, i.e. parents and brother, beat Dnyaneshwar in their own house and all three of them strangulated him with a rope and committed his murder. Neighbour PW1 Bhimrao Kale set law in motion alleging that he heard shouts and cries of deceased from the house of accused. Deceased was screaming for help. Door of the house of accused persons was closed from inside. After short time, accused appellants only came out of the house. Informant and neighbours entered the house and saw Dnyaneshwar lying on the cot with strangulation mark and blood oozing from his ear. On the strength of above information, FIR was lodged and investigation was entrusted to PW8 API Budhwant, who carried out investigation which included arrest of accused, drawing spot panchanama, inquest panchanama and causing seizure under Sec. 27 of the Evidence Act. After gathering sufficient evidence, PW8 API Budhwant chargesheeted accused persons for commission of offence under Sec. 302 r/w 34 of IPC.

4. Case was on the file of learned Additional Sessions Judge-4, Aurangabad, who after framing charge and recording plea of the accused, proceeded to record evidence adduced by prosecution. Defence denied leading evidence. Learned trial Judge scrutinized the entire oral and documentary evidence and after hearing both sides, held that prosecution has succeeded in bringing home the charge and thereby convicted accused and sentenced them to suffer life imprisonment and to pay fine.

5. Above judgment is impugned herein by all accused by raising various grounds mentioned in the appeal memo.

SUBMISSIONS

6. The sum and substance of arguments advanced by learned counsel for the appellants is that there is no cogent evidence about involvement of accused persons in alleged death of Dnyaneshwar. It is pointed out that merely on the evidence of neighbours, FIR is entertained and only relying on their testimonies, conviction has been recorded. According to learned counsel, nobody had seen accused persons coming out of the house and the versions of witnesses to that extent are not sufficiently corroborated. According to him, testimonies of all neighbours are not only inconsistent, but also full of material contradictions, omissions and there are lot of improvements which are brought in their cross-examination rendering their testimonies doubtful and unreliable.

7. Learned Advocate for the appellants pointed out that here, there is allegation of strangulation, but said charge is attributed to all three accused. There is no evidence as to who played which role and therefore, according to him, learned trial court ought to have appreciated this aspect and ought not to have accepted prosecution case. Learned counsel emphasized that infact there is no evidence to show that accused no.3 Phulabai was also