The court established that a conviction for murder requires conclusive evidence, and in the absence of such evidence, a charge can be reduced to culpable homicide not amounting to murder.

JUDGMENT :

Neeraj P. Dhote, J.

1. By the present Appeal under Section 374(2) of the Code of Criminal Procedure, the Appellant has challenged his conviction for the offence punishable under Section 302 of the Indian Penal Code [hereinafter referred to ‘IPC’] and the consequent sentence to suffer imprisonment for life and fine of Rs.5,000/- in default, to undergo Rigorous Imprisonment for six months, recorded by the learned Additional Sessions Judge, Parbhani, in Sessions Case No. 130/2017, vide Judgment and Order dated 03.11.2020.

2. The Prosecution case, as revealed from the Police Report, is as under :-

2.1. The Appellant and acquitted Accused No.2, who was the wife of Ashroba (hereinafter referred to as ‘Deceased’), were having illicit relations. They were residing in the same village, namely, Ukhalad, Tq. & Dist. Parbhani. The Deceased had gone to Nanded for some work. He returned in the village by 10:00 pm. Accused No. 2 was not at home. The Deceased went in search of Accused No.2. As the Deceased did not return till midnight, his brother Kailash Mallahari Waghmare gave phone call on the mobile of Deceased. He heard the ring tone of Deceased’s mobile. He saw the Deceased lying in front of the house of the Appellant with injuries on the body. The mobile was in the pocket of Deceased. The brother of Deceased informed the village Sarpanch, who in turn informed the Police. The Police came on the spot. Deceased’s brother lodged report with the Police Station, Tadkalas, against the Appellant and the acquitted Accused and Crime bearing No.165/2017 for the offence punishable under Section 302 r/w 34 of the IPC, came to be registered.

2.2. Police prepared the Inquest, conducted Spot Panchanama and referred the dead body for post mortem. The statement of the witnesses were recorded. The Appellant and the acquitted Accused came to be arrested. During the course of investigation, the knife came to be seized at the instance of the Appellant pursuant to the disclosure statement. The clothes of the Appellant came to be seized. The call records of the mobile phone of the Appellant, acquitted Accused, Deceased and Informant were called from the Service Provider. The post mortem report was collected. The articles seized during the investigation were referred for Chemical Analysis [for the sake of brevity “CA”]. The CA reports were received. The relevant documents were collected. On completion of the investigation, the Appellant and the acquitted Accused came to be charge-sheeted.

2.3. On committal, the learned Trial Court framed the Charge against the Appellant and the acquitted Accused for the offence punishable under Section 302 r/w 34 of the IPC, at Exh.08. They denied the Charge and claimed to be tried. To establish the Charge, the Prosecution examined in all thirteen (13) witnesses and brought on record the relevant documents. After the Prosecution filed evidence closure pursis, the statement of the Appellant and the acquitted accused came to be recorded under Section 313(1)(b) of the Cr.P.C. After hearing both the sides and appreciating the evidence on record, the Appellant came to be convicted as referred to above in paragraph no. 1, and Accused No. 2 came to be acquitted by the learned Trial Court.

3. It is submitted by the learned Advocate for the Appellant that, the case is based on circumstantial evidence. There was no evidence to show that the Appellant was present at his house at the relevant time. The blood on the spot of incident and the injuries on the Appellant show that scuffle took place. There were no calls in the CDR to corroborate the version of Informant that he made a phone call on the phone of the deceased. The discovery and seizure of knife at the instance of the Appellant were delayed. Though the Homicidal death is not in dispute, the evidence available on record fall short of establishing the Charge of Murder against the Appellant. In the alternative, he submitted that, even if the evidence on record is accepted as it