The prosecution must prove its case beyond reasonable doubt, and mere failure of the accused to explain circumstances does not suffice for conviction if the evidence is insufficient.

JUDGMENT :

Revati Mohite Dere, J.

1. By this appeal, the appellant has assailed the judgment and order dated 25^th September 2014, passed by the learned Additional Sessions Judge, Niphad, in Sessions Case No.47 of 2012, convicting and sentencing him, as under:-

- for the offence punishable under Section 302 of the Indian Penal Code (‘ IPC ’) to suffer imprisonment for life and to pay a fine of Rs.2,000/- in default, to suffer rigorous imprisonment for one year.

2. A few facts as are necessary to decide the aforesaid appeal are set out hereinunder :-

The appellant was in a relationship with the deceased and had introduced the deceased to PW1 – Balkrushna Chaudhary, as his wife. It is the prosecution case that 15 days prior to the incident, the appellant and the deceased alongwith two kids (kids from deceased’s first marriage) had come to PW1 – Balkrushna Chaudhary’s house for a job. According to PW1 – Balkrushna, one day prior to the incident, the appellant took a sum of Rs.2,000/- from him and went to attend the market at Ozar alongwith his wife and children; that on the next day when PW1 went to his field at about 6:30 a.m. to start the pump set and went to the shed where the appellant was residing, he found the deceased lying with a blanket on her body. On removing the blanket PW1 noticed some blood, pursuant to which he reported the same to Ozar Police Station. Pursuant thereto, PW1 – Balkrushna lodged an FIR, which was marked as Exhibit – 15. The appellant was arrested on 23^rd May 2012.

During the course of investigation, the police recorded the statement of witnesses, drew the panchanama and after investigation, filed a charge-sheet against the appellant in the said case, in the Court of the learned Judicial Magistrate First Class, Pimpalgaon (B), Niphad, for the offence punishable under Section 302 of the IPC . As the case was sessions triable, the case was committed to the Court of Sessions.

The learned Additional Sessions Judge-2, Niphad, framed charge (Exhibit – 7), as against the appellant for the offence punishable under Section 302 of the IPC , to which the appellant pleaded not guilty and claimed to be tried.

The prosecution in support of its case examined 8 witnesses. PW1 – Balkrushna Rangnath Chaudhary, the complainant, who had employed the appellant on his field; PW2 – Eknath Nana Chaudhary, panch to the spot panchanama; PW3 – Lalita Dattu Tongare (daughter of the accused and the deceased), aged about 6 years (aged about 4 years at the time of the incident). Her evidence was not recorded and whatever little that was recorded, she said nothing incriminating against the appellant; PW4 – Sindhubai Somnath Sitan, mother of the deceased; PW5 – Manoj Bhagwan Khairnar, the photographer; PW6 – Arjun Kacharu Mondhe, brother-in-law of the accused (hostile); PW7 – Dr. Rekha Malhari Sonawane, Medical Officer attached to Pimpalgaon Baswant Primary Health Centre and, PW8 – Gulabrao Parashram Wagh, Police Inspector attached to the Ozar Police Station.

The defence of the appellant was that of total denial and false implication.

After recording the 313 statement of the appellant and after hearing the learned counsel for the parties, the learned Additional Sessions Judge, Niphad, was pleased to convict and sentence the appellant as aforesaid in paragraph No.1 of this Judgment.

3. Learned counsel for the appellant submitted that the prosecution had not proved its case beyond reasonable doubt and as such the appellant be acquitted of the offence, for which he was convicted. He submitted that the circumstances on record were far from sufficient to convict the appellant for the said offence. He submitted that the appellant has primarily been convicted, having regard to Section 106 of the Evidence Act i.e. as the appellant had not explained the circumstances against him or discharged the burden cast on him under Section 106 of the Evidence Act . He submitted that the last seen evidence of PW1 cannot be termed as last seen having regard to the ev