RAOSAHEB DAMU GHULE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is directed against the judgment and order dtd. 28/9/2016 passed by the learned Ad-hoc Additional Sessions Judge at Malegaon, District Nasik in Sessions Case No. 83/2013, convicting the appellant, as under :

(2.) The prosecution case, in a nutshell is, that the deceased-Khandu, elder son of PW1-Bapu Barsu Ghule was having an affair with the appellant's wife, pursuant to which, the appellant killed Khandu. According to PW1-Bapu (complainant), he saw his son-Khandu (deceased) and the appellant grazing sheep in the field of Tukaram Sonawane on 22 nd April 2013; that Khandu and the appellant had decided to stay in the field along with the sheep at night; and that on the next day, when he went to the field and asked the appellant where his son-Khandu was, the appellant replied that he was not there since last evening i.e. since 22/4/2013. It appears that thereafter, on the very same day, the dead body of Khandu was found in a well, entangled in a rope. Pursuant thereto, the villagers gathered on the spot and the dead body was removed. According to PW1-Bapu, he lodged an FIR as against the appellant alleging offence punishable under Sec. 302 of the Indian Penal Code.

(3.) Ms. Ansari, learned counsel for the appellant submitted that the prosecution had failed to prove the circumstances on record and the case as against the appellant beyond reasonable doubt. She submitted that infact, none of the circumstances point to the complicity of the appellant in the alleged crime. She submitted that the evidence of PW1-Bapu Ghule, cannot be termed as last seen. She submitted that the prosecution has not proved recovery of the stone and seizure of the appellant's clothes by cogent and legal evidence and as such, the conviction of the appellant cannot be sustained.