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However, his mother told Rahul that the partnership deed should be recorded in their names and then, they should decide what is to be done.

However, his brother was not empowered to do so. On 27 th His brother brought a deed for cancellation of partnership. However, his mother did not agree with the said proposal. Hence, there was hot exchanges of words between them. Thereafter, his brother Rahul left the house and proceeded towards Rahul Industries and he was very angry. He returned to the house at about 9.00 p.m. At that time, the accused tried out to reason with him, but he told that the partnership could be in the name of ssp 8 APEAL 848 of 2005 his mother and Rahul. The accused also informed the Rahul that he was not interested in the business since he was getting a job and leaving Pune for Mumbai on the very next date. However, his brother did not listen to him and he was not satisfied and was angry. Thereafter, the accused left the house at about 10.15 p.m. for cyber cafe and got a computer at 10.45 p.m. and he was there till 12.45 a.m. and thereafter, returned to home.

33. It is also argued on behalf of the accused that the unconsciousness of P.W.1 Rahul was not immediate after the occurrence of the incident and he did not lose his consciousness immediately when he saw the mother lying in a pool of blood, but lost consciousness after the lapse of reasonable period, which also raises suspicion against P.W.1 Rahul Joshi. It is further submitted that infact the mother of the accused had pawned jewellary for the accused to repay the bank loan of the accused and hence, the question arises as to why the accused would commit murder of his mother. It is further submitted that the accused was capable of maintaining himself since the death of his father till the ssp 25 APEAL 848 of 2005 occurrence of the incident in the year 2003 and therefore, there is no substance in the proposition putforth by the prosecution that the accused was unemployed in the year 2003. Infact, it is submitted that the accused did not ask the share from 1993 till 2003, which itself reflects that he was capable of earning money. According to the learned counsel for the appellant, the prosecution has not carried out any investigation in respect of the visit of the accused to cyber cafe, where the accused had gone on the date of the incident at about 10.15 p.m., on the day of incident i.e. on 27-02-2003 and he was there in the cyber cafe till 12.45 a.m. and after returning from cyber cafe found the main door of the house opened and therefore, went near the bedroom of his mother and found her in a pool of blood and the lapse of on the part of investigating agency is to the prosecution case. It is also canvassed by the learned counsel for the appellant that the conduct of P.W.1 Rahul is strange and it is surprising that he did not hear any noise/sound, although the incident of murder of his mother occurred in the adjacent room where he had slept during the relevant night. As mentioned hereinabove, even he did not lose consciousness immediately after the occurrence of the incident, which speaks volumes for itself. It is further submitted that infact P.W.1 Rahul Joshi was to be benefited by the death of his mother i.e. Victim herein, since he intended to cancel the partnership between him and the victim ssp 26 APEAL 848 of 2005 and desired to have the partnership firm in the name of stranger and the victim was obstacle therein since she opposed the said proposal. Moreover, there were only two partners in the said partnership firm i.e. P.W.1 Rahul Joshi and the victim and after the death of the victim, he alone became the owner of the said business, whereas, the accused herein, had no stake therein and there was absolutely no reason for the accused to commit the murder of his mother. Moreover, it is further canvassed that there is no direct evidence to connect the accused with the alleged crime and the circumstantial evidence adduced/produced by the prosecution is short of establishing the nexus between the accused and the crime and the present appeal deserves to be allowed by quashing and setting aside the conviction and sentence imposed upon the accused and accordingly, the accused deserves to be acquitted for the offence for which he is charged and convicted by the trial Court.

34. The learned APP countered the said submissions and opposed the said appeal vehemently and submitted that although, the accused putforth plea of alibi through his defence contending that on the relevant day, he left the house at 10.15 p.m. for cyber cafe and he was there at the cyber cafe and he got the computer at 10.45 p.m. and he was there at the cyber cafe till 12.45 a.m. and returned home thereafter, but the accused has not examined the owner of the said cyber cafe as a ssp 27 APEAL 848 of 2005 defence witness to prove and establish the said defence of alibi. It is also submitted that there is nothing on record to prove and establish the said plea of alibi canvassed by the accused, except the statement of the accused recorded under Section 313 of Code of Criminal Procedure. Moreover, it is also submitted that every incriminating circumstance was put to the accused through his statement recorded under Section 313 of Code of Criminal Procedure and therefore, no prejudice has been caused to him.

39. Besides, the accused has taken defence of alibi in his statement recorded under Section 313 of Code of Criminal Procedure, wherein he had stated that on the relevant day, he left the house at 10.15 p.m., for cyber cafe and got the computer at 10.45 p.m. at the said cyber cafe and he was on the computer till 12.45 a.m. and thereafter, he returned home and during the said period, the murder of the victim was committed in the absence of the accused. But, there is nothing on record to accept the theory advanced by him through his statement under Section 313 of Code of Criminal Procedure. Infact, the accused could have examined the owner of the cyber cafe as a defence witness to substantiate the said defence. But the said witness has not been examined by the accused for the reasons best known to him. Accordingly, the defence raised by the accused of alibi has no basis and foundation and therefore, ssp 31 APEAL 848 of 2005 the same is not acceptable.