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2013 Supreme(Bom) 2541
In the High Court of Bombay at Nagpur
A.B. CHAUDHARI & Z.A. HAQ, JJ.
Punjab
Versus
State of Maharashtra
Criminal Appeal No. 360 of 2010
Decided On: 18-12-2013
For the Appellant:S.V. Sirpurkar (Appointed), Advocate.
For the Respondent: T.A. Mirza, Additional Public Prosecutor.
Headnote:Indian Penal Code, 1860 - Sections 302 and 498-A - Conviction under. - Where evidence of PWs, corroborated by prosecution about ill-treatment given to deceased and unlawful demand made by accused persons and testimony of eye-witness, minor son of accused, inspiring confidence therefore conviction proper. - The prosecution has not brought on record any motive for the murder of ’A’and therefore, the conviction of the appellant for the offence punishable under Section 302 of the Indian Penal Code is not proper and justified and the judgment has to be modified to that extent and the punishment for lesser offence may be given to the appellant. Considering the manner in which the offence is committed and the number of injuries which are found on the body of deceased, the case of the appellant does not require consideration for punishment for lesser offence and the conviction of the appellant under Section 302 of the Indian Penal Code and Section 498-A of the Indian Penal Code has to be maintained.
Indian Penal Code, 1860 - Sections 302 and 498-A - Conviction under. - Where evidence of PWs, corroborated by prosecution about ill-treatment given to deceased and unlawful demand made by accused persons and testimony of eye-witness, minor son of accused, inspiring confidence therefore conviction proper. - The prosecution has not brought on record any motive for the murder of ‘A‘and therefore, the conviction of the appellant for the offence punishable under Section 302 of the Indian Penal Code is not proper and justified and the judgment has to be modified to that extent and the punishment for lesser offence may be given to the appellant. Considering the manner in which the offence is committed and the number of injuries which are found on the body of deceased, the case of the appellant does not require consideration for punishment for lesser offence and the conviction of the appellant under Section 302 of the Indian Penal Code and Section 498-A of the Indian Penal Code has to be maintained.
Indian Penal Code, 1860 - In view of the explanation given by the Investigating Officer in his evidence for the delay in recording the evidence of ‘S‘ and in views of the law laid down by the Hon‘ble Supreme Court, as above, the delay of 11 days in recording the statement of ‘S‘ does not affect the veracity of his testimony.
Indian Penal Code, 1860 - Sections 302 and 498-A - Evidence Act, 1872, Section 118 - Conviction under based on testimony of minor. - Since testimony of sole eye-witness, minor son of accused and deceased as to incident, who deposed against his father, inspiring confidence and remained unshaken in cross-examination where conviction based on same just and proper.
Z.A. Haq, J.
1. Heard Shri S.V.Sirpurkar, learned Advocate for the appellant/accused and Shri T.A.Mirza, learned Additional Public Prosecutor for the respondent/State.
2. The appeal arises out of the judgment passed by the learned Additional Sessions Judge, Buldana in Sessions Case No.36 on 2008 on 27th of January, 2010, convicting the appellant/accused for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer life imprisonment and to pay a fine of Rs.1000/and in default of payment of fine to undergo rigorous imprisonment for two months. The Trial Judge also convicted the appellant for the offence punishable under Section 498A of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/, in default to suffer R.I. for one month. The learned Trial Judge has directed that both the sentences shall run concurrently.
The learned Sessions Judge found that the prosecution has failed to prove the charges against Kailash Narayan Kakde, Narayan Gavhanji Kakde, Sau.Shashikala Narayan Kakde, Sau.Sunita Dilip Khillare and Sau.Rekha Rajesh Jadhav. Accused No.3 Narayan died during the pendency of the Sessions Case and therefore, case abated against him.
3. The case of the prosecution is as follows –
On 29th December, 2007, Shri Vasanta Mahada Hivale, resident of village Deulgaon Ghube, Tq.Chikhali, Distt.Buldana lodged report with Police Station Chikhali alleging that his daughter Mrs.Anita Punjab Kakde was killed by the appellant and his brother Kailash Narayan Kakde, his father Narayan Gavhanji Kakde, his mother Sau.Shashikala Narayan Kakde, his sister Sau.Sunita Dilip Khillare and Sau.Rekha Rajesh Jadhav. According to the complainant Vasanta, the marriage of Anita (deceased) and the appellant was solemnized 9 to 10 years prior to the incident and they had two sons; Master Shubham, aged 6 years and Master Suraj, aged 4 years. The appellant was serving on the private vehicle as driver. The appellant, Anita (deceased) and their children were residing in one portion of the house partitioned by means of curtain and other members of the appellant's family i.e. his father, mother, brother and sister were residing in other portion of the house. The appellant and his family members were making demands regularly and asked Anita to bring grocery articles from her parents every month and also money for household expenditure and Anita was given ill-treatment and harassment by them. About three years prior to the incident, the appellant had beaten Anita and he demanded tin sheets to be fixed on his house and the complainant and his other son-in-law Sanjay Sahebrao Kadam had purchased 5 tin sheets and had reached the tin sheets to the house of the appellant. In the earlier year, prior to the incident, the appellant, his father and his mother had beaten Anita and demanded door and the complainant Vasant purchased a wooden door for Rs.1500/and got it fixed to the house of the appellant.
The complainant stated that 8 days prior to the incident, Anita had come to her parents’ house at 2.00 p.m. At that time the complainant was in his field and his other daughter Mrs.Sunita was present in the house. Anita had told her sister that the appellant and his father and mother had asked her to bring Rs.30,000/from her father for the purpose of purchasing one Auto Rickshaw. Though Anita was asked to stay at her father’s house she left her father’s house at about 3.00 p.m. saying that if she does not return to her matrimonial home then the appellant and his family members would beat her. Mrs.Sunita Borde informed this fact to the complainant.
On 28th of December, 2007 at about 8.30 to 8.45 p.m., somebody informed the complainant that Anita was being admitted in the rural hospital Chikhali. After getting the information, the complainant along with his family members went to Chikhali. On 29th of December, 2007 they saw dead body of Anita and noticed injuries on her hands, l
