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2014 Supreme(Bom) 2433
IN THE HIGH COURT OF BOMBAY AT AURANGABAD BENCH
S.S. Shinde, A.I.S. Cheema, JJ.
Appa Gajabapu Koradkar - Appellant
Vs.
State of Maharashtra - Respondent
Criminal Appeal No. 101 of 2012
Decided On: 24.11.2014
Advocate Appeared:
For the Appellant: Yuvraj V. Kakade
For the Respondent: S.G. Nandedkar
In the facts of the present case, what happen from 9.45 a.m. onwards with Jaya was exclusively within the knowledge of the accused appellant, and therefore, once prosecution discharged his burden through PW-3 and PW-4 that, deceased was last seen in the company of the accused. It was for the accused to discharge onus upon him as to what happened.
Headnote:
CRIMINAL APPEAL - [SECTION 302 OF IP CODE] - [SECTIONS 498-A, 302 AND 201 OF IP CODE] - [FACT OF THE CASE, FINDING OF THE COURT, ISSUES, RATIO DECIDENDI, FINAL DECISION] - [MAIN LEGAL POINT]
Fact of the Case:
The appellant was convicted by the Sessions Judge, Ahmednagar, for the offence punishable under section 302 of IP Code. The case of the prosecution, in brief, is that the marriage between the accused and deceased Jaya was solemnized on 29.3.2003. After marriage, she started cohabiting with accused at his house at Bhavadi and gave birth to a son. Accused, however, used to ill-treat her on very minor causes, and used to give threats to kill her. One year prior to the date of the incident, on 24.5.2010, there was quarrel between accused and Jaya. Accused beat Jaya and left her at her parents' house. He did not come to see Jaya and son and, therefore, Jaya's brother Laxman Mohan Walhekar, her father Mohan Bapurao Walhekar and one Pandurang Laxman Guldagad, Nana Mhasu Karande and Tulsiram Sitaram Thombare on 2-3 occasions went to the house of the accused to convince him and request him not to torture Jaya. Accused, however, asked them to take legal action against him. Therefore, they went to the Police Station Shrigonda and lodged the complaint. Thereafter, there was settlement between accused and Jaya by the intervention of Police Officer in the Police Station, and after settlement Jaya went to matrimonial house with Pandurang Laxman Guldagad, Nana Karande, Uttam Dynandeo Ghogare. They requested accused to treat Jaya properly and not to torture her.
Finding of the Court:
The trial Court convicted the appellant for the offence punishable under section 302 of IP Code and sentenced him to undergo imprisonment for life and to pay fine of Rs. 1,000/-, in default of payment of fine, he shall undergo rigorous imprisonment for one year.
Issues: 1. Whether the prosecution has proved beyond reasonable doubt that the appellant accused committed murder of the deceased Jaya? 2. Whether the evidence of the prosecution witnesses is reliable and trustworthy? 3. Whether the defence taken by the appellant accused is probable and acceptable?
Ratio Decidendi: 1. The prosecution has proved beyond reasonable doubt through PW- 3 and PW-4 that, accused was last seen in the company of the deceased Jaya on the date of incident i.e. 24.5.2010 in between 9.00 to 9.45 a.m. 2. The evidence of PW-3 and PW-4 is reliable and trustworthy as they have stated about visit of the accused with his wife Jaya on 22.5.2010. Couple stayed in their house on 22.5.2010 and in the morning of 23.5.2010 the accused and deceased left with PW-3 and had dinner on the said night, then went along with PW-4 and stayed in his house during night. Again couple came back to the house of PW-3 and had meal, PW-4 accompanied couple, then, PW-3, PW-4 and accused along with Jaya went to the bus stop and in presence of PW-3 and PW-4 couple boarded in the bus going towards Shrigonda. PW-3 and PW-4 actually saw bus leaving the bus stop. 3. The defence taken by the appellant accused is not probable and acceptable as it has been falsified by the evidence of PW-7. PW-7 in his evidence stated that, accused came to his office at 2.00 p.m. and told him that, he wants to take divorce from his wife and he should assist him. When PW-7 replied that, it is not in his jurisdiction, appellant accused become violent and lifted the glass on the table, not only that but accused assaulted peon and clerk working in the said office, and subsequently offence was registered to that effect speaks volumes about the conduct of the accused.
Final Decision: The criminal appeal is dismissed.
S.S. Shinde, J.
1. This appeal is filed by the accused, aggrieved by the judgment and order passed by the Sessions Judge, Ahmednagar, on 26.9.2011, thereby convicting the appellant for the offence punishable under section 302 of IP Code. Appellant is sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/-, in default of payment of fine, he shall undergo rigorous imprisonment for one year. The case of the prosecution, in brief, is as under:
The marriage between the accused and deceased Jaya, daughter of one Mohan Baburao Walhekar, was solemnized on 29.3.2003. After marriage, she started cohabiting with accused at his house at Bhavadi and gave birth to a son. Accused, however, used to ill-treat her on very minor causes, and used to give threats to kill her. One year prior to the date of the incident, on 24.5.2010, there was quarrel between accused and Jaya. Accused beat Jaya and left her at her parents' house. He did not come to see Jaya and son and, therefore, Jaya's brother Laxman Mohan Walhekar, her father Mohan Bapurao Walhekar and one Pandurang Laxman Guldagad, Nana Mhasu Karande and Tulsiram Sitaram Thombare on 2-3 occasions went to the house of the accused to convince him and request him not to torture Jaya. Accused, however, asked them to take legal action against him. Therefore, they went to the Police Station Shrigonda and lodged the complaint. Thereafter, there was settlement between accused and Jaya by the intervention of Police Officer in the Police Station, and after settlement Jaya went to matrimonial house with Pandurang Laxman Guldagad, Nana Karande, Uttam Dynandeo Ghogare. They requested accused to treat Jaya properly and not to torture her.
2. On 22.5.2010, accused and Jaya went to her parents' house in the evening and had a dinner and stayed there for the night. On 23.5.2010, the maternal cousin [son of maternal uncle of Jaya], Bapu Tulsiram Thombare came at the house of Jaya's parents, and requested Jaya and her husband i.e. accused to come to his house for 'Aamras' meals. Accordingly, accused and Jaya went to Bapu's house at Mahandulwadi. On 24.5.2010, Pandurang Guldagad and Bhau Thombare went along with accused and Jaya at Bus Stop, Accused and Jaya boarded in Nagar-Shrigonda bus. Shri Pandurang and Bhau saw bus leaving the bus stop.
3. On 25.5.2010, Jaya's brother Laxman Mohan Walhekar read a news item published in the news paper, whereby he came to know that, his brother in law i.e. accused, had been to Shrigonda Police Station as some offence was registered against him for creating chaos in Tahsil office. The complainant Laxman Mohan Walhekar, therefore, wet to Police Station to see accused and his sister. His sister Jaya was not with accused and, therefore, he requested police to ask the accused as to, where is Jaya? The accused, initially, avoided to answer, but subsequently gave a statement that, he and Jaya, after leaving Mahandulwadi stepped down from the bus at Khakibaba bus stop, and thereafter, went to Komjaj Devi and had a Darshan of Komjai Devi. Thereafter, they were sitting on the western side of the Mandir and" while taking with each other, there was dispute between them, in the said dispute, the accused throttled Jaya with the help of saree, and then assaulted her with a stone on her head and committed her murder.
4. Shri Laxman Mohan Walhekar, the brother of deceased Jaya, immediately lodged the complaint at Police Station and on the basis of his complaint, Crime No. 190/2010 was registered under section 302 of I.P. Code.
5. P.I. Shri Madhukar Thakajirao Aute investigated into the crime against accused. The accused was already in police custody in Crime No. 186/2010 under sections 353, 427 of LP. Code, as he had assaulted the public servant i.e. Tahsildar, and while in custody, he disclosed about commission of crime No. 190/2010. He interrogated accused in presence of panchas. The accused had agreed to show the place of incident where his wife was murdered and where d
