Point of Law : Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.

JUDGMENT :

Milind N. Jadhav, J.

1. This is an appeal against conviction of the Appellant by the Trial Court. The learned Sessions Judge, Mangaon, District Raigad, by judgment and order dated 28.11.2018, has convicted Shri Ganesh Bhagya Mandavkar (Appellant -originally Accused No. 1) and Mangesh Pandu Jadhav (originally Accused No. 2) of the offence punishable under Section 302 of the Indian Penal Code, 1860, (for short: “IPC”) read with Section 34 IPC. Under Section 235 (2) of the Code of Criminal Procedure, 1973, (for short: “CrPC”), the learned Sessions Judge has sentenced the accused to suffer life imprisonment and to pay a fine of Rs. 15,000.00 and in the case of default in the payment of the fine, to suffer rigorous imprisonment for one year each.

2. We are informed across the bar by the learned Public Prosecutor that Accused No. 2 expired during the pendency of the appeal. The present appeal is preferred by the original Accused No. 1. For the sake of convenience, the original Accused No. 1 i.e., Ganesh Bhagya Mandavkar shall be referred to as "Appellant".

3. The incident took place on 07.02.2017. The case of the Prosecution is that on 07.02.2017 at about 3:30 PM, Shri Narayan Kisan Giri (P.W. 2), the Village Police Patil of Ranvali Village, received a phone call from a lady called Smt. Chitrangi Chandrakant Shirpurkar a resident of Ranvali Village. She informed him that an unknown person has killed Savitri Sagar Pawar (hereinafter referred to as the "deceased") by strangulation and her dead body was lying in the jungle area. She asked him to proceed to the spot of the incident. Shri Giri reached the spot and found the deceased, lying dead on barren land belonging to Shri Pravin Sundar Gogarkar, with a cotton towel entangled around her neck and dry blood oozing out from her mouth, neck, cheek, and head. The husband of the deceased i.e., Shri Sagar Pawar, Shri Chandrakant Shirpurkar and the Appellant were found sitting near the body of the deceased. He thereafter informed the police authorities about the incident and filed the F.I.R. in the evening on 07.02.2017 (at about 8.48 p.m.) with Srivardhan Police Station, which has been marked as Exhibit "23".

4. The offence was registered initially against unknown persons by Shri Parshuram Narayan Kamble, Police Inspector (P.W. 4), who recorded the complaint, prepared the Inquest Panchanama in the presence of two panchas, and referred the body of the deceased for post-mortem. P.W. 4 visited the spot of the incident along with panchas, collected the evidence – items such as the towel entangled around the neck of the deceased, a pair of chappals and another pair of shoes and clothes of the deceased – and prepared a detailed panchanama which is marked as Exhibit "32". The seized items were sent to the Chemical Analyser on 11.02.2017; a certificate, marked as Exhibit "35" is placed on record. He then arrested the two accused i.e., the Appellant, and the Accused No. 2 on 16.03.2021 and 17.03.2021.

5. According to the Prosecution's case, the accused sought sexual favours from the deceased which she refused. Hence, the Appellant strangulated the deceased with the towel while the Accused No. 2 held her legs.

6. On completion of the investigation, a charge-sheet dated 13.06.2017 was filed in the Court of the Judicial Magistrate, First Class, Shrivardhan, who then committed the case to the Court of Sessions under the provisions of Section 209 of the CrPC, as the case is triable exclusively by the Court of Sessions. Charges were framed against the two accused, which were read out and explained to them in vernacular language. The Appellant and the Accused No. 2 both denied their complicity in the offence by a total denial, stating that a false case was lodged against them. However, the Trial Court found that the Appellant and the Accused No. 2 were guilty of committing the offence punishable under Section 302 IPC read with Section 34 IPC and convicted them by the impugned judgment and order dated 2