2023:BHC-AUG:25930-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 193 OF 2019 Udhav S/o. Punjaram Nawsagre, Age : 55 years, Occu. Agri., R/o. Belgahvan, Tq. Hadgaon, Dist. Nanded. … Appellant.

(Orig. Accused)

Versus The State of Maharashtra … Respondent.

…

Mr. V. S. Bedre, Advocate for Appellant (Appointed through Legal Aid)

Mr. S. D. Ghayal, APP for Respondent – State ...

CORAM : SMT. VIBHA KANKANWADI AND ABHAY S. WAGHWASE, JJ.

DATED : 7^th DECEMBER, 2023 JUDGMENT (PER ABHAY S. WAGHWASE, J.) :

1. Judgment and order of conviction passed by learned Additional Sessions Judge-I, Nanded dated 16.05.2018 in Sessions Case No.100 of 2015, holding appellant Uddhav guilty for charge under section 302 of Indian Penal Code (IPC) is now taken up by way instant appeal, thereby questioning its legality, maintainability and sustainability.

FACTUAL MATRIX

2. To put it in brief, appellant Uddhav husband of deceased was an agriculturist and in spite of their marriage to be many years old, he suspected her chastity and harassed her. Her parents, relatives and neighbours were all aware of it.

3. On 17.06.2015, while labouring in the field, in above backdrop appellant assaulted Laxmibai by use of pick-axe, causing her multiple injuries which turned out to be fatal. PW6 Chayabai, who was also working in the adjoining field, heard shouts of deceased and rushed there and found Laxmibai lying with bleeding injuries. Appellant was present there. PW6 Chayabai received oral dying declaration on a query by her to the deceased regarding appellant assaulting her. While undergoing treatment, she succumbed to the injuries.

FIR of the above occurrence was registered and appellant was arrested, interrogated and after completion of investigation, he was duly charge-sheeted.

4. Learned Additional Sessions Judge-I, who was seized with the matter, undertook trial and on appreciating the evidence held appellant guilty for homicidal death of his wife, he was let off from charge under section 498-A of IPC for want of evidence.

Instant appeal arises out of above judgment and order.

SUM AND SUBSTANCE OF THE ARGUMENTS OF APPELLANT AND RESPONDENT APPELLANT :-

5. Learned counsel for appellant would submit that, implication is in absence of cogent and reliable evidence. According to him, there is no distinct evidence in support of alleged motive. He pointed out that, case of prosecution has been accepted by learned trial Judge without assigning sound reasons. He pointed out that, there is no independent witness or evidence. That, almost all witnesses are related witness and hence interested witnesses. He emphasized that, it is doubtful whether informant, who is so called eye witness had really seen the incident, more particularly, in view of answers given by her in the cross. That, therefore case was based on circumstantial evidence, but none of circumstances are firmly and cogently proved. He further pointed out that, even recovery is at belated stage. There is no corroboration from independent corner to the testimony of PW1 Smita and PW6 Chayabai. Lastly, it is submitted that, case has not been proved beyond reasonable doubt, and therefore findings and the conclusion drawn by the learned trial Judge cannot be allowed to be sustained.

PROSECUTION :-

6. Learned APP while canvassing in favour of the judgment under challenge would submit that, there is direct eye witness. Motive is clearly established by examining PW1 Smita and PW6 Chayabai. Medical evidence corroborates ocular account. There is recovery at the instance of appellant and therefore cumulative effect of such evidence which has remained intact is rightly made the basis of conviction by learned trial Judge and consequently no fault whatsoever could be found in the judgment and hence he prays to dismiss the appeal.

7. Being first appellate court, we have re-analyzed, re- appreciated and re-examined the entire oral and documentary evidence adduced by the prosecution in trial court. Papers show th