STATE OF MAHARASHTRA Vs. KAMLAKAR TANAJI SHINDE

JUDGEMENT

(1.) By judgment and order dated 06.10.2009 in Sessions Case No. 251 of 2007, the learned Adhoc Addl Sessions Judge, Solapur convicted the accused - Kamlakar Tanaji Shinde for the offence under section 302 of I.P.C and sentenced him to capital punishment of death and fine of Rs. 5000/- in default to undergo imprisonment for two years. By the very same judgment and order, the accused Kamlakar also came to be convicted under section 364 of I.P.C and sentenced to R.I. for 10 years and fine of Rs. 2000/- in default to undergo further imprisonment for three months. As the accused came to be sentenced to death, the learned Sessions Judge made a reference to this Court under section 366 of Cr.P.C. for confirmation of death sentence. The appellant - original accused being aggrieved by the very same judgment and order, preferred Criminal Appeal No. 1078 of 2009. As both the confirmation case and the appeal were directed against the same judgment and order, hence, both these matters were heard together.

(2.) The prosecution case briefly stated is that Draupadi Shinde was residing at Babhalgaon with her husband. Draupadi had three sons PW 19 Vijaykumar, PW 7 Sarjerao and Rajendra. They were all residing separately at Barshi. Accused Kamlakar was the nephew of Draupadi. He was also resident of Babhalgaon. On 26.07.2007, Draupadi came to Barshi to take darshan of Lord Bhagvant and to meet her children. In the morning at about 9.00 a.m., Draupadi along with one Vimal Shinde came to the house of her son PW19 Vijay. At that time, PW 17 Vandana wife of Vijay was at home. They had tea, then Draupadi and Vimal left to visit the other sons of Draupadi and to go to the temple for darshan. Draupadi went to the house of her son PW 7 Sarjerao at about 11.30 a.m. Thereafter, Draupadi went and met her other son Rajendra. In the meanwhile, At about 2.00 to 2.30 p.m., accused - Kamlakar came to the house of Vandana and Vijay. At about 4.00 p.m., Draupadi came back to the house of Vandana after darshan. Vandana served her tea. After having tea, Draupadi said that she would return to Babhalgaon, therefore, Draupadi, accused Kamlakar and Vandana came out of the house. Kamlakar stopped at the shop of one Lata Bharate (PW12) to make a telephone call from the coin box. Thereafter, Kamlakar told Vandana that he and Draupadi would go to Babhalgaon and he told Vandana to return back to her house. On the next day i.e on 27.07.2007 at about 6.00 p.m., PW 3 Nandkumar Netake who was a resident of Babhalgaon and had a shop at Barshi received a telephone call from Babhalgaon asking him to find out whether Draupadi had arrived at the house of PW19 Vijay or not. Accordingly, he went to the house of Vijay. He made enquiry with PW17 Vandana Shinde who was present at home, whether Draupadi had arrived there or not, whereupon, Vandana informed him that Draupadi had already left on the earlier day at about 05.00 p.m for Babhalgaon. At about 07.00 p.m, Vijay - husband of Vandana came home. Vandana informed him that his mother had not reached Babhalgaon. They made inquiry with PW7 Sarjerao and Rajendra Shinde whether their mother Draupadi had come to their house. Sarjerao and Rajendra informed that Draupadi had not come to their house after 04.30 p.m. Vijay, Sarjerao and others searched for Draupadi but she could not be traced, therefore, on 29.07.2007 at about 11.35 a.m., PW 19 Vijay lodged missing report [Ex 60] at Barshi Police Station. In the said missing report, it is stated that at about 4.30 to 5.00 p.m. when Draupadi was returning with Kamlakar to Babhalgaon, while Kamlakar stopped to make a telephone call, Draupadi went little ahead and thereafter, she could not be found. The description of Draupadi was stated in the missing complaint that she was slim built, height about 5 ft and had wheatish complexion,. It was also stated that she had black and white hair and she wears spectacles. The description of clothes and ornaments on the person of Draupadi was also given i.e yellow Solapuri saree with red colour blouse and she was wearing Mangalsutra, two gold patalies [ type of bangles ], two gold rings and gold tops. The missing complaint was entrusted to PW5 ASI Doke. He made enquiry. During enquiry, it transpired that when last seen, Draupadi was on her way to Babhalgaon with accused Kamlakar, hence ASI Doke suspected accused Kamlakar and therefore, took him into custody. ASI Doke interrogated Kamlakar about the whereabouts of Draupadi whereupon Kamlakar told ASI Doke that he would show the spot where he had thrown the dead body of Draupadi, hence ASI Doke called two Pancha witnesses including PW1 Bhaskar Patil. Accused Kamlakar in the presence of Police and Pancha stated that he would point out the place where he had thrown the dead body of Draupadi. Kamlakar then led them to Ramling forest and showed the spot. At the spot, grass was found in a disturbed condition. They interalia found one human skull and mandible, two long piece of bones, black and white hair, piece of yellow colour saree, piece of red blouse with red button, piece of petticoat, one spectacle case, purse, pair of chappals, one pink colour button. PW 7 Sarjerao and PW 19 Vijay identified the piece of saree, piece of blouse, purse, slippers and spectacle case as belonging to their moher. After viewing the spot, ASI Doke was convinced that Kamlakar had murdered Draupadi, hence he lodged his complaint (Exh 36). On the basis of the FIR of ASI Doke, PW6 Dilip Rede- Patil registered C.R. No. 128 of 2007 for the offence under sections 302 and 364 of I.P.C. Investigation came to be entrusted to PW21 PI Pethe.

(3.) In the meanwhile, the bones found at the spot were sent to PW11 Dr. Peerzade who was working in Anatomy department of the Government Medical College at Solapur. After examining the bones, he gave his opinion (Ex. 47) that the skull belongs to a human being of female sex who was above 50 years of age and that the mandible and the skull belong to the same person. The black and white hair found at the spot was also sent to the chemical analyzer. As per Chemical Analyzer Report [Ex 63 Pg 110], hair found on the spot was found to be human hair. After completion of investigation, charge sheet came to be filed under sections 302 and 364 of I.P.C.