VILAS RAGHUNATH KURHADE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE appeals filed under Section 374(2) of Cr.P.C, arise from the order of conviction and sentence passed on 7th January, 2002 by the learned Ad hoc Additional Sessions Judge at Pune, in Sessions Case No. 238 of 2001. The appellant in Criminal Appeal No. 152 of 2002 is on bail as of now and the appellant in appeal No. 82 of 2003 is in jail and he is undergoing the sentence. Both the accused came to be arrested on 14th February, 2001 and accused No. 1 has been in jail continuously from that date.

(2.) AS per the prosecution case accused No. 1 is the husband of P.W.3-Mangal and accused No. 2 is his cousin brother from maternal side and both of them are permanent residents of Panvel. On the date of the incident i.e. on 12th February, 2001 P.W.3- Mangal was in her parental home at village Rase for about one month prior to 10th February, 2001. During the said time there was yearly fete in the said village and, therefore, to celebrate the same accused had also gone to Rase. On 12th February, 2001 both the accused were in the house of the mother of Mangal i.e. P.W.2-Sugandha Dhondiba Gote as the guests. They were served with dinner and deceased Sayaji Mungse along with P.W.10-Shivaji Kedari was also present in the house of P.W.2 at about 10.00 p.m. Both Sayaji and Shivaji were the residents of village Rase. After he was served dinner Sayaji left the house of P.W.2 along with the accused and P.W.10-Shivaji so as to return to his house. The accused also accompanied Sayaji as well as P.W.10 as the house of P.W.10 was on the way and after dropping Shivaji at his house the accused continued to go with Sayaji. They returned to the house of P.W.2 past midnight and P.W.3-Mangal opened the door and they slept on the varandha whereas P.W.2-Sugandha and P.W.3-Mangal slept in the room. AS per the prosecution accused No. 1 woke up Mangal and told her that he had murdered Sayaji and on the next day early morning both the accused left for Panvel and were paid Rs. 200/ - for bus fare charges by P.W.2. After their departure P.W. 3-Mangal asked her mother P.W.2-Sugandha to go to the house of Sayaji and to find out his whereabouts as she suspected something at the behest of the accused. P.W.2-Sugandha, therefore, went to the house of Sayaji along with P.W.10 and she did not find him there. She heard some rumour and, therefore, she went to the bridge side and came to know that Sayaji was done to death and his body was in the water pit along side the bridge wall. Baban Kondiba Chavan, P. W. 1 gave intimation to the Chakan Police Station and within a short time the police party arrived. P.W.9-Kisan Dagadu Mungse identified the body of Sayaji as he was Sayaji's uncle. The dead body was sent for post-mortem which was conducted by P.W.7-Dr. Shivaji Rakhamaji Kharat. The chappal which was lying near the dead body was also recovered and the clothes of the deceased along with the chappal were sent for Chemical Analysis. The post-mortem report Exhibit "30" indicated that Sayaji was assaulted with fist blows and he had head injury with fracture of skull and thus he died a homicidal death. P.W.8-Dattatray a Bhagvant Mungse claimed that he had seen the deceased Sayaji Mungse in the company of the accused in the night of 12th February, 2001. The accused came to be arrested on 14th February, 2001. P.W. 13-Ramchandra Namdeo Pathare was the Investigating Officer and P.W.I2-Dnyandesh-war Shankar Mali conducted accidental enquiry and thereafter recorded the F.I.R. On completion of investigation P. W. 13 submitted a charge sheet and the case being exclusively triable by the Sessions Court the same came to be committed to the Sessions Court. The charge at Exhibit "4" was framed on 18th July, 2001.

(3.) MR. Kocheta, the learned Counsel for the appellants submitted before us that on all counts i.e. last seen theory, motive and extra judicial confession the prosecution case could not have been accepted by the trial Court as there was no reliable evidence adduced by the prosecution before it. The only circumstance of locating the blood of group AB on the clothes of accused No. 2 cannot be sufficient to connect the accused with the homicidal death of the deceased Sayaji and more so when panch witness P.W.6-Nagesh Tukaram Kadam and P.W. 11 Rajendra Tukaram Otarane had turned hostile. So far as the theory of motive was concerned, MR. Kocheta pointed out that the same was based only on hearsay and even the evidence of P.W.2-Sugandha or P.W.-3 Mangal or P.W.12- Dnyaneshwar Mali did not whisper anything on such an illicit relationship between P.W.2- Sugandha and the deceased Sayaji. It was further submitted that even in support of the last seen theory the prosecution failed to prove that the accused were in the company of the deceased or they were seen together last with him after 11.00 p.m. on 12th February, 2001 till 8.00 a.m. on the next date when his dead body was seen in the pit near the bridge wall on the bank of the local stream. He also submitted that the so-called extra judicial confession made by the accused No. 1 to P.W.3-Mangal has also not been proved and it is a very weak piece of evidence. Even otherwise, in view of Section 122 of the Indian Evidence Act the communication between the husband and wife is not admissible in evidence, unless the accused No. 1 had consented for the same. It was pointed out that there was no such consent and, therefore, the alleged extrajudicial confession could not have been taken into consideration by the trial Court. The learned Counsel relied upon the following decisions of the Supreme Court:-