JYOTI VIJAY MALUSARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal is preferred by appellant-original accused No. 1 against the judgment and order dated 28/10/2009 passed by the learned 1st Ad-hoc Additional Session Judge, Greater Mumbai in Session Case No. 501 of 2008, whereby the appellant/original accused No. 1 held guilty of offence u/s. 302 of Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs. 2,000/- and in default to suffer further rigorous imprisonment for six months. Being aggrieved by the judgment and order, the appellant has preferred this appeal. In brief, the facts leading to filing of this appeal are as under:

(2.) On completion of investigation, the charge sheet was prepared and filed in the court of Metropolitan Magistrate, 49th Court, Vikroli (E), Mumbai. Since the offence u/s. 302 of IPC being exclusively triable by Court of Sessions, the case was committed to Court of Sessions, Greater Mumbai. On committal of case, it was assigned to the file of 1st Ad-hoc Additional Sessions Judge, Greater Mumbai at Mumbai. On 16/10/2008, the learned 1st Ad-hoc Additional Sessions Judge framed the charges against appellant/accused No. 1 and co-accused-Jeevan Vaman Waragade. They were charged for committing offences punishable under sections 302, 120B, 109 and 201 of IPC. Both the accused pleaded not guilty and claimed to be tried.

(3.) In order to prove it's case, the prosecution has examined 13 witnesses. The appellant has examined one witness in support of her defence. From the cross-examination of the prosecution witnesses and statement recorded under section 313 of Cr. P.C. as well as the defence witness examined by appellant, the defence of appellant appears to be of false implication. She has filed statement in defence, wherein she has stated that she was taking treatment from Dr. Rahate (DW 1) as she was suffering from anxiety. On 14/06/2007, after dinner, her husband gave her medicine and thereafter she went to bed. Due to effect of medicine, she went in deep sleep. At about 6.00 a.m., she got up and tried to wake up her husband, however he did not wake up. She, therefore, suspected some foul play, therefore, she went outside the room. The room was open. She called her brother-in-law Abhay (PW 1). Her husband was taken to hospital and later on she learnt that her husband died. At about 11.00 a.m., she was taken to police station and detained and later on she was arrested in the evening. The accused No. 2-Jeevan had taken defence of total denial.