KISHOR POPAT DEORE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, the appellant has impugned the Judgment and Order dtd. 20/2/2018, passed by the learned District Judge-3 and Additional Sessions Judge, Malegaon, in Sessions Case No.104 of 2016, convicting and sentencing him, as under:-

(2.) The prosecution case in a nutshell, is that the appellant used to ill-treat his wife 'Mohini' (daughter of PW1-Hansraj Shamrao Shinde) and would demand money to be brought from the father for purchase of a two wheeler. It is the prosecution case that the appellant brought Mohini to the hospital on 22 nd March 2016 and informed the nurse that Mohini had consumed poison. Mohini was declared dead on arrival. According to PW5-Shital Yadavrao Sonwane (nurse), she informed PW12-Balu Ratan Mali (Police Naik) about Mohini being brought by the appellant on 22 nd March 2016 at 9:15 p.m. and of the appellant informing her, that Mohini had consumed poison. PW5-Shital, informed PW12 that Mohini was declared dead on arrival. When the postmortem was conducted, the doctor opined that Mohini died due to 'Asphyxia due to combined effect of Manual strangulation and smothering which are sufficient to cause death in ordinary course of nature individually and collectivelly'. Viscera and other samples were preserved for further analysis. Pursuant thereto, an FIR was registered at the instance of PW1-Hansraj (father of Mohini) with Jaikheda Police Station, Nashik on 24 th March 2016. The said FIR was registered as against five persons i.e. the appellant, his parents who were living in the same house and two others i.e. the uncle and aunt of the appellant, who were also living in the same village. During the course of investigation, the police recorded the statements of the witnesses and after investigation filed charge-sheet as against the appellant and four others, in the Court of the learned Judicial Magistrate First Class, at Satana. Since the offences were triable by the Court of Sessions, the case was committed to the Court of Sessions for trial. Charge was framed against all the accused including the appellant for the offences punishable under Ss. 498A, 304B, 302, 323, 201, 504, 506 r/w 34 of the IPC. All the accused including the appellant pleaded not guilty to the charge and claimed to be tried. The prosecution, in support of its case, examined as many as fourteen witnesses i.e. PW1-Hansraj Shinde, father of Mohini (hostile); PW2-Hiraman Dadaji Wagh, panch to the inquest panchanama (hostile); PW3-Bhika Dadaji Shinde, panch to the inquest panchanama (hostile); PW4-Gayatri Hansraj Shinde, sister of Mohini (hostile); PW5-Shital Yadavrao Sonwane, the nurse of the Rural Hospital, Satana, where the deceased was admitted; PW6-Ramesh Nimbaji Jagtap, panch to the spot panchanama (hostile); PW7-Rakesh Pundlik Mahajan, the person who collected the vomit of the victim (hostile); PW8-Jayesh Hansraj Shinde, brother of the deceased (hostile); PW9-Dr. Anand Vilas Pawar, the doctor who conducted postmortem on the deceased; PW10-Kamalbai Baraku Ahire, panch to inquest panchanama (hostile); PW11-Tushar Pandurang More, panch to the seizure of clothes of the deceased (hostile); PW12-Balu Ratan Mali, Police Naik; PW13-Rajendra Narayan Holkar, Investigating Officer and PW14-Daulat Dashrath Koshare, Police Naik, who recorded the FIR. Thereafter, the statement of the appellant was recorded under Sec. 313 of the Code of Criminal Procedure. The appellant did not examine any witness in his defence. The defence of the appellant was that of total denial and false implication. The learned District Judge-3 and Additional Sessions Judge, after considering the evidence on record, acquitted four accused i.e. the parents of the appellant and the appellant's uncle and aunt of all the offences with which they were charged and convicted the appellant as stated aforesaid in paragraph 1 of this judgment. Hence, this appeal.

(3.) Learned counsel for the appellant submitted that the prosecution had failed to prove any motive for the appellant to commit the murder of Mohini, inasmuch as, the father, brother and sister of the deceased had turned hostile. He submitted that infact, their evidence would show that the deceased was not happy with the marriage i.e. her early marriage. He further submitted that the prosecution has also miserably failed to prove that the deceased died due to combined effect of Manual strangulation and smothering, considering the fact, that the prosecution had not ruled out the possibility of the deceased committing suicide by consuming insecticide i.e. Organophosphorus insecticide Dichlorvos (Nuvan). He further submitted that the fact, that the deceased committed suicide cannot be ruled out considering the C.A Report of the vomit, i.e. finding of insecticide and also having regard to the postmortem report, which reveals finding of a yellowish greenish coloured substance in the stomach of the deceased, as noted by the doctor conducting the postmortem. He submitted that the trial Court has essentially convicted the appellant having regard to Sec. 106 of the Evidence Act, only because the appellant brought Mohini to the hospital and disclosed that she had consumed poison. He submitted that infact, the said disclosure made by the appellant is consistent with the finding of the same, in the vomit i.e. the CA report and contents in the abdomen. He submitted that the learned Judge had failed to consider that the prosecution had failed to discharge its burden of proving its case beyond reasonable doubt against the appellant and instead had placed reliance on Sec. 106 of the Evidence Act, for convicting the appellant. He submitted that the even the presumption under Sec. 113B of the Evidence Act would not apply considering that all the witnesses i.e. the relatives of Mohini had turned hostile and as such the prosecution was unable to prove its case.