NAGSEN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the Judgment and Order dated 27th February, 2013, passed by learned Additional Sessions Judge, Yavatmal, in Sessions Trial No. 14 of 2011, convicting the appellant-accused Nagsen Premdas Wagde of the offences punishable under Sections 302 and 324 of Indian Penal Code, and sentencing him to undergo Life Imprisonment and payment of fine of Rs. 4,000/-, in default, further Rigorous Imprisonment for four months for the former offence, and Simple Imprisonment for one year and payment of fine of Rs. 500/-, in default, further Simple Imprisonment for two months for the latter offence, the present appeal was filed by him.

(2.) Sau. Asmita wife of Sandeep Shende had come to her parents' house at Narsapur for the festivals of Rakhi and Pola in the year 2010. On 12th September, 2010, between 3.30 and 4.00 p.m., when she was at home and her grand-mother Kacharabai @ Kamlabai was grinding "Udid Pod" in the courtyard, the appellant with his accomplices entered the courtyard of her house and started abusing her. When she asked why they were abusing, they started beating her. While Kacharabai was attacked by accused-appellant Nagsen by a sword on her neck, thigh and head, accused Sanjay Wagde gave a blow of axe on her head. Seeing all this, Sau. Asmita rushed to the rescue of her grand-mother, but the appellant attacked her also on her nose and thumb of right hand by the sword, while accused Sanjay struck an axe on her head. She, thus, sustained bleeding injuries and fell unconscious. Kacharabai, however, died on the spot. Both were taken to hospital. Asmita survived. Son of Kacharabai Ramchandra lodged an FIR with Police Station, Kalamb, on the same day and offences under Sections 302 and 307 read with Section 34 of Indian Penal Code were registered. Police arrested the accused and conducted investigation. On completion of investigation, charge-sheet was filed. Trial was held. Trial Court heard the evidence and acquitted all other accused, but convicted the appellant Nagsen as above. Hence this appeal.

(3.) In support of the appeal, learned Adv. Mr. Sirpurkar for the appellant vehemently submitted that the entire prosecution case rests only on the evidence of Sau. Asmita Sandeep Shende [PW 5], and except her, there is no other evidence. According to him, the learned Trial Judge disbelieved the testimony of Asmita [PW 5] in so far as the other accused persons are concerned and acquitted them. The Trial Judge should have, for the same reasoning, acquitted the appellant also. He submitted that the prosecution case is based on a single testimony of Asmita, who was an interested witness and admittedly, there was a dispute with the appellant, inasmuch as she was complaining that the appellant was teasing her before and after her marriage. He submitted that upon reading the cross-examination of Asmita [PW 5], it clearly shows that much time before the incident, there were no instances of any confrontation between them or of any quarrel or as the case may be. In other words, Mr. Sirpurkar submitted that Asmita admitted in her cross-examination that there was no dispute or quarrel in the immediate past before the date of incident, due to which the incident could have taken place. Therefore, according to him, the case of the prosecution was unbelievable and untrustworthy. He then submitted that the prosecution did not prove any motive for the incident and, therefore, the prosecution case was liable to be rejected. In the alternative, Mr. Sirpurkar submitted that the offence of murder under Section 302, Indian Penal Code, was not proved by the prosecution, and, at the most, the lower offence under Section 304 Part II, Indian Penal Code, could have been said to have been committed and the appellant having undergone sufficient sentence, should be released forthwith.