PARMANAND BODHI PANDHARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The present Criminal Appeal is directed against the judgment and order dated11-10-2002, passed by the 2nd Adhoc Additional Sessions Judge, Nagpur in Sessions Trial No. 165/2002, whereby the appellant is convicted for the offence punishable under section302 of Indian Penal Code and sentenced to suffer R. I. for life. THE appellant is also convicted along with other co-accused Biran for the offence punishable under section201 read with Section34 of Indian Penal Code and sentenced to suffer R. I. for one year and to pay fine of Rs. 1,000/- each. THE sentences are directed to run concurrently.

(2.) The prosecution case in nut shell is as under : - THE prosecution stated that one Kiran Mendjoge (P. W.1) of village Hingna lodged oral report in Police Station on16-11-2001 vide Exh. 35, alleging that accused No. 1 (appellant), was residing in a hut constructed in his agricultural field with his wife (deceased - victim) and son (original accused No. 2 ). On 15-11-2001 when complainant - Kiran was in his field, Rajesh Giri and 7 to 8 boys inquired from him about some murder which has taken place in that area which he denied, as he had no knowledge of the same. He made enquiry with the appellant and the appellant stated that he too had no knowledge. After 1 1/2 hour when accused No. 1, 2 & two other persons came to hut of accused No. 1 (total 4 persons), he again made enquiry about murder and accused No. 1 answered in negative. Complainant made enquiry about wife of the watchman i. e. appellant, but both father and son told him that she had gone to village Shivani i. e. their native place. At about3. 30 P. M. , one contractor doing civil work of dam on adjacent river came on cycle and he also made similar enquiry. At that time complainant told him that there existed one empty pit which was covered by hip of sand. On 16-11-2001, when the complainant had taken his cattles to the river, at that time Manoj son of Dhanraj Patil was grazing she goats. Said Manoj Dhanraj Patil told the complainant that watchman - Pandhre i. e. the present appellant, was filling up pit by stones and sand and when appellant saw Manoj, he went away. 15 minutes thereafter, the appellant came back to his hut and the complainant along with some persons went to his hut and at that time the appellant gave admission and confessed that he committed murder of his wife by name - Gendabai. He further told that he buried her in pit. THE complainant then came to police station, Hingna and lodged the oral report in police station.

(3.) The learned counsel representing the appellant has contended that, there is absolutely no material on record against the appellant and the judgment of trial court is based upon mere conjectures and surmises. She contends that the oral report allegedly lodged by P. W.1 - Kiran, has not been exhibited and the facts as stated therein are not at all proved. She contends that the story of the prosecution that the complainant got knowledge because of the alleged murmuring by son of appellant under influence of liquor, is not at all established. She further contends that provisions of Section27 of Evidence Act are not at all applicable, because even according to the prosecution the fact that body was in the said pit, was known to the complainant as also to P.W.2 his brother and other persons. She has contended that the prosecution failed to prove discovery under section27 of the Evidence Act. THE prosecution also could not prove that the appellant had given any extra judicial confession admissible in law. It is argued that the fuel stick allegedly discovered pursuant to the disclosure statement made by the appellant had no blood stains and hence is not incriminating circumstance. She has further submitted that no blood stains were found on the clothes of the appellant. THE prosecution failed to establish and prove requisite chain of circumstances which would rule out innocence and would point to the guilt of the appellant and therefore failed to prove the charge beyond all reasonable doubt. THEre is no evidence to show that the appellant was last seen together with the deceased just before the occurrence. Prosecution also could not establish the motive. It is therefore, contended by the counsel for the appellant that appreciation of evidence done by the Trial Court is perverse and finding of conviction recorded by the trial Court therefore are not sustainable in law.