AAPPA KAKHRYA PAWARA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this Criminal Appeal, under section 374 (2) of Code of criminal Procedure (2 of 1974), the appellant-Appa Kakrya Pawara seeks to challenge the validity, legality and propriety of the judgment and order passed by the learned 4th Ad hoc Additional Sessions Judge, dhule, in Sessions Case No. 16/2005 dated 18. 4. 2006, thereby convicting the appellant for the offence punishable under section 302 of Indian Penal Code and sentencing him to suffer imprisonment for life and imposing a fine of rs. 2,000/-; in default of payment of fine, imposing further rigorous imprisonment for a period of six months.

(2.) BRIEFLY stated, the prosecution case is as under: appellant Appa Kakrya Pawara is resident of village Chakadu, Taluka Shirpur, district Dhule. He married with Surmibai 11 years prior to 18. 12. 2004 (the date of incident)at Shirpur. Surmibai is the daughter of Phadya as well as the sister of bahadrya Phadya Pawara and Sahadarya phadya Pawara, resident of village manjaripada, Taluka Shirpur, District dhule. Out of the said wedlock, the couple was blessed with five children-three daughters and two sons, namely, Ganga, Jamana, suklal, Mangalu and Bayadi. It is the case of the prosecution that the appellant (hereinafter referred to as the accused) was addicted to liquor and under the influence of liquor, he used to abuse, assault his wife Surmibai and also used to doubt her chastity. It is the prosecution case that as surmibai could not tolerate the behaviour and conduct of the accused, she left the matrimonial house with five children and started residing with her parents and brothers at Manjaripada, which is about 10 kms from the village Chakadu in Shirpur Taluka, since about ten to twelve months prior to the date of the incident. It is further alleged that, during the said period, the accused twice visited Manjaripada where Surmibai was residing and requested her to join him. However, this request was not accepted by surmibai as the accused did not accede to her request to stop the habit of drinking liquor. It is further prosecution case that, in the meanwhile, Surmibai went to village chakadu and left her five children at the house of the accused and, thus, on the date of incident, the children were not staying with deceased Surmibai at village manjaripada. It is in these circumstances, on 18. 12. 2004, at about 6. 30 a. m. (early hours of the morning) when Surmibai was present in the house of her parents and brothers, the accused came there and all of a sudden assaulted her with knife due to which she sustained cut incised wound 4 cm x 2 cm x deep over just lateral to left scapular region and piercing through 3rd and 4th rib from posterior. Within short time, surmibai succumbed to the injuries in the house. It is the case of the prosecution that, Sahadrya, brother of deceased Surmibai, Phadya, her father, Keshariabai, wife of another brother bahadrya, were present in the house. As the Surmibai cried for help, her brother sahadrya came in the kitchen room where she was assaulted by the accused and he tried to catch hold the accused but the accused was trying to run away from the spot. Thereafter accused dropped the knife on the floor. In the meanwhile, even Phadya, father of Surmibai came in the kitchen room from the first room and he found that the accused had assaulted Surmibai with knife and father held Surmibai in both his hands. Bahadarya, the other brother, had just left the house and was away at 200 fts. distance from the said house. Due to hue and cry made by his wife Keshariyabai, he rushed to the house and found that surmibai was assaulted and she had sustained bleeding injury and she was held in his hands by his father whereas, his brother sahadrya had caught hold the accused, who had dropped the knife on the floor. It is alleged by the prosecution that Surmibai told bahadrya that she was assaulted by her husband with knife. Surmibai died within few minutes as she had sustained serious injury as stated above.

(3.) IT is the case of the prosecution that bahadrya immediately went out of the house and went to the house of Police Patil sangram. Police Patil Sangram also visited the spot of the incident. Thereafter, bahadarya and Police Patil Sangram went to Shirpur and lodged complaint at Shirpur police Station (Exh. 15 ). The said complaint was reduced in writing by one K. C. Patil, police Sub-Inspector, who was pleased to register the offence at Crime No. 280/2004 under section 302 of Indian Penal Code and handed over the investigation to Vasant madhukar More, A. P. I. After verification of the complaint at exh. 15 A. P. I. Vasant More went to village manjaripada, visited the place of occurrence i. e. the house of the complainant Bahadrya, prepared the inquest panchnama of surmibai at Exh. 19, drew the panchnama of the spot of the incident in presence of panch witnesses, seized the weapon of the offence, namely, knife (Article No. 6 - hereinafter referred to as Suri as is referred by the witnesses), which was stained with blood. He also seized soil mixed with blood and without blood from the spot (Article Nos. 4 and 5 ). Thereafter, he sent the dead body of Surmibai with Constable Chavan to cottage Hospital, Shirpur, for autopsy. Then, he recorded statement of Sahadrya, an eyewitness to the incident, on 18. 12. 2004 itself. He brought the accused, who was detained by the people, to the Police Station and arrested him under arrest panchnama. The arrest panchnama at Exh. 18 was also prepared. He also seized the clothes on the person of the accused - brown coloured shirt, T-shirt and pant (Article Nos. 8, 9 and 10 ). One cotton bag (Article 7) used for keeping the knife was also seized. After postmortem, Constable Chavan produced clothes on the person of Surmibai, which were seized by him under seizure panchnama. Then he issued letter to tehsildar for preparation of the map of the spot of the incident vide Ex. 33 and forwarded Muddemal Property to the Chemical Analyser. After receipt of the reports from the Chemical Analyser, the same were produced before the Court and exhibited as exhs. 35, 36 and 37, respectively. On 20. 12. 2004, PSI Dattatraya shamrao Barade received the investigation of the crime in question from API More. He completed the investigation and submitted charge-sheet against the accused in the court of Judicial Magistrate, First Class, shirpur, on 15. 3. 2005. As the offence under section 302 of I. P. C. was exclusively triable by the Court of Sessions, the learned magistrate was pleased to commit the case for trial to the Sessions Court at Dhule. Charge was framed at Exh. 7 to which the accused pleaded not guilty.