STATE OF MAHARASHTRA Vs. KAMALAKAR GHANSHYAM KHADE

JUDGEMENT

(1.) The appellant facing death penalty has challenged in appeal the order of his conviction in Sessions Case No.209 of 1994 recorded by the Sessions Judge, Sangli for the offence of murder of his sister Yogita, wife of Rajendra Khade and her one and half year old son Yogesh while the death sentence awarded to him is placed before this Court for confirmation.

(2.) HE was charged for the offence of murder under Section 302 read with Section 34 of IPC along with his younger brother Vishal who came to be acquitted. The said murder was committed on 25th April 1994 at about 5.30 p.m. on the road in front of Samaj Mandir in village Kavalapur, Dist. Sangli in the following circumstances.

(3.) AS the couple's son Yogesh was not keeping good health, Yogita had taken a vow to attend the fair at Siddheshwar temple in her native village Kavalapur which was to take place from 25th April 1994 to 1st May 1994. Both had therefore planned to attend the said fair but as Rajendra could not get the salary from his contractor-employer during that week it was decided to send Yogita only along with her child to attend the fair at Kavalapur. He, therefore, wrote a letter (Exh.78) to his own father PW 9 Dhanraj requesting him to receive Yogita at ST stand at Sangli on 24th April 1994 where she was to arrive by Panji-Miraj ST bus which reaches there in the afternoon. As Rajendra could not arrange for money, Yogita could not travel on 24th April 1994 as scheduled. Yogita, therefore, took Panji-Miraj ST bus on 25th April 1994. During her journey she was also carrying with her transistor and jackfruit and their bag of clothes. It is further case of the prosecution that ST bus arrived at Sangli at 4.30 p.m. on 25th April 1994 when she was received by her father-in-law Dhanraj Khade (PW 9). Thereafter she took the city bus from Sangli to Kavalapur. They alighted from the city bus in front of the Siddheshwar temple. After getting down from the bus they were proceeding towards the house of Dhanraj Khade (PW 9) on foot. His house is situated behind Samaj Mandir at Kavalapur. Yogita was carrying her son Yogesh who was in her arms and PW 9 was holding bag containing their clothes, transistor and jackfruit. When they were on their way, the original accused No.2 Vishal, the younger brother of the appellant happened to see Yogita. He went ahead on his bicycle. Few minutes thereafter when the deceased was on her way home, the appellant came running towards them holding a knife in his hand. The appellant gave six to seven knife blows to Yogita on her chest and stomach. He also gave a couple of knife blows to Yogesh. As a result of these assaults, both of them fell on the ground. It is the case of PW 9 that when he went towards Yogita to save her, accused no.2 Vishal knocked him down and therefore, out of fear he went towards Samaj Mandir and stood there. After initial assault appellant put his knife in his pant pocket and went to his house and came back after some time with a rope and scythe. He tied the rope around the neck of Yogita and held her hair by his left hand and started cutting her throat by means of scythe by his right hand. Because of the fair at Siddheshwar temple Police Bandobast was arranged and number of policemen were posted at the venue. There were also volunteers of the fair committee wearing badges. On seeing the initial assault on Yogita by appellant the volunteers went running near Siddheshwar Temple where police jeep was standing and informed the police about the quarrel between the appellant Kamalakar and his sister Yogita. On hearing this Police Head Constable, PW 7 Shrikant Patil with Buckle No.582 and Police Constable Khot rushed towards the place of offence. When they reached at the place of offence, which was near the house of the retired Head Constable Bhale, they saw one woman lying at a distance of 20 feet and one child lying near the legs of that woman. They saw the appellant having put his feet on the chest of the woman and holding her head by his left hand and cutting her neck with a scythe. Seeing this PW 7 Head Constable Shrikant Patil caught hold of the collar of the shirt of the appellant from back side and snatched scythe from his hand. Yogita and Yogesh were lying dead on the road. PW 7 asked his Police Constable Khot to wait there near the dead bodies and himself took the appellant near the police jeep in front of Gram Panchayat office. On the way he met PW 14 Head Constable Ikbal G. Korbu attached to Budhgaon Police outpost who was coming towards that side. PW 7 narrated the incident to the said witness. They took search of the appellant and took out knife from his pant pocket. The witness also asked his name and the accused told him his name as Kamalakar Ghanshyam Khade. PW 7 asked P.H.C. Korbu to give message at the Police Station. PW 14 Korbu came at the scene of offence and after seeing the dead bodies gave information on telephone at Sangli Rural Police Station around 5.50 a.m. about the offence, which was received by Police Head Constable Shivaji Arjune PW 8 and was entered at serial No.15 in the station diary Exh.73. PW 8 then gave message on telephone to Circle Police Inspector Jadhav (PW 15) at Miraj. The Circle Inspector Jadhav came at the Gram Panchayat office and recorded the report of Head Constable PW 7 around 6.30 p.m. That report is Exh.62. The said report was taken by the police station and crime was registered under C.R. No.29/94 at around 7.45 p.m. at entry No.16 in the station diary. The inquest Panchanama (Exh.45 and 46) were drawn by the Circle Inspector in the presence of panchas between 7 and 9 p.m. Thereafter the dead bodies were taken to the Civil Hospital, Sangli where post-mortem was performed on the dead bodies by Dr.Godbole PW 11 around mid night. The spot panchanama was drawn (Exh.37). The weapons seized by PW 7 from the appellant were produced under panchanama Exh.35. Clothes from the person of the accused were, seized under panchanama (Exh.40). One more shirt of greenish colour was also seized under Panchanama (Exh.41) from the house of the accused on the following morning. The original accused No.2 had surrendered on 21st April 1994. The statements of various witnesses were recorded including PW 9 whose statement was recorded at about 4 p.m. on 26th April 1994. After completion of the investigation charge-sheet was filed and the case was committed to the Sessions Court. The charge was framed against the original accused under Section 302 read with 349 of lPC for the murder of the victims Yogita and her son Yogesh. Both the accused pleaded not guilty. Their defence was of total denial.