STATE OF MAHARASHTRA Vs. TULSIRAM

JUDGEMENT

(1.) Confirmation case No.1/2009 and Criminal Appeal No. 87/2009 are being disposed of by common judgment since they arise out of judgment and order dated 6th January 2009 passed by 1st Ad hoc Additional Sessions Judge, Gadchiroli in Sessions case No. 49/2008 convicting the appellant-accused for the offences punishable under Sections 302 and 307 of the Indian Penal Code. By the impugned judgment, the accused has been convicted for offence punishable under Section 302 of the Indian Penal Code and sentenced to death and to pay fine of Rs. 500. The accused has been further convicted to suffer imprisonment for 10 years and to pay fine of Rs. 500 for offence punishable under Section 307 of the Indian Penal Code. The accused has been convicted for committing murder of deceased Ammubai Vitthal Gawade and attempting to murder her daughter Sunita on 3.2.2008.

(2.) Briefly, the prosecution case is as under: On 3.2.2008 Vitthal the husband of deceased Ammubai, who was residing with his family members in his village Gawhal Heti in Gadchiroli District had been to village Kuthegaon. His sons Madhukar, Sudhakar and Divakar had been to the dinner arranged after Kabaddi tournament held in the village. Deceased and her daughter Sunita were sleeping in the courtyard of their house on a cot. At about 9.00 p.m. the deceased raised alarm and Sunita saw the accused standing near her cot armed with axe. The accused also assaulted her and her mother by means of axe on the head. Sunita raised alarm: Thereafter the villagers rushed to the spot and took both the injured to General hospital at Gadchiroli. At the hospital, the statement of injured Sunita was recorded by PSI Kavthare. Ammubai had succumbed to her injuries before reaching the hospital. On the basis of the statement of Sunita, offence was registered against the accused vide F.I.R. 18/2008. The dead body of Ammubai was referred for autopsy. Further investigation was carried out by PSI Ramaghare. Spot panchanama and seizure panchanama were conducted. Thereafter the postmortem was also conducted on the dead body of deceased Ammubai. Since the accused had run away from the spot, wireless message was issued to all the police stations. P.S.I. Dede attached to police station. Jarawandi noticed accused moving in suspicious circumstances on 5.2.2008 at about 1.30 p.m. Therefore, he was arrested and axe stained with blood which was with the accused and his clothes which were also stained with blood were seized. On 6.2.2008 the accused was being brought from police station Jarawandi to police station Gadchiroli. On the way the accused was taken to Sub Police Station Pendhari as per the practice followed by the police to ensure safe passage since the entire Gadchiroli district is naxal affected. At police sub-station, Pendhari where PSI Ramaghare took custody of the accused along with seized clothes and axe. Panchanama was accordingly prepared. On 8.2.2008 an axe was referred to medical examination for his opinion. During the investigation, injury certificate of injured along with X-ray plates came to be seized. Thereafter the statements of various witnesses were recorded by the Investigating Officer and after completion of the investigation, charge-sheet was filed in the Court of J.M.F.C. Gadchiroli. Since the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, Gadchiroli. In Sessions case No. 49/ 2008 before the 1st Ad hoc Additional Sessions Judge, Gadchiroli, the prosecution examined 15 witnesses and produced several documents to prove the case against the accused. The accused pleaded not guilty to the charge. His defence was of total denial and false implication at the instance of Malabai Potavi (PW1) on account of refusal by Ammubai to solemnize the marriage of her daughter with him. The learned Additional Sessions Judge accepted the prosecution version and by impugned judgment and order convicted and sentenced the accused as stated above.

(3.) Mr. Daga, learned counsel for the appellant submitted that the evidence brought on record by the prosecution does not prove that the accused committed murder of deceased Ammubai and that he attempted to commit murder of Sunita. He further submitted that the evidence of Sunita does not deserve acceptance because she has not come up with entire truth as is evident from her cross-examination. He further submitted that having regard to the medical evidence, it cannot be said that the assault of deceased Ammubai was barbaric or that the murder was gruesome. According to Mr. Daga, offence of murder even if it is held to be proved, it cannot be said that this is a "rarest of rare" case deserving imposition of death sentence and, therefore, death sentence imposed on the accused deserved to be set aside. According to Mr. Daga, the prosecution version that the accused was arrested with blood stained clothes and blood stained axe on 5.2.2008 is improbable since it is difficult to accept that the accused after committing murder on the night on 3.2.2008 would move with blood stained clothes and with blood stained axe on 5.2.2008. According to Mr. Daga, learned trial Judge has not taken into consideration the mitigating circumstances while considering the imposition of death sentence on the accused for the offence of murder in terms of judgment of the Apex Court in the case of Machhi Singh and others v. State of Punjab, AIR 1983 SC 957. According to Mr. Daga, the following are the mitigating circumstances: