STATE OF MAHARASHTRA Vs. JANGU KISHTU KOTNAKE

JUDGEMENT

(1.) Both these appeals are being disposed of by common judgment since both these appeals arise out of judgment and order dated 12th December, 2003 passed by 1st Adhoc Additional Sessions Judge, Chandrapur in Sessions Case No.27/2003. By the said judgment and order, the appellant in Criminal Appeal No.255/2004 (hereinafter referred to the accused) has been convicted for offence punishable under Section 302 of the Indian Penal Code for committing murder of Smt. Chandrakala Rupchand Pawar and her daughter Puja Rupchand Pawar. Criminal Appeal No.255/2004 has been filed by the accused challenging his conviction and sentence whereas Criminal Appeal No.110/ 2004 has been filed by the State challenging inadequacy of the sentence imposed on the accused. According to the prosecution, learned Additional Sessions Judge ought to have imposed death sentence on the accused for double murder.

(2.) Briefly, the prosecution case is as under: The informant Rupchand Pawar, resident of Titvi, had been to mouza Naiknagar to meet his parents on 13.12.2002 at about 4.30 p. m. He reached at Patan bus stand so as to board bus leaving to village Titvi. At that time Dada Parchake (PW 4) a teacher from his village and two other villagers namely Lingu Uikey (PW 3) and Manku Kulsunge met him and informed him that his wife and daughter were assaulted by an axe by the accused and that they were in serious condition. The informant immediately went to the Police Station, Patan and lodged report against the accused, pursuant to which Crime No.8/2002 under Section 307 of the Indian Penal Code was registered against the accused. Pursuant to the F.I.R., investigation was taken up and various steps in the course of investigation such as spot panchanama, inquest panchanama, sending body for postmortem, recording of statements of witnesses, sending seized articles for chemical analysis etc., were undertaken and after completion of the investigation, the charge sheet for offence punishable under Section 302 of the Indian Penal Code was filed against the accused. The prosecution alleged that the accused had committed murder of Chandrakala and her daughter Puja by assaulting them with an axe. Since the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions. In Sessions Case No.27/ 2003 before the Additional Sessions Judge, Chandrapur, the prosecution examined ten witnesses and produced several documents to prove the case against the accused. Defence of the accused was of total denial. In his statement under Section 313 of the Code of Criminal Procedure he took defence of alibi. The accused did not lead any defence evidence. The learned Additional Sessions Judge, upon appreciation of oral evidence led by the prosecution, held the accused guilty of committing murder of Chandrakala and Puja and consequently convicted him for the offence punishable under Section 302 of the Indian Penal Code and sentence him to life imprisonment and pay fine of Rs. 1000/ and in default to undergo R.I. for one month.

(3.) Mr. Mardikar, learned counsel for the appellant, at the outset, submitted that the accused has not been properly defended in the course of the trial, as is evident from the nature of cross examination of the important witnesses examined by the prosecution. He further submitted that Sangubai Aade (PW 6) is not an eye witness to the incident of assault on Chandrakala by the accused and her evidence regarding assault by the accused on Puja does not deserve any credence. He further submitted that the prosecution has not been able to establish motive and, therefore, the accused is liable to be acquitted. He further submitted that the record discloses that the statement of Sangubai Aade (PW 6) was recorded under Section 164 of the Code of Criminal Procedure and, therefore, her testimony must be accepted with caution. According to Mr. Mardikar, the prosecution evidence is not sufficient to prove complicity of the accused in the commission of offence, for which he has been convicted.