KAMALAKAR GANESH DESHPANDE Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, the appellant/convicted accused is challenging the judgment and order dated 27 th September 2011 passed by the learned Additional Sessions Judge, Jaisingpur, District Kolhapur, in Sessions Case No.19 of 2008, by which he is convicted of offences punishable under Sections 328, 304 and 379 of the Indian Penal Code. For offences punishable under Sections 328 and 304 of the Indian Penal Code, on each count, the appellant/convicted accused is sentenced to suffer rigorous imprisonment for 10 years apart from direction to pay fine of Rs.3,000/- and in default, to undergo rigorous imprisonment for 6 months. For the offence punishable under Section 379 of the Indian Penal Code, the appellant/convicted accused is sentenced to suffer rigorous imprisonment for 3 years.

(2.) Facts, in brief, leading to the prosecution and resultant conviction of the appellant/convicted accused, can be summarized thus :

(3.) I have heard the learned advocate appointed to represent the appellant/convicted accused at the costs of the State. She vehemently argued that shouting of PW3 Dattatraya Deshpande, after consuming pedas given by the appellant/ convicted accused, was not heard by any of the inmates of the adjoining rooms. The prosecution has not placed on record the register disclosing names of occupants of the adjoining rooms at Math at Mhadba Patil Maharaj Trust. Evidence regarding identification of the appellant/convicted accused, coming from mouth of PW22 Prashant Dhage, Executive Magistrate, is not at all reliable as no dummies were wearing caps. This is reflected from evidence of PW26 Babgonda Patil - panch witness. It is further argued that evidence of PW20 Dr.Sitadevi Mirajkar shows that Shubhangi died because of myocardial infarction and her death was not caused due to consumption of poison. Therefore, the Charge for the offence punishable under Section 304 of the Indian Penal Code is not proved. The learned advocate further argued that PW21 Shyam Dedgaonkar, jeweler, has candidly accepted the fact that he had given new gold ornaments to police when the police came along with the appellant/convicted accused to his shop. Therefore, it cannot be said that there is evidence of recovery at the instance of the appellant/convicted accused. So far as the recovery of mobile phone is concerned, there is no proof of seizure of mobile phone and evidence of PW9 Sangita Deshpande and PW10 Dharmendra Deshpande shows that IMEI number of this mobile phone was not recorded by the Investigating Officer. Hence, according to the learned advocate for the appellant/ convicted accused, he is entitled for acquittal.