WAMAN LAXMAN MIRKA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard rival arguments on this criminal Appeal preferred by the AppellantAccused challenging the Judgment and order of conviction dated 10 th May, 2005, passed by III Additional Sessions Judge, Thane in Sessions Case No.244 of 2004.

(2.) By the impugned Judgment and order, the AppellantAccused was convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) and was sentenced to suffer imprisonment for life and to pay fine of Rs.2,000/ in default to suffer further R.I. for thirty days.

(3.) The case of the prosecution, in nutshell, is as under : The AppellantAccused and his wife victim Barkabai were residing at village Kambagaon, Taluka Bhiwandi, District Thane. They were residing in a hut like structure having two rooms. Both were addicted to consume liquor and there were frequent quarrels between them on various counts. At times they used to go to the village Police Patil one Arun Gaikar P.W.1 for consultation etc. The incident occurred on 27 th April, 2004. That time the Appellant Accused came to P.W.1 Arun Gaikar and asked him to come to his house. That time the AppellantAccused was drunk and he had consumed liquor. P.W.1 enquired with him as to what was the matter. However, the AppellantAccused answered that when he would reach home, he will come to know. Accordingly, both went to the house of AppellantAccused. There inside the house P.W.1 saw the wife of the Appellant lying on the ground and her body was covered by some cloth. Apparently, said Barkabai, wife of the AppellantAccused was not alive. P.W.1 Police Patil called the neighbouring lady and with her help he removed the cloth and found that said Barkabai had bleeding injury to her throat and also there were some injuries on her hand and fingers. She was found dead. On this, P.W.1 enquired with the AppellantAccused as to how it had happened On this enquiry, according to case of prosecution, AppellantAccused gave extra judicial confession before P.W.1 stating that in that afternoon he came back home with some articles. At that time, his wife who was also apparently drunk, raised a quarrel with him saying that he should not live in the house and he should live with his one sister by name Indubai Waghe. There were hot exchange of words and in a fit of rage, Appellant Accused took one wooden handle of the axe/wooden log and hit on the head of his wife Barkabai, causing severely bleeding injury and apparently causing in her death. On this revelation from the AppellantAccused, P.W.1 took him to the police station where his complaint was taken down by police officer Sudhakar Jadhav P.W.3. Offence was registered against the AppellantAccused under Section 302 of the Indian Penal Code. On visiting the scene of offence, spot panchanama was drawn. The AppellantAccused was put under arrest on the same day afternoon. His blood stained clothes were taken charge of. On the same day, AppellantAccused made a voluntary statement to produce the wooden log of the axe. It was then recovered from the house of the AppellantAccused under panchanama. During investigation, dead body of the victim was sent for postmortem and postmortem report was obtained. Seized articles were sent for C.A. and C.A. report was obtained. On completion of investigation, chargesheet was filed. The matter was committed to the Court of Sessions and it ended in conviction vide Judgment and order which is impugned in the present Appeal. 3 At the threshold, it must be mentioned that the learned Advocate for the AppellantAccused had virtually accepted the case of the prosecution in as much as the presence of the Appellant Accused on the spot and finding of dead body of his wife. Admittedly, it is a case of custodial death and, there is no probable explanation coming from the AppellantAccused as to how she has died. In fact, the homicidal death of the victim has been admitted by the AppellantAccused and only point raised before us is whether the facts and circumstances of the case would attract punishment under Section 302 of the Indian Penal Code or whether the said case can be considered as punishable under Section 304 PartII of Indian Penal Code.