P.V. Hardas, J. - (1.) THE appellant, who stands convicted for offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 10007 -, in default of which to undergo further RI for six months, by the 7th Ad -hoc Additional Sessions Judge, Sewree, Mumbai, by judgment dated 13/04/2007, in Sessions Case No. 220 of 2006, by this appeal questions the correctness of his conviction and sentence. Facts, as are necessary for the decision of this appeal, may briefly be stated thus: - P.W. 1 - - P.S.I. Shankar Pagare, who was attached to Nehrunagar Police Station and was on duty on 30/12/2005, received a message from the Control Room at about 4 a.m. informing him that one lady was found lying in the open ground in the shrubs in front of the Tilaknagar Terminus. On receipt of the said information, P.W. 1 - P.S.I. Pagare informed PI Choudhary and thereafter, along with other police staff, went to the scene of the incident and reached there at about 5 a.m. He noticed the dead body of a lady lying at the footpath in front of the Tilaknagar Terminus. He also noticed dupatta tied around the neck of that lady. P.W. 1 - P.S.I. Pagare, thereafter, informed the Nehrunagar Mobile Van No. 1 and shifted the lady to the Rajawadi Hospital, Ghatkopar. The Medical Officer of the Rajawadi Hospital examined the said lady and declared that she was dead. P.W. 1 - P.S.I. Pagare then obtained ADR No. 176 of 2005 from the Nehrunagar Police Station and in the presence of the panchas, drew the inquest panchanama of the dead body at Exh. 13. He thereafter proceeded to the scene of the incident and in the presence of the panch witnesses, drew the scene of the incident panchanama at Exh. 14. One pair of slipper and sample of mud were obtained and seized. A photographer was called, who took the photographs of the scene of the incident. He returned back to the police station and the ornaments of the deceased lady were produced by Police Constable, which were seized under seizure memo at Exh. 15. P.W. 1 - P.S.I. Pagare, thereafter, lodged his complaint at Exh. 18, on the basis of which offence, vide Crime No. 365 of 2005, was registered under Section 302 of the I.P.C. P.W. 12 - PI Choudhary, who was also attached to the Nehrunagar Police Station, was informed by P.W. 1 - P.S.I. Pagare about receipt of the information about the dead body lying in front of the Tilaknagar Terminus. P.W. 12 - PI Choudhary accompanied P.W. 1 - P.S.I. Pagare and the staff to the scene of the incident. He, thereafter, accompanied P.W. 1 - P.S.I. Pagare to the hospital as well as to the scene of the incident. On 31/12/2005 at about 7 p.m. P.W. 12 - PI Choudhary received a telephone call from the appellant, who informed him that he was a P.S.I. and was on bandobast duty in Matunga Police Station and that he wanted to lodge a missing complaint regarding his wife Alka. P.W. 12 - PI Choudhary asked the appellant to come to the police station. The appellant had also disclosed the address of his father -in -law. P.W. 12 - PI Choudhary, accordingly, telephoned P.W. 2 - Anant Malgaonkar, father -in -law of the appellant and called him to the police station and had shown the clothes of the deceased. P.W. 2 - Anant Malgaonkar and P.W. 3 - Smt. Ashalata, mother -in -law of the appellant were then referred to the Rajawadi Hospital and were asked to identify the dead body. Statements of P.W. 2 - Anant and P.W. 3 - Smt. Ashalata were recorded. The appellant was arrested at about 11 p.m. on 31/12/2005 and during custodial interrogation, the appellant expressed his willingness to point out the scene of the offence. Accordingly, a memorandum was recorded at Exh. 25. The appellant led the police and the panchas to Tilaknagar Terminus and led them to the scene of the incident. A panchanama was accordingly drawn at Exh. 15. The appellant made further statement about his willingness to point out the place where his clothes had been concealed. Accordingly, the appellant produced one pant and one shirt from his house, which were seized under the panchanama at Exh. 15. Further investigation was then entrusted to P.W. 13 - PI Suryawanshi. P.W. 13 - PI Udaykumar Suryawanshi, who was also attached to the Nehrunagar Police Station, was entrusted with the investigation of Crime No. 365 of 2005. On 2/1/2006, he forwarded the viscera to the Chemical Analyzer under requisition at Exh. 39. On 22/1/2006, statement of Jayshree Asulkar was recorded under Section 164 of Cr.P.C. Further to the completion of investigation, a charge -sheet against the appellant was filed. Postmortem on the dead body of deceased Alka was performed by P.W. 8 - Dr. Prakash Shinde. P.W. 8 - Dr. Prakash Shinde noticed the following external injuries: (i) Horizontal ligature marks completely encircling the neck, anteriorly 7 c.m. below the chin over right lateral aspect of the neck. It is 4 c.m. below the mostoid. It is 4 c.m. below the left mostoid. It runs completely over the posterior aspect of the neck (from neck of neck to downwards). Length of the ligature mark was 36 c.m. and width is 5 c.m. Reddish and brownish in colour. On dissection - blood infiltration observed in the skin underneath the ligature mark. Browsing seen in the structure underneath the ligature mark. Hyoid was fractured. All the injuries mentioned above were ante -mortem . On internal examination, the following internal injuries were noticed: - (i) Larynx trachea and bronchi -congested. Browsing underneath the ligature mark. Right lung and left lung - congested. (ii) Right side of the heart was full with blood and blood clots. Left side empty. (iii) Injured pharynx congested. Desophagua - - congested underneath the ligature mark. Stomach and its contents - 100 cc of pasty food. P.W. 8 - Dr. Shinde, therefore, opined that death was asphyxial death due to constriction of neck. The postmortem report is at Exh. 29.
(2.) ON committal of the case to court of Sessions, the trial court vide Exh. 5 framed charge against the appellant for offence punishable under Section 302 of the IPC. The appellant denied his guilt and claimed to be tried. The prosecution, in support of its case, examined 13 witnesses. The defence of the appellant was of denial. The trial court upon appreciation of the evidence, convicted and sentenced the appellant as afore -stated.
(3.) IN order to effectively deal with the submissions advanced by Mrs. Anita Agarwal, the learned counsel for the appellant and Mrs. U.V. Kejriwal, the learned APP for the State, it would be useful to refer to the evidence of the prosecution witnesses. Prosecution has examined P.W. 2 - Anant Malgaonkar, father of deceased Alka and father -in -law of the appellant, who deposes that deceased Alka was married to the appellant about 12 to 13 years prior to the incident. Alka used to complain that the appellant was ill -treating her and was, at times, assaulting her, suspecting the character of Alka. According to P.W. 2 - Anant, on 30/12/2005, the appellant, along with his children and nephew by name Kunal, had come to the house of P.W. 2 - Anant at about 8 p.m. At about 9 to 9.30 p.m. Alka had also come to the house of P.W. 2 - Anant. Thereafter, all of them had taken their dinner and at about 10 p.m. the appellant, deceased Alka and nephew of the appellant by name Kunal, left the house of P.W. 2 - Alka. On the next day i.e. on 31/12/2005, P.W. 2 -Anant received a telephone from the police station and was called to the police station. Anant, therefore, along with his wife P.W. 3 - Smt. Ashalata, went to the Nehrunagar Police Station, where he identified the photograph of his daughter. Clothes of Alka had been shown to P.W. 2 - Anant, which he had identified. The police thereafter recorded the complaint and P.W. 2 - - Anant was also asked to identify the dead body of deceased Alka.;