Revati Mohite Dere, J. -
(1.) This appeal is directed against the judgment and order dated 7th June, 2011 passed by the learned Additional Sessions Judge, Gadhinglaj, Kolhapur, in Sessions Case No. 13 of 2010, convicting and sentencing the appellant as under :
for the offence punishable under Section 302 of the Indian Penal Code ('IPC'), to suffer RI for life and to pay fine of Rs. 2,000/-, in default, to suffer RI for 1 year;
for the offence punishable under Section 201 r/w 511 of the IPC, to suffer RI for 3 years and to pay fine of Rs. 1,000/-, in default, to suffer SI for 1 year;
The said sentences were directed to run concurrently.
(2.) The prosecution case in brief is as under :
According to the complainant Kasim Nadaf (PW 3), the owner of a Mahindra Pick-up van, on 3rd March, 2010, when he was waiting at the stand for his vehicle to be hired, the appellant came up to him and stated that he wanted to carry domestic articles from Waghrali to Sawantwadi. The fair was settled for Rs. 1,600/-. Kasim went with his vehicle to Village Waghrali and the appellant loaded his articles in the van. The vehicle then proceeded to Sawantwadi via Ajra. Before reaching Sawantwadi, the vehicle stopped at a dhaba and the appellant called a person from his phone. The appellant thereafter, disclosed to Kasim that the person with whom he wanted to work has declined to engage him and hence, he wanted to return to Gadhinglaj. On being asked for return fare, the appellant agreed to pay an additional amount of Rs. 500/-. While crossing the ghat section at Amboli, the appellant asked Kasim to stop the vehicle near a valley, pursuant to which, the vehicle was stopped. The appellant got down from the said vehicle and went to the rear side. The appellant called Kasim to the rear side of the vehicle and disclosed that he wanted to throw one gunny bag in the valley. Kasim inquired as to what was there in the gunny bag, however, the appellant was reluctant to disclose the same. When Kasim insisted on disclosing the contents of the gunny bag, the appellant stated that his wife's dead body was in the gunny bag. On further inquiry, the appellant disclosed that he had throttled his wife as she was not of good character. Kasim lured the appellant by saying that the bag could be thrown elsewhere and proceeded further. On the way, near Village Madalge, Kasim's friend Rajendra Mahadik's (PW 26) vehicle crossed his vehicle. Rajendra was on his way to Ajra, to deliver sugarcane. Rajendra called Kasim and asked where he was going. Kasim asked Rajendra to come back and meet him, pursuant to which, Rajendra turned back. When Rajendra came near Kasim's vehicle, Kasim narrated the incident to him and asked him to inform the same to his friends at Gadhinglaj. Thereafter, Kasim proceeded to Gadhinglaj. After reaching Gadhinglaj, as per the information received, his friends encircled the vehicle and took the vehicle to the Gadhinglaj Police Station. At the Gadhinglaj Police Station, Kasim narrated the entire incident to the Police Station Officer. The Police Station Officer asked Kasim to take the vehicle to Nesari Police Station, as the place of incident i.e. Waghrali, fell within the limits of Nesari Police Station. A constable was provided to escort them to Nesari Police Station. On reaching Nesari Police Station, Kasim narrated the incident to the PSO on duty, pursuant to which, an FIR was lodged which is at Exhibit 11. Photographs of the vehicle were taken and the gunny bag was removed from the vehicle. On opening the said gunny bag, two pillows and a bedsheet were found and below that, the dead body of a women was found. Inquest panchnama was prepared. The appellant identified the body as being that of his wife Gulabi and thereafter, the body was sent for postmortem examination. PI Shri Yashwant Dhage (PW 28) prepared the panchnama of the scene of offence, recorded the statements of the witnesses and arrested the appellant. Statements of Kasim Nadaf (PW 3), Rajendra Mahadik (PW 26), Maruti Chougule (PW 27), Dinkar Mang and Shakil Nadaf were recorded under Section 164 of the Code of Criminal Procedure. After completion of investigation, charge-sheet was filed in the Court of the learned Judicial Magistrate First Class. Since the offence was sessions triable, the case was committed to the Court of Sessions.
The case of the appellant was of denial and false implication. The prosecution in support of its case, examined 28 witnesses and the appellant examined one defence witness.
As far as PW 1-Gunvanta Patil; PW 2-Prabhu Desai, PW 12- Gangaram Kambale; PW 14-Suresh Patil; PW 16-Janabai Patil; and PW 17- Baburao Patil, are concerned, the said witnesses were declared hostile as they did not support the prosecution case. The said witnesses are residents of Village Waghrali, where the appellant was residing with Gulabi. PW 13- Sadashiv Pradhan, the owner of the tenement, where the appellant and the deceased were residing; PW 6-Munaf Shinga, panch to the seizure of clothes of the deceased; PW 15-Ganpati Undalekar, panch before whom a disclosure was made by the appellant, with regard to the route taken and PW 24-Prema Chavan, daughter of the appellant were also declared hostile. As far as the other witnesses are concerned, PW 3-Kasim Nadaf is the complainant, to whom an extra judicial confession was made by the appellant; PW 4-Gansi Mitka, is the police head constable, who accompanied the complainant and appellant to the Nesari Police Station from Gadhinglaj Police Station; PW 5-Prakash Desai, is the police head constable who, at the relevant time, was on duty at the Gadhinglaj Police Station; PW 7-Rasul Mujawar, is the panch to the seizure of clothes of the appellant; PW8-Chandrashekhar Arbhavi, is the panch to the inquest panchnama and opening of the gunny bag; PW 9-Uttam Bhuimber, is the panch to the seizure of bangles and hairpin from the house of the appellant; PW 11-Parvati Kharabe, is the panch to the inquest panchanama; PW 18- Dr. Avinash Nalavade, is the Medical Officer, who conducted the postmortem; PW 19-Jaywant Gurav, is the constable who recorded the FIR; PW 20-Birappa Kochargi, is the constable who seized the articles after the postmortem was performed; PW 21-Dharmendra Bagade, is the carrier of the articles to the CA; PW 22-Arun Shintre, is the interpreter, who interpreted the evidence of PW 23, as she was not conversant with the language; PW 23 is Zomibai Jadhav, the mother of deceased Gulabi; PW 25-Asha Rathod is the daughter of the deceased; PW 26-Rajendra Mahadik; PW 27-Maruti Chougule, are the friends of the complainant, who were informed of the incident and PW 28-Yashwant Dhage is the Investigating Officer. The appellant examined DW 1-Abdul Sattar Perampalli, the Magistrate who recorded the statements of the complainant PW 3-Kasim Nadaf and PW 26- Rajendra Mahadik, under Section 164 of the Code of Criminal Procedure.
(3.) Mr. Ingawale, learned Counsel for the appellant assailed the judgment and order on several grounds. He submitted that the prosecution has not proved its case beyond reasonable doubt. He submitted that most of the material witnesses were declared hostile and in the absence of any material evidence qua the appellant, it was unsafe to convict the appellant and as such, benefit of doubt be given to him. He submitted that the prosecution case is riddled with infirmities, inasmuch as, no reason/motive has come on record for the appellant to murder Gulabi; that it was highly improbable that the appellant would lift the gunny bag and load it in the complainant's vehicle all by himself; and that if the appellant wanted to dispose of the dead body, he would not have loaded all the utensils/domestic articles in the said vehicle. He submitted that non-disclosure by the complainant-Kasim, immediately to the Police Stations, which were on the way before reaching Gadhinglaj, on learning that there was a dead body in a gunny bag, makes the prosecution case doubtful. He further submitted that there is no evidence to show that the appellant was living with Gulabi at Waghrali, as none of the witnesses i.e. neighbours who were examined, have supported the prosecution case. He submitted that in view of the improbabilities and inconsistencies in the evidence as well as in the medical evidence, the appellant be given the benefit of doubt and be acquitted.;