A.V.POTDAR,J. - (1.) BY the present criminal appeal, the appellant has questioned the legality and correctness of the judgment and order dated 23.12.2008 passed by the Additional Sessions Judge, Osmanabad in Sessions Case No.8/2008. By the impugned order, the appellant is convicted for an offence punishable u/s 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life and to pay a fine of Rs.2,000/-.
(2.) FACTS, in nutshell, leading to file the present appeal, may be stated thus- a) Deceased Archana, daughter of Parvatibai Tamanna Gaikwad (PW-2) had married with the appellant somewhere in the year 2005. From the said wedlock, a daughter was born to them. Deceased Archana and the appellant were residing in the matrimonial house of Archana at Yedshi. b) In the month of September 2007, deceased was carrying 6 months' pregnancy. Alka (PW-4), married sister of deceased was residing at Parali. On 20.09.2007, PW-2 Parvati had been to Parali and at 11 a.m. deceased had contacted her and requested Parvati to visit Yedshi as she wanted to disclose something to her. In the evening of 20.09.2007, Parvati received message that Archana has expired due to heart attack. Parvati along with Alka came to Yedshi at about 9 p.m. and noticed certain injuries on the person of deceased and hence after cremation, she lodged a report with Osmanabad Rural Police Station. On the basis of the said report, an offence at Crime No.75/2007 was registered for an offence punishable u/s 498A, 302 r/w 34 of the Indian Penal Code, against the appellant, his parents, brother and two sisters. c) It appears that before registration of the said crime, AD No.35/2007 was registered with the same police station in respect of the death of Archana on the report of father of the appellant. PSI Baburao Shinde (PW-8) had carried out investigation in the said AD report. During the inquiry of the said ADR, PW8 Baburao Shinde had visited the spot and had drawn inquest Panchanama (Exhibit-38). On 21.09.2007 he had again visited the spot and had prepared the spot Panchanama (Exhibit-47). d) It appears that during investigation Mrs.Anjum Shaikh (PW-10) arrested the appellant and his parents on 23.09.2007 and remaining accused on 27.09.2007. After PW-11 Sunil Lokhande took over the investigation, he recorded statements of witnesses, collected postmortem notes and forwarded viscera. After completion of investigation charge sheet was filed before CJM, Osmanabad, who in turn committed the trial to the Court of Sessions, Osmanabad. e) It appears that the trial court framed charge against the appellant and others for an offence punishable u/s 498-A, 302 r/w 34 of the Indian Penal Code to which the accused pleaded not guilty and claimed to be tried. f) It appears that the prosecution examined 11 witnesses, they are - Prosecution witness No.1, Dr.Mahesh Kanade, Medical Officer, Osmanabad who had performed autopsy on the dead body of the deceased. Prosecution witness No.3, Dr.Anil Waghmare, Medical Officer, PHC, Yedshi, who had initially examined Archana and had referred her to civil hospital, Osmanabad. PW-2 Parvati, mother of deceased on whose compliant Crime No.75/2007 is registered. PW-4, Alka, sister of the deceased. PW-5 Dashrath Gaikwad, Panch witness to inquest Panchanama carried out on the dead body of the deceased. PW-6 Sanjay Lokhande, and PW-7 Bapu Itkar, Pancha witnesses, who turned hostile. PW8 Baburao Shinde, who had carried out investigation pursuant to the registration of the ADR No.35/2007 recorded by PW-9 Rajendra Patil. PW-10 Mrs.Anjum Shaikh, who had carried out initial investigation till 23.09.2007 and later on handed over to PW-11, who after completion of the investigation had filed charge sheet against the accused. Defense of the accused was of total denial. g) It appears that vide the impugned judgment, the trial court acquitted the appellant and others for an offence punishable u/s 498-A r/w 34 of the Indian Penal Code. The trial court also acquitted the other accused other than the appellant of the offence punishable u/s 302 r/w 34 of the Indian Penal Code, however, convicted the appellant for an offence punishable u/s 302 of the Indian Penal Code. In order to appreciate the submissions of the rival parties, it would be useful to advert to the evidence of material witnesses. Pw-1 Dr.Mahesh Kanande conducted autopsy on the dead body of deceased Archana and had noticed that- "blood stained fluid oozing from both nostrils. Face was pale and whitish. He noticed two nail marks on face. The face was slightly swollen. Drooling of saliva not noted at angle of mouth. Her arms were flexed at elbow joint partly and inwardly rotated in defence position at wrist joint." He noticed the following external injuries on the person of the deceased- i) contusion and swelling at elbow and left earadm 3 X 2 cm ii) Two nail marks on face. One on lower lip, semicircular, size 1.5 cm X 0.5 cm. Another on left side of cheek, below nose. iii) One black liniar mark starting from chin and ends at left nape of neck, no upgraded margin, no depth. On dissection o glistering surface or bleeding spot below that mark. iv) Contused skin injury over neck, infront of neck on both side. 7-8 cm long X 4 cm wide on both sides of the neck. On internal dissection, hemorrhagic spot on right side 2 X 1 cm and two such haemorrhagic spot, one below another. Size 2 X 1 cm on further dissection, frothy bleeding in trachea. v) Abrasion on left thigh 2 X 1 cm vi) Abrasion on right thigh 3 X 2 cm These injuries were ante-mortem. He also noticed the following internal injuries on the person of the deceased. i) Hemorrhagic spot on left side of scalp region. ii) injury over thorasic region. 6th rib bone was found fractured. On opening thoracic chamber, blood was oozing from right atrium. Laryans, trachea and bronchi found congested. Right and left lung found congested. On opening of abdomen, he noticed 80-100 m.l. of undigested food material found in stomach without any peculiar smell. Kidney was found with blunt trauma.
(3.) ACCORDING to this witness, the death caused due to throttling with the evidence of multiple injuries. Through this witness, the prosecution got proved the Postmortem notes. In view of the evidence of this witness there cannot be duality of opinion that the death of deceased Archana is a homicidal one. Pw-3 Dr.Anil Waghmare, has deposed that Archana was brought in the Primary Health Center, Yedshi at about 2.30 to 2.45 pm on 20.09.2007 by her relatives. When she was brought in the PHC, she was already dead. Relatives gave history that she fall on the ground due to giddiness due to pregnancy. After giving life saving injections, she was referred to Civil Hospital Osmanabad. a) In his cross examination, this witness has admitted that he was unable to identify the relatives of deceased, who had brought her in Primary Health Center, Yedshi.;