VILAS RAGHUNATH KURHADE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE appeals filed under Section 374 (2) of Cr.P.C., arise from the order of conviction and sentence passed on 7th January, 2002 by the learned Ad-hoc Additional Sessions Judge at Pune, in Sessions Case No.238 of 2001. The appellant in Criminal Appeal No.152 of 2002 is on bail as of now and the appellant in appeal No.82 of 2003 is in jail and he is undergoing the sentence. Both the accused came to be arrested on 14th February, 2001 and accused No.1 has been in jail continuously from that date.

(2.) AS per the prosecution case accused No.1 is the husband of P.W.3- Mangal and accused No.2 is his cousin brother from maternal side and both of them are permanent residents of Panvel. On the date of the incident i.e. on 12th February, 2001 P.W.3-Mangal was in her parental home at village Rase for about one month prior to 10th February, 2001. During the said time there was yearly fete in the said village and, therefore, to celebrate the same accused had also gone to Rase. On 12th February, 2001 both the accused were in the house of the mother of Mangal i.e. P.W.2- Sugandha Dhondiba Gote as the guests. They were served with dinner and deceased Sayaji Mungse along with P.W.10-Shivaji Kedari was also present in the house of P.W.2 at about 10.00 p.m. Both Sayaji and Shivaji were the residents of village Rase. After he was served dinner Sayaji eft the house of P.W.2 along with the accused and P.W.10-Shivaji so as to return to his house. The accused also accompanied Sayaji as well as P.W.10 as the house of P.W.10 was on the way and after dropping Shivaji at his house the accused continued to go with Sayaji. They returned to the house of P.W.2 past midnight and P.W.3-Mangal opened the door and they slept on the varandha whereas P.W.2-Sugandha and P.W.3-Mangal slept in the room. As per the prosecution accused No.1 woke up Mangal and told her that he had murdered Sayaji and on the next day early morning both the accused left for Panvel and were paid Rs.200/- for bus fare charges by P.W.2. After their departure P.W.3-Mangal asked her mother P.W.2- Sugandha to go to the house of Sayaji and to find out his whereabouts as she suspected something at the behest of the accused. P.W.2-Sugandha, therefore, went to the house of Sayaji along with P.W.10 and she did not find him there. She heard some rumour and, therefore, she went to the bridge side and came to know that Sayaji was done to death and his body was in the water pit along side the bridge wall. Baban Kondiba Chavan, P.W.1 gave intimation to the Chakan Police Station and within a short time the police party arrived. P.W.9-Kisan Dagadu Mungse identified the body of Sayaji as he was Sayaji 's uncle. The dead body was sent for postmortem which was conducted by P.W.7-Dr. Shivaji Rakhamaji Kharat. The chappal which was lying near the dead body was also recovered and the clothes of the deceased along with the chappal were sent for Chemical Analysis. The postmortem report Exhibit "30 " indicated that Sayaji was assaulted with fist blows and he had head injury with fracture of skull and thus he died a homicidal death. P.W.8-Dattatraya Bhagvant Mungse claimed that he had seen the deceased Sayaji Mungse in the company of the accused in the night of 12th February, 2001. The accused came to be arrested on 14th February, 2001. P.W.13-Ramchandra Namdeo Pathare was the Investigating Officer and P.W.12-Dnyandeshwar Shankar Mali conducted accidental enquiry and thereafter recorded the F.I.R. On completion of investigation P.W.13 submitted a charge sheet and the case being exclusively triable by the Sessions Court the same came to be committed to the Sessions Court. The charge at Exhibit "4 " was framed on 18th July, 2001.

(3.) IN support of the last seen theory, the prosecution relied upon the evidence of P.W.2-Sugandha Dhondiba Gote, P.W.3-Mangal Harischandra Munjule, P.W.8-Dattatraya Bhagvant Mungse and P.W.10-Shivaji Bhaguji Kedari. On the issue of motive, it was claimed by the prosecution that deceased Sayaji Mungse had left his wife and was staying alone. He was associated with P.W.-2-Sugandha for the manufacture and sale of country liquor and he was involved with her in illicit relationship. This was not liked by the accused No.1 and, therefore, with the help of accused No.2 he eliminated Sayaji Mungse after the midnight of 12th February, 2001 by hitting/smashing stones on the head of the deceased. The prosecution also claimed that accused No.1 had made extra judicial confession to his wife P.W.3-Mangal after 1.30 a.m. on 13th February, 2001. The learned trial Judge accepted the case of the prosecution and held that both the accused in furtherance of their common intention had convicted for the murder of Sayaji Mungse and caused disappearance of the evidence of commission of the said offence. Consequently both of them came to be committed for the offences punishable under Sections 302 and 201 read with Section 34 of the I.P.C. Both of them have been sentenced to suffer R.I. for life for the offence punishable under Section 302 read with Section 34 of the I.P.C. and R.I., for three months and pay a fine of Rs.500/- for the offence punishable under Section 201 read with Section 34 of the I.P.C.