ARVIND ANANDA BANDAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal filed under Section 374 of Cr.P.C. is directed against the order of conviction and sentence passed by the learned Additional Sessions Judge at Islampur, District - Sangli in Sessions Case No.23 of 2005, wherein the appellants came to be convicted for the offence punishable under Section 302 read with Section 34 of IPC and all of them have been sentenced to suffer life imprisonment and to pay a fine of Rs. 1,000/- each, in default to suffer RI for three months.

(2.) AS per the prosecution, accused no.1 Arvind is the husband of the deceased - Kusum and accused no. 2 is the son of accused no. 1 and the deceased. Whereas accused no.3 is the younger brother of accused no.1. The accused are the residents of village Waghwadi and the houses of accused nos.1 and 3 are located next to each other, in the vasti away from the village and attached to their agricultural land. In addition to accused no.2, the accused no.1 begotten three daughters from the deceased, namely, Shubhangi, Gauri and Minakshi Shubhangi was married and staying at her matrimonial home at village Nagthane and Gauri and Minakshi were unmarried. Around 13/3/2005, there was an yearly fete at village Peth and, therefore, Shubhangi had come to her parental home at village Waghwadi and all the three sisters had attended the said fete and returned to village Waghwadi on 14/3/2005. On the same day, Shubhangi went to her matrimonial home and Gauri also accompanied her, thus, leaving behind Minakshi and accused no.2 as the two children staying with the deceased. Accused no.1 was in the neighbouring village - Borgaon for the last about two months. On 15/ 3/2005, Minakshi - PW 3, got up at about 6 a.m. and came out of the room, where her mother and she were sleeping. While she was removing the ash from the cooking place, all the accused entered the house, accused no.1 shouted and abused at the deceased whereby she woke up. All the accused entered the room, where the deceased was sleeping and accused no.1 sat on her chest, accused no.2 held her hands and accused no.3 held her legs. Accused no.1 strangulated her despite the protest of Minakshi and she was threatened to keep quiet. Within few minutes, all the accused fled away from the rear side door and Minakshi went near her mother and tried to move her, but she was motionless and, therefore, she realized that her mother was dead. Police came at the scene at about 9.30 a.m., drew inquest panchanama (Exh.30) and spot panchanama (Exh.29) and Minakshi's complaint was recorded and registered as C.R. No.50 of 2005 (Exh.41). PW 4 - Subhash Shinde was the Police Officer, who recorded Minakshis complaint and got the C.R. registered at about 9.55 a.m. The accused came to be arrested around 4 p.m. on the same day from a place between Waghwadi and Islampur. The dead body of Kusum was sent for post mortem and PW 2 - Dr. Sandeep Patil conducted autopsy on 15/3/2005 between 1 to 2 p.m. and signed the post-mortem report at Exh.38. The cause of death shown in the post mortem report was "asphyxia due to throttling". On completion of investigation, the charge-sheet came to be filed and the case being exclusively triable by the Sessions Court, it was committed. Charge was framed on 30/8/2005 (Exh.2).

(3.) MR. Shinde, the learned APP, on the other hand, has supported the impugned order of conviction and sentence and submitted that PW 3 was a natural witness and there was no material brought on record to suspect her testimony when she was deposing against her own father, brother and uncle. As per MR. Shinde, the failure to examine Anna Ramoshi as an additional witness has not vitiated the prosecution case and it is for the prosecution to decide who should be its witnesses. In any case, Anna Ramoshi was not a material or relevant witness and he was a resident of village Peth. MR. Shinde referred to the depositions of PW 3 - Minakshi and pointed out that the said Anna Ramoshi was a close family friend and was helping the family in the hours of need. MR. Shinde also submitted that the deceased had no injuries on any other part of her body, except around her neck and this itself went to show that the assailants were more than one and they could be only the accused, who were seen by PW 3 while committing the crime and PW 3 was not allowed to alert anyone under the threats that she would also be dealt with in the same manner, by accused no.1. We are, therefore, required to examine whether the prosecution case could be accepted on the basis of the evidence of PW 3 - Minakshi, the sole minor eye-witness.