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Friday, September 12, 2014

Sec. 304 - Part II - but not under sec. 302 - as the weapon used was only stick - as there was no intention to kill the deceased - Hence the conviction was modified and sentenced to 10 years -already 10 years in Jail - released = CRIMINAL APPEAL NO.1414 OF 2008 KUSHA LAXMAN WAGHMARE ………APPELLANT VERSUS STATE OF MAHARASHTRA ….....RESPONDENT = 2014 - Sep. Month. -http://judis.nic.in/supremecourt/filename=41862

 Sec. 304 - Part II - but not under sec. 302 - as the weapon used was only stick - as there was no intention to kill the deceased -  Hence the conviction was modified and sentenced to 10 years -already 10 years in Jail - released =
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  Admittedly, there  is  no  eye-witness  to  the  occurrence.  But  the
accused-appellant made extra-judicial confession before PW-1 and  PW-2.   No
explanation was offered by the accused under Section  313  of  the  Code  of
Criminal Procedure.  The post mortem report fully corroborates the  injuries
caused to the deceased by the appellant with wooden stick.
 After giving  our  anxious  consideration  in  the  matter  and  after
analysing the entire evidence, we are of the view that it is not a fit  case
where conviction could be sustained under Section 302, IPC. The weapon  used
by the appellant is a wooden stick and as  per  the  prosecution  case,  the
deceased was severely beaten by the said stick.   As a result  thereof,  she
died.   There   is   no   cogent evidence to show  that  the  appellant  had
beaten  the  deceased  with  an  intention  to  cause  her  death.  In  such
circumstances, the conviction of the appellant under  Section  304  Part-II,
IPC will be just and proper.


12.   In the result, the appeal is partly allowed,  the  conviction  of  the
appellant under Section 302, IPC is altered to Section 304 Part-II, IPC  and
he is sentenced to undergo rigorous imprisonment for  ten  years.   However,
the fine and default clause shall remain intact.

13.   On 05.09.2008, learned Amicus Curiae appearing for the  appellant  had
made a statement before this Court that the incident is of  March  02,  1998
and immediately thereafter the  appellant  was  arrested  and  thus  he  has
completed more than ten years in jail. Keeping in view the statement of  the
learned Amicus, this Court on the same  day  i.e.  05.09.2008  enlarged  the
appellant on bail.

14.  Since we have altered the conviction of the appellant  to  Section  304
Part-II, IPC and awarded him a sentence of ten years rigorous  imprisonment,
which he has already served as observed in the  aforesaid  order  passed  by
this   Court, his bail bonds shall stand discharged.
2014 - Sep. Month. -http://judis.nic.in/supremecourt/filename=41862

                                                             REPORTABLE

                       IN THE SUPREME COURT OF  INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.1414 OF 2008
KUSHA LAXMAN WAGHMARE             ………APPELLANT
                                   VERSUS
STATE OF MAHARASHTRA                     ….....RESPONDENT

                               J U D G M E N T

M. Y. Eqbal, J.

Aggrieved by  the  judgment and order  dated  09.01.2004 passed by the  High
Court of Judicature at Bombay passed in  Criminal  Appeal  No.385  of  1999,
this jail appeal by special leave has been filed  by  the  accused.  By  the
impugned judgment, the High  Court  affirmed  and  upheld  the  judgment  of
conviction passed by the Sessions Judge of  Raigad  at  Alibag  in  Sessions
Case No.  127  of  1998  and  sentenced  the  accused-appellant  to  undergo
imprisonment for life and pay fine of Rs.1,000/- with default clause.


2.    The allegation as per the prosecution case is  that  appellant  killed
his wife Anusuya by means of wooden bar, hitting her very  severely  on  the
chest and at the  back.  Because  of  severe  beating,  there  was  internal
bleeding and as a result thereof, she died. A First Information Report  (for
short,  'FIR')  was  lodged  and  after  usual        investigation,  police
submitted the charge-sheet against the appellant under Section  302  of  the
Indian Penal Code (in short, ‘IPC’).

3.    PW-1 Devram Satu Waghmare who was police Patil  of  village  Pilosari,
deposed that in his absence the appellant  visited  his  house  and  made  a
voluntary confession to his wife PW-2 Sunita that he had  killed  his  wife.
On getting the information, PW-1 immediately reached the  spot  of  incident
and there he found the appellant sitting beside the dead body of  his  wife.
The appellant also narrated the story to PW-1 and confessed that  he  killed
his wife. PW-1 then telephoned the police station from where  the  inspector
of police arrived and arrested the accused.

4.    The prosecution examined  PW-2  Sunita,  who  is  wife  of  PW-1.  She
deposed that the accused-appellant came to her house and confessed  that  he
killed his wife by assaulting her with wooden stick. The  appellant  further
said that he came to the  house  of  PW-2  just  to  disclose  this  to  her
husband. PW-2 had told her husband PW-1  that  the  appellant  came  to  the
house.

5.    Dr. Parshuram Kotekar was examined as PW-4, who conducted post  mortem
over dead body of the deceased. According to him, the death was  caused  due
to intrathoracic haemorrhage due to fracture of right  and  left  ribs  with
intra-cranial haemorrhage.


6.   The   trial   court on the basis of evidence  found  that  the  accused
had not at all offered any explanation in his examination under Section  313
of the Code of Criminal Procedure. The Sessions Court,  therefore,  came  to
the conclusion  that  it  was  the  appellant  who  murdered  his  wife  and
accordingly convicted him under Section 302, IPC.

7.   The High Court after re-appreciation of evidence and relying  upon  the
extra-judicial confession made by the appellant, upheld the  conviction  and
sentence passed by the trial court.

8.          None appears on behalf of the appellant.
9.    We have heard learned counsel appearing for the respondent-State.

10.   Admittedly, there  is  no  eye-witness  to  the  occurrence.  But  the
accused-appellant made extra-judicial confession before PW-1 and  PW-2.   No
explanation was offered by the accused under Section  313  of  the  Code  of
Criminal Procedure.  The post mortem report fully corroborates the  injuries
caused to the deceased by the appellant with wooden stick.   All  the  three
witnesses viz. PW-1, PW-5 and PW-6, have proved the prosecution case.


11.   After giving  our  anxious  consideration  in  the  matter  and  after
analysing the entire evidence, we are of the view that it is not a fit  case
where conviction could be sustained under Section 302, IPC. The weapon  used
by the appellant is a wooden stick and as  per  the  prosecution  case,  the
deceased was severely beaten by the said stick.   As a result  thereof,  she
died.   There   is   no   cogent evidence to show  that  the  appellant  had
beaten  the  deceased  with  an  intention  to  cause  her  death.  In  such
circumstances, the conviction of the appellant under  Section  304  Part-II,
IPC will be just and proper.


12.   In the result, the appeal is partly allowed,  the  conviction  of  the
appellant under Section 302, IPC is altered to Section 304 Part-II, IPC  and
he is sentenced to undergo rigorous imprisonment for  ten  years.   However,
the fine and default clause shall remain intact.

13.   On 05.09.2008, learned Amicus Curiae appearing for the  appellant  had
made a statement before this Court that the incident is of  March  02,  1998
and immediately thereafter the  appellant  was  arrested  and  thus  he  has
completed more than ten years in jail. Keeping in view the statement of  the
learned Amicus, this Court on the same  day  i.e.  05.09.2008  enlarged  the
appellant on bail.

14.  Since we have altered the conviction of the appellant  to  Section  304
Part-II, IPC and awarded him a sentence of ten years rigorous  imprisonment,
which he has already served as observed in the  aforesaid  order  passed  by
this   Court, his bail bonds shall stand discharged.

                                                        …………………............J
                                                               [M. Y. Eqbal]


                                                              ……………………………..J
                                                      [Pinaki Chandra Ghose]

New Delhi
September 2, 2014

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