KUSHA LAXMAN WAGHMARE Vs STATE OF MAHARASHTRA
Bench: M.Y. EQBAL,PINAKI CHANDRA GHOSE
Case number: Crl.A. No.-001414-001414 / 2008
Diary number: 28665 / 2006
Advocates: JAIL PETITION Vs
ASHA GOPALAN NAIR
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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.
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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.
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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.
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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 4
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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. 5
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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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