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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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