1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.766 OF 2010. IN CRIMINAL APPEAL NO.81 OF 2010. Gorakh Pandurang Shinde. ...APPLICANT. VERSUS The State of Maharashtra. ...RESPONDENT. ... Shri N.S. Ghanekar, Advocate for applicant. Shri N.R. Shaikh, A.P.P. for Respondent – State. ... CORAM : S.B. DESHMUKH AND S.S. SHINDE, JJ. DATE : 13th APRIL, 2010. PER COURT: 1. Heard learned Counsel for the parties. 2. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. 3. The applicant, alongwith one more accused, was charged and tried for the offences punishable under Section 302 of I.P.C., and convicted and sentenced to suffer imprisonment for life and to pay fine of Rs. 2 2000/- with default sentence contained in the operative part of the order of the trial Court in Sessions Case No.221 of 2008. 4. The accused No.2 Dagadu however, was acquitted of the offence punishable under Section 302 of I.P.C. and directed to be set at liberty. This judgment of conviction – acquittal was recorded by the learned Additional Sessions Judge-4, Aurangabad on 10th February, 2010. 5. The appeal filed on behalf of the present applicant is admitted by this Court and record & proceedings has been called for consideration. The learned Counsel Mr. Ghanekar for the applicant took us through the Record & Proceedings, the evidence recorded on behalf of the prosecution. The learned A.P.P. points out the findings of the learned trial Court while opposing the application filed by the applicant for suspension of sentence and release on bail. 6. It is case of the prosecution that the 3 deceased Gitabai was residing with the applicant at village Golegaon, taluka Khultabad. The couple was blessed with three children, two sons namely, Amol, Ankush and daughter Sheetal. The date of incident is 27th March, 2008. Ankush is examined as PW3 and Amol as PW6. At the relevant time, PW3 Ankush was studying in 5th standard and Amol in 7th standard. Prosecution alleges that the present applicant was addicted to liquor. Deceased Gitabai approached to NGO (Darubandi Vyasan Mukti Madat Kendra) of the concerned village. PW7 Anita Admane was President of the said NGO at the relevant time. At the instance of Gitabai prior to two months of the incident, a meeting was called in the office of Gram Panchayat. Around 87 female persons were present. Some female persons out of the gathering tried to convince the accused to abstain from addiction of liquor. The applicant found it to be insulting in front of the female persons of the village. He, therefore, was carrying grudge against the deceased Gitabai. On March 27, 2008, Gitabai was 4 in her house alongwith her children. Present applicant with the aid of his brother Dagadu (accused No.2) carried Gitabai from the house to the mango tree, behind the house of of the applicant. While carrying her, she was gagged with the piece of cloth. Both of them thereafter, pulled the rope which was around the neck of deceased Gitabai. Both of them have thus, strangulated deceased Gitabai in the night hours of 27th March, 2008. After committing murder of deceased Gitabai, her dead body was brought in the house and kept on cot. Next day morning, the applicant carried milk of his cow to the Dairy. The children woke up and found their mother deceased Gitabai lying on the cot. One of them gave a phone call to his maternal uncle Sanjay Warkad, who was examined during the course of trial. Sanjay arrived at the spot. The villagers also gathered. All of them found that Gitabai was no more. Sanjay, brother of deceased lodged F.I.R. Criminal law was set in motion. Investigation was carried out and charge-sheet was 5 filed. The applicant, alongwith his brother Dagadu, was tried. The applicant was convicted however, his brother Dagadu was acquitted, as narrated in the opening paragraph. 7 The learned Counsel for the applicant submits that the prosecution case mainly rests on the eye witness account of two witnesses i.e. Ankush and Amol, children of the deceased Gitabai and applicant as well. Both of them did not support the prosecution. The applicant is convicted by the trial Court based on the alleged circumstances. According to him, even the circumstances alleged by the prosecution have not been established beyond reasonable doubt. Two injuries found on the person of the applicant, are not relevant. According to the Counsel for the applicant, in the cross-examination, prosecution itself has brought on record the material pointing out that after arrival of Sanjay, brother of the deceased, there was quarrel between Sanjay and applicant, resulting in some injuries on the face 6 of the applicant by Sanjay. He also points out that confession of Ankush was recorded under Section 164 of Cr.P.C. and when portion marked “A” was pointed out to the witness, he denied the same to have stated before the Magistrate. Thus, according to the learned Counsel for the applicant, prima facie, there is no case against the applicant proving his involvement for the offence under Section 302 of I.P.C. He fairly concedes that the applicant was not on bail during the trial before Sessions Court. The Counsel for the applicant took us through the evidence of PW9 Dr. Yewtikar. He commented upon the evidence of PW9. According to him, the statement made by PW09 Dr. Yewtikar that it is the case of strangulation, cannot be accepted to be a homicidal death. According to him, there is thin distinction in death by strangulation and hanging. It is the duty of the prosecution to bring on record the evidence through expert i.e. Medical Officer or any other expert to point out death of deceased person is on account of strangulation i.e. 7 homicidal death. Accused is not supposed to bring material against him for such purpose. Based on the evidence of PW9 Dr. Yewtikar, he submitted that material brought on record by the prosecution do suggest the case of suicidal death of deceased Gitabai. And not strangulation. 8 The learned A.P.P. took us through various paragraphs of the trial Court’s judgment, appreciation of the oral and documentary evidence. According to him, the President of the NGO Mrs. Anita Admane was examined by the prosecution. The incident of insulting occurrence because of the complaint or approach by the deceased Gitabai is established. According to him, the trial Court has considered the evidence of children Ankush and Amol. The trial Court has also considered elaborately the evidence of PW9 Dr. Yewtikar and submission on behalf of the applicant in relation to the suicidal death and not homicidal death of Gitabai. 8 9 With the assistance of the Counsel for the parties, we have seen the findings recorded by the trial Court, the evidence of PW9 Dr. Yewtikar, the evidence of PW3 Ankush, son of applicant and deceased Gitabai. Apart from the appreciation of oral evidence of the prosecution witnesses including two eye witnesses i.e. Ankush and Amol, and Dr. Yewtikar, the trial Court has also considered the circumstances brought on record and established by the prosecution. These circumstances have been separately considered by the trial Court and findings on these circumstances have been recorded. Such observations of the trial Court starts from paragraph No.34 onwards. The learned A.P.P. has pointed out to us paragraph 39 of the judgment of the trial Court. In this paragraph, the learned trial Court has discussed the circumstances and material against the applicant. Discovery of blood stained clothes at the instance of the applicant is also taken into account by the trial Court. Report of the Chemical Analyzer which is 9 placed at Exh.48 is also noticed by the trial Court. Based on these material, as mentioned in the opening paragraph, the trial Court has recorded finding of guilt. 10 We have given due consideration to the submissions advanced on behalf of the parties. We have also perused the material – evidence brought on record by the prosecution. In our opinion, this is not a fit case for suspension of sentence and grant bail in favour of the applicant. Application stands rejected. Rule discharged. No costs. The learned Counsel Mr. Ghanekar for the applicant seeks liberty to submit adequate number of private paper book enabling early hearing of the appeal. After hearing learned A.P.P., we are inclined to grant such permission. Liberty to the applicant to supply adequate number of copies of private paper book within six weeks from today. [ S.S. SHINDE ] [ S.B. DESHMUKH ] JUDGE JUDGE Kadam/*