1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION APPEAL NO. 249 OF 2005 (Through Jail) Mahadeo Dattatraya Kamble .. Appellants Versus The State of Maharashtra .. Respondent Mr. Abhaykumar Apte for the appellant Mr. H. J Dedhia, APP for the State. CORAM: MRS. RANJANA DESAI & MRS. MRIDULA BHATKAR, JJ. DATED :Reserved for order on: 5/01/ 2010 Order declared on : 25 /02/ 2010 J U D G E M E N T (Per Mridula Bhatkar, J.) 1. This appeal is filed against the judgment and order dated 7 th January, 2004, passed by learned 2 nd Ad-hoc Additional Sessions Judge, Kolhapur, thereby convicting the appellant accused for the offence of murder under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life 2 and to pay fine of Rs.3000/-, in default rigorous imprisonment for the period of six months. 2. The appellant-accused and deceased-Mangal were husband and wife and resident of Doulatwadi Tq. Kagal Dist. Kolhapur. Out of the wedlock, they had two children of 13 and 12 years. The accused used to drink liquor and was always suspicious about the character of his wife and used to abuse and assault her. The incident of murder has taken place on 16.8.2002. The appellant, at about 1.30 noon, took her wife to forest to collect the firewood. They left their house with axe and ropes. However, they did not return home till evening. So, the father of the deceased i.e. the complainant , at around 6 p.m., went to the field to search his daughter and son-in-law. He inquired with some ladies who were returning from the field. At that time, those ladies have informed him that one lady was lying at the place known has “Halmal” and near her two firewood bundles were lying. So, the complainant proceeded and found his daughter Mangal lying near the road with bleeding injuries to her neck and forehead, however his son-in-law was not there. So he lodged complaint with Murgud Police Station. The police 3 registered offence against the accused of murder under Section 302 of the Indian Penal Code. The police arrested the appellant on 17.8.2002. The accused was tried for the said offence and the trial ended in conviction. 3. Learned counsel Mr. Apte appearing for the accused submitted that there is no eye witness to the incident and evidence of the seizure of the clothes and of the weapon and Chemical Analysers report are unreliable. He further submitted that there are discrepancies and contradictions in the evidence of the witnesses which ought to who have been taken in to account by the learned judge. Learned counsel has further submitted that the case of the prosecution stands on very weak evidence. The learned Judge should not have given any importance to the seizure of the clothes of the accused as no person will keep the blood stained clothes on his person for one day after commission of murder. The evidence of seizure of the weapon i.e. Axe is doubtful as the spot was easily accessible to others and there is no specific mention about the said spot. He pointed out that these factors ought to have been taken in favour of the accused and submitted that the impugned judgment deserves to be set aside. 4 4. Learned APP opposed the submission of learned defence counsel. He argued that there is concrete evidence of last seen together and inury on the person of the deceased were posible by the weapon like Axe. 5. On hearing learned defence counsel and learned APP and after going through the record and judgment, we find that the entire case is based on the circumstantial evidence. 6. On the point of last seen together, we rely on the decision of the Supreme Court in the case of State of Rajasthan Vs. Kashiram, reported in 2006 12 SCC 254 in which the Hon’ble Supreme Court ruled as under: “The provisions of Section 106 of the evidence Act itself are unambiguous and categoric in laying down that when any fact is specially within the knowledge of a person, the burden of proving that fact is upon him. Thus if the person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so, he must be held to 5 have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act.” 7. The evidence of the complainant discloses that the relations of the accused with his deceased wife were unhappy and strained. There was constant dispute between them and the accused was suspicious about her character. The complainant had no son and therefore the accused was residing in the house of the complainant. On the point of motive, the learned judge has elaborately discussed the evidence of the complainant- Pandurang Govind Kamble (PW-6), and on the point of last seen together and the accused was carrying Axe evidence of PW-4-Baburao Lalu L Kamble is rightly relied upon. PW-1 Dr. Nandkumar Kulkarni has deposed on the cause of death of the deceased Mangal as hemorrhagic shock due to excessive bleedings from the vessel from neck region due to neck injuries; shown at Sr. Nos. 1 and 2 in para 17, of the postmortem notes Exh.15 and those injuries were sufficient to cause death. He has also pointed that these injuries are possible by the weapon like 6 Axe. This medical evidence is found consistent with the circumstantial evidence brought on record by the prosecution. The blood stained Axe was seized under the recovery panchana dated 18.8.2002. The said fact is proved through the evidence of PW-7 Baburam Dhonduram Farkate. The statement (in Marathi) was made by the accused under Section 27 of the evidence Act while describing the place that the Axe was lying in the grass. In Marathi he has stated as “xorkr dq&gkM ” . Thus, it can not be said that there was no specific statement regrading the place. The person may not give very specific or accurate description regarding the place of recovery, however, it should not be too general. We can not appreciate the submissions of the learned defense counsel on this aspect. 8. The learned Judge has rightly taken into account the conduct of the accused after the death of his wife. He did not return to the house but at the time of his arrest he was found sleeping in the temple on the next day. The deceased was found last in the company of the accused and this is a very strong circumstance against the accused. The accused could not offer any satisfactory explanation as to how and when he parted 7 company with the deceased. The evidence of the prosecution witness is concrete and cogent. The learned Judge has properly appreciated the said evidence in its proper perspective. The prosecution has proved its case beyond doubt. We don’t find any reason to interfere with the judgment of conviction as no illegality is pointed out. Hence the appeal is dismissed. (MRS. MRIDULA BHATKAR, J. ) (MRS.RANJANA DESAI, J.) jpc/-