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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 =

=

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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