Criminal Appeal No. 98 of 1996. Case: Bhausaheb alias Babu Vs State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 98 of 1996 |
| Counsel | For Appellant: R.M. Borde and Mrs. Ashwini A. Joshi, Advs. and For Respondents: P.G. Godamgaonkar, learned A.P.P. |
| Judges | S. G. Mutalik, J. |
| Issue | Criminal Procedure Code (2 of 1974) - Section 164; Indian Penal Code (45 of 1860) - Section 304 |
| Citation | 1997 CriLJ 467 |
| Judgement Date | July 16, 1996 |
| Court | High Court of Bombay (India) |
Judgment:
(Aurangabad Bench)
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Appellant-original accused has preferred the present Criminal Appeal against the judgment and sentence passed by Shri J.A. Shaikh, first Additional Sessions Judge, Beed, in S.C. No. 168/1995, convicting the appellant under Section 304(1) of I.P.C. and is sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for three months on 27-2-1996.Learned First Additional Sessions Judge, Beed (hereinafter referred to as the learned Judge) has acquitted the appellant under Section 302 of I.P.C. Usual set off is given to the appellant under Section 428 of Cr.P.C.
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In short, the case of the prosecution is that the appellant was then working as a Lineman in M.S.E.B. Department and was posted at Arvee. He had erected a hut in his agricultural land and it is situated at a distance of about 1 km. from village Arvee. Vatsalabai is the first wife of the appellant while Sindhubai (deceased) was his second wife. Vatsalabai has one daughter and two sons while Sindhubai has one daughter by name Kirti who was then aged about one and half year.
It is the case of the prosecution that the appellant was accustomed to consume liquor. Some time on 7-6-1995, there was marriage ceremony of Vatsala's brother and hence she, along with children, had gone to her parent's place in the same village. Appellant and deceased Sindhubai used to reside in the house situate in their agricultural land.
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On 10-6-1995, quarrel took place between the appellant and deceased Sindubai at their house situated in the field. The accused got enraged lost his temper and he took an axe and assaulted on Sindhubai's head as a result of which she died instantaneously. Appellant's son, by name Pandurang, was in the field and was giving water to the farm. He saw the quarrel between the appellant and Sindhubai and he further saw the incident in question and immediately went to the residence of Police Patil Goverdhan Mayekar (PW No. 1), at Arvee, and informed the incident. At the same time, Dadasaheb, who is brother of Vatsalabai, also came to know about the incident from Goverdhan Mayekar and that the Police Patil had gone to the place of incident along with some people. In the meantime, PW No. 1 Goverdhan Mayekar went to the place of incident and saw that Sindhubai's dead body was lying in the hut in kitchen room and that blood was oozing from the head injury. Thereafter, he went to Police Station, Shirur, and lodged a report. Immediately, within next two hours, P.S.I., Shirur, came there. He prepared the inquest. He also noticed that the appellant was lying nearby in injured condition. His bloodstained clothes were attached and he was interrogated. Sindhubai's dead body was sent for post mortem examination and similarly the appellant was also sent to the hospital for medical treatment. When the appellant was undergoing treatment, Special Judicial Magistrate was called for recording his confession. It appears that Special Judicial Magistrate recorded his confession.
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It is further the case of the prosecution that after the appellant assaulted Sindhubai by means of an axe on her head and committed her murder, he got fed up and repented also. He climbed on the electric pole and caught hold of live wire as a result and was thrown away from the electric pole and thus he sustained further injuries. Appellant was discharged from the hospital on 1-7-1995 and immediately he was arrested. The investigating Officer recorded statements of witnesses, attached articles were sent to the office of Chemical Analyser for examination and thereafter he filed chargesheet against the appellant.
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Charge (Ex. 7) is framed against the appellant and it was explained to him in Marathi. He denied the charge and claimed to be tried. The defence of the appellant is of total denial. He has denied that he assaulted his second wife Sindhubai by means of an axe and committed her murder. In respect of the injuries sustained by him, he has denied that he attempted to commit suicide. According to him, the witnesses are on cross terms with him and hence they are deposing falsely. He and Police Patil are on cross terms and hence false story is put against him. All the injuries which were found over his body were old. According to him, because of collapse of a stone wall, Sindhubai sustained injuries and she expired. He has not adduced any evidence in his defence.
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Prosecution examined in all 18 witnesses in support of its case. Learned Additional Judge after considering the evidence on record, came to the conclusion that the confession of the appellant recorded by the Special Judicial Magistrate is proper and lawful and that there is also independent corroboration to the same and thus convicted the appellant. Being aggrieved, the appellant has preferred the present Criminal Appeal.
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Shri R.M. Borde, learned Advocate for the appellant, initially, attacked on the so called confessional statement of the appellant recorded by Shankar Channya Pagote (PW No. 14) and submitted that Special Judicial Magistrate has absolutely no power to record the confession. According to learned Advocate, such a power is exclusively conferred upon Metropolitan Magistrate or Judicial Magistrate of the First Class or, in case if such a special power is conferred, only in that case, Judicial Magistrate, Second Class, or the Special Judicial Magistrate can record the confession. Learned Advocate submitted that in the present case, Shankar Pagote (PW No, 14), in his evidence, has nowhere stated as to whether he is specifically empowered by the State Government or by the High Court to record confession. According to learned Advocate, in case if this Court comes to the conclusion that the Special Judicial Magistrate (PW No. 14) has no power to record confession of the appellant, in that case, it is not necessary to consider as to whether the retracted confession of the appellant is duly corroborated by the independent evidence on record. It is also not necessary to consider if there are some other circumstances on record to corroborate the contents of the retracted confession so as to come to the conclusion that, in fact, it is a confession, legal and valid, and can be relied upon.
The second attack of the learned Advocate is in respect of mode of recording the confession. It is submitted that, assuming for the sake of argument that, Special Judicial Magistrate is empowered to record the confession, whether the same is recorded according to the provisions of...
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