KUSHA LAXMAN WAGHMAREversusSTATE OF MAHARASHTRA

                   [2014] 9 S.C.R. 505


             KUSHA LAXMAN WAGHMARE                            A
                            V.
                STATE OF MAHARASHTRA
            (Criminal Appeal No.1414 of 2008)
                 SEPTEMBER 02, 2014
                                                              B
  [M.Y. EQBAL AND PINAKI CHANDRA GHOSE, JJ.]

     Penal Code, 1860 - s. 304 Part-II - Punishment for
culpable homicide not amounting to murder - Prosecution
case that husband killed his wife by hitting her severely with C
wooden stick - Conviction uls. 302 and sentence of
imprisonment for life by courts below - Held: On basis of
evidence of prosecution witnesses, extra-judicial confession
of the husband and medical evidence, case not fit for
conviction u/s. 302 - Since there is no evidence to show that D
accused had beaten the deceased with an intention to cause
her death, conviction altered to s. 304 Part II and accused
sentenced to rigorous imprisonment for ten years, which he
has already served, accused enlarged on bail.
    According to the prosecution case, the appellant-         E
husband severely beat his wife with wooden stick and
she succumbed to her injuries. The courts below
convicted the appellant u/s. 302 IPC and sentenced him
to undergo imprisonment for life. Hence, the instant
appeal.                                                       F
    Partly allowing the appeal, the Court
    HELD: 1.1. There is no eye-witness to the
occurrence. But the accused-appellant made extra-
judicial confession before PW-1 and PW-2. No                  G
explanation was o,ffered by the accused under Section
313 of the Code of Criminal Procedure. The post mortem
report fully corro.borated the injuries caused to the

                            505                               H
    506         SUPREME COURT REPORTS [2014] 9 S.C.R.


A deceased by the appellant with wooden stick. All the
  three witnesses viz .. PW-1, PW-5 and PW-6, proved the
  prosecution case. Thus, after analysing the entire
  evidence, it was not a fit case where conviction could be
  sustained under Section 302, IPC. The weapon used by
s the appellant was 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
c such circumstances, the conviction of the appellant
  under Section 304 Part-II, IPC would be just and proper,
  thus, the conviction of the appellant is altered to Section
  304 Part-II, IPC and he is sentenced to undergo rigorous
  imprisonment for ten years, which he has already served,
0 the appellant is\enlarged on bail. [Para 10, 11,12,13) [508-
  C-H; 509-A-B]
        CRIMINAL AP~ELLATE JURISDICTION : Criminal Appeal
    No.1414 of 2008.
E       From the Judgment and Order dated 09.01.2004 of the
    High Court of Judicature at Bombay in Criminal Appeal No.
    385/1995.
          Jai Prakash Narayan Gupta (A.C.) for the Appellant.
          Asha Gopalan Nair for the Respondent.
F
          The Judgment of the Court was delivered by
        M. Y. EQBAL, J. 1. Aggrieved by the judgment and order
  dated 09.01.2004 passed by the High Court of judicature at
G 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
H life and pay fine of Rs.1,000/- with default .clause.
     KUSHA LAXMAN WAGHMARE v. STATE OF                      507
         MAHARASHTRA [M.Y. EQBAL, J.]
      2. The allegation as per the prosecution case is that        A
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     B
charge-sheet against the appe.llant 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      C
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        D
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           E
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.                                                             F
     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.                                               G

    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              H
     508        SUPREME COURT REPORTS [2014] 9 S.C.R.


A    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
8
     trial court.

           8. None appears on behalf of the appellant.

           9. We have heard learned counsel appearing for the
c respondent-State.
       10. Admittedly, the·re 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.
D The post mortem report fully corroborates the injuries caused
  to the deceased by the appellant with wooden stick. Al.I the
  three witnesses viz. PW-1, PW-5 and PW-6, have proved the
  prosecution case.

E         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
F    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.
G         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.
.H
      KUSHA LAXMAN WAGHMARE v. STATE OF                      509
          MAHARASHTRA [M.Y. EQBAL, J.]
     13. On 05.09.2008, learned Amicus Curiae appearing for          A
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          B
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          C
observed in the aforesaid order passed by this Court, his bail
bonds shall stand discharged.

Nidhi Jain                                  Appeal partly allowed.