apeal no.63.2001 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 63 OF 2001
Sanjay S/o Jayram Gaikwad,
Aged about 28 years,
R/o Shirasgaon,Police Station Ner,
District Yavatmal. ..... APPELLANT
...V E R S U S...
The State of Maharashtra,
Through Police Station Officer,
Police Statiion Ner, District-Yavatmal. ...RESPONDENT
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Shri R.M.Daga,Advocate for appellant.
Smt.T.H.Udeshi,Addl.P.P. for State.
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CORAM:- V. M. DESHPANDE, J.
DATED :- JUNE 28,2017 ORAL JUDGMENT Being dissatisfied with his conviction and consequent order of sentence imposed by learned 2 nd Additional Sessions Judge,Yavatmal dated 26/2/2001 in S.T.No.76/1994 the appellant is before this Court.
2. By the impugned judgment and order of conviction, the appellant is convicted for the offence punishable under Section 452 of the Indian Penal Code and is directed to suffer R.I. for 2 years and to pay fine of Rs. 2000/- and in default of payment of ::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:11:02 ::: apeal no.63.2001 2 fine further R.I. for 6 months. The appellant is also convicted for the offence punishable under Section 354 of the Indian Penal Code and is directed to suffer R.I. for one year and to pay fine of Rs. 1000/- and in default of payment of fine further R.I. for 3 months.
3. The prosecution case in brief, is as under:
Chanda Sheshrao Tayade, deceased at the relevant time was aged about 15 years. The present appellant is brother in law of one Vishnu Shejav, the neighbour of deceased Chanda. The appellant was staying with Vishnu since he was taking education at Shirasgaon.
According to prosecution, on 19/12/2013, at about 4.00 a.m. parents of Chanda went for their work at Ginning Factory. She was sleeping inside the house. Her brother Santosh Sheshrao Tayade(PW1) was sleeping at Osri(varandah) of the house. The prosecution case further states that on the said date and time appellant jumped inside the house of deceased and entered in the house by removing the chain of door. As per the case of the prosecution, thereafter appellant hold the hands of ::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:11:02 ::: apeal no.63.2001 3 Chanda. A knife was also in his hand. On hearing the commotion of jumping Santosh(PW1) awoke from sleep. He closed the door from outside and thereafter ran towards ginning factory and narrated the incident to his father. Sheshrao(PW2), thereafter he and his father came running towards their house and noticed that plank of the door of the house was broken. The appellant has already ran away. After this, according to prosecution Sheshrao (PW2) again resumed his work at ginning factory. Thereafter Gokarna, sister of the present appellant came inside the house and extended threats to deceased Chanda and asked Chanda to take kerosene, pour it on her person and thereafter she committed suicide.
4. It is the further case of the prosecution that after admission of Chanda in the hospital her statement was recorded by Executive Magistrate,Mohan Wamanrao Paturkar(PW5) after obtaining the medical certificate from doctor about the condition of Chanda to give her statement.
5. Subhash Mahadeorao Anasane(PW4) lodged report (Exh.39) and on the basis of said crime was registered vide Crime ::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:11:02 ::: apeal no.63.2001 4 No. 176/1993 for the offence punishable under Sections 452,354, 506 r/w Section 34 of the Indian Penal Code. The printed F.I.R. is at Exh.40. The spot panchnama(Exh.20) was drawn by police. The articles were also seized under different seizure memos. Chanda expired in the hospital on 21/12/1993. Her death report is at Exh.52. Thereafter post mortem was conducted on her dead body and post mortem report is at Exh.27. After the death of Chanda offence was also converted for the offence punishable under Section 306 of the Indian Penal Code.
6. A charge was framed against present appellant and his sister Gokarna vide Exh.9 for the offence punishable under Sections 452,354,306 and 506 r/w Section 34 of the Indian Penal Code. The prosecution has examined various witnesses to bring home the guilt of both the accused persons.
7. After a full trial, learned Judge of the trial Court acquitted Gokarna from all offences for which she was charged. The learned judge of the Court below also acquitted the present appellant of the offence punishable under Sections 306 and 506 of the Indian Penal Code. However, he convicted the present ::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:11:02 ::: apeal no.63.2001 5 appellant for the offence punishable under Sections 354 and 452 of the Indian Penal Code.
8. I heard Shri R.M.Daga, learned counsel for the appellant and Smt.T.H.Udeshi, learned Addl.P.P. for the State. With their able assistance, I have gone through the notes of evidence and other relevant documents on record.
9. Though Gokarna and the present appellant was acquitted of the offence punishable under Section 306 of the Indian Penal Code, no appeal is preferred by the State against them. Thus, their acquittal has attended finality.
10. The prosecution evidence in so far as offence under Sections 354 and 452 of the Indian Penal Code is concerned prosecution relied on the evidence of Santosh(PW1). Learned Addl.P.P. also tried to derive some force in her submission by relying on dying declaration (Exh.51).
11. As per the said dying declaration at 4'O clock in the morning appellant came by breaking open the door and caught ::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:11:02 ::: apeal no.63.2001 6 hold hand of Chanda. As per the evidence of Santosh(PW1) after appellant entered into room where deceased was sleeping he closed the door from outside and chained the same and thereafter he ran towards ginning factory to inform the incident to his father. It is also the claim of Santosh(PW1) that he noticed holding of hand of deceased by the present appellant and it was narrated by him to his father Sheshrao(PW2). It is the further claim of Santosh(PW1) that when he and his father returned to house he noticed that plank of door was broken and appellant was not present there. Thus there is similarity in the dying declaration and the evidence of Santosh(PW1) is in respect of breaking open the door. However, spot panchnama(Exh.20) falsifies the said claim made in the prosecution case. The spot panchnama (Exh.20), a contemporaneous document was drawn by the investigating officer in presence of panchas is totally silent about noticing any broken door or noticing the stains of kerosene on the floor. Further, investigating officer Subhash Anasane(PW4) has stated from the witness box as under:
" at the time of preparation of the spot panchnama I did not notice kerosene on the soil and so also the broken door"::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:11:02 ::: apeal no.63.2001 7
12. Thus, the claim of Santosh(PW1) that appellant ran away from the spot after breaking open the door is clearly falsified by the contemporaneous document the spot panchnama (Exh.20) and the version of the investigating officer (PW4) who drew the spot panchnama immediately on 19/12/1993. Further, the evidence of Santosh(PW1) appears to be doubtful since he claims that earthen pot kept in the bathroom was also broken. This version is also not corroborated from the spot panchnama(Exh.20) or even from the version of investigating officer (PW4) who could not notice any broken earthen pot which is termed as 'Gangal' in the evidence of Santosh(PW1). In my view, the prosecution has not proved the place of incident at all by cogent evidence as it can be seen from the spot panchnama(Exh.20) and also from the evidence of investigating officer (PW4). In that view of the matter in my view even the conviction of the appellant for the offence punishable under Sections 354 and 452 of the Indian Penal Code is also not proved. Since the evidence of Santosh (PW1) was no found trustworthy and does not inspire confidence hence, appeal is allowed.
Hence, I pass the following order.
::: Uploaded on - 01/07/2017 ::: Downloaded on - 02/07/2017 01:11:02 ::: apeal no.63.2001 8 ORDER 1) Appeal is allowed. 2) The judgment and order of conviction passed by
learned 2nd Additional Sessions Judge,Yavatmal, dated 26/2/2001 in S.T.No.76/1994 convicting the appellant for the offence punishable under Sections 354 and 452 of the Indian Penal Code is hereby set aside.
3) Appellant is acquitted of the offence punishable under Sections 354 and 452 of the Indian Penal Code.
4) His bail bonds stand cancelled.
JUDGE
(kitey)
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