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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.399 of 2003
Dinkar Namdeo @ Dhnyandeo Khandare
aged about 26 years,
R/o.-Dahigaon Gawande, District Akola.
Presently in Central Prison Amravati. .... Appellant.
-Versus-
The State of Maharashtra,
through P.S. Anjangaon Surji,
District Amravati. .... Respondent.
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Mr. Vinay Dahat, Counsel for appellant.
Mrs. Shamsi Haider, Additional Public Prosecutor for State.
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Coram : Mrs. Swapna Joshi, J.
th Dated : 07 September, 2017.
ORAL JUDGMENT This appeal has been preferred by the appellant against the judgment and order passed by the learned IInd Adhoc Assistant Sessions Judge, Achalpur in Sessions Trial No.24 of 2002 delivered on 03-07-2002, thereby the learned trial Judge had convicted the accused (hereinafter referred as the 'appellant') for the offence punishable under Section 420 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.100/-, in default, to suffer rigorous imprisonment for 15 days.
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2] The appellant further convicted for the offence punishable
under Section 366 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.100/-, in default, to suffer rigorous imprisonment for 15 days. 3] I have heard Mr. Vinay Dahat, the learned Counsel for the appellant and Mrs. Shamsi Haider, the learned Additional Public Prosecutor for the State.
4] The facts leading to prefer this appeal can be summarised as under :-
Complainant Ramdas was residing at village Takerkheda More along with his family member. Prosecutrix (PW-2) is his daughter who was aged about 18 years at the time of incident. On 11-04-2001, at about 9 pm, the appellant went to the house of the complainant. He informed his name as Vinod Shirole and stated that he hails from Takali Katepurna, District Akola. The appellant showed acquaintance of close relatives of the complainant and he halted during that night at the house of the complainant. The further case of the prosecution is that, the appellant told the complainant that he would help him for seeking loan in the name of his daughter (PW-2) from the District Industrial Center, Amravati. He also said he would see bridegroom for engagement of prosecutrix (PW-2). 5] On 12-04-2001, in the morning at about 2 pm, the appellant along with complainant Ramdas (PW-1) and prosecutrix (PW-2) went to Amravati. The appellant asked prosecutrix (PW-2) and Ramdas (PW-1) to sit outside the office. Thereafter, he took prosecutrix in the office. After ::: Uploaded on - 18/09/2017 ::: Downloaded on - 20/09/2017 23:43:39 ::: 3 Judg.070917 apeal 399.03.odt half an hour the appellant came out of the office and told that the work of loan proposal of PW-2 has been done. The appellant then told PW-1 that it is necessary to open the account in the name of PW-2 for securing a loan. Thereafter, the appellant took the amount of Rs.130/- from PW-1 for the loan proposal. It is the case of the prosecution that, thereafter, again the appellant took away PW-2 with him on the pretext of obtaining the loan from bank. The PW-1 waited there for the appellant and his daughter (PW-2), when they did not return up to 8.30 pm, he proceeded to the Police Station to lodge the complaint against the appellant. 6] At the relevant time, PSI-Karim Beg (PW-9) was attached to Police Station Anjangaon. He registered the offence on the basis of the complaint lodged by PW-1. He recorded the statements of the witnesses and after completion of investigation, he filed chargesheet in the Court of JMFC. The learned trial Judge framed the charge. After conducting the trial and on analysis of the evidence, the learned trial Judge was convicted the appellant as aforesaid.
7] Mr. Dahat, the learned Counsel for the appellant contended that, the appellant has been falsely implicated in the case and the judgment and order passed by the learned trial Judge be set aside. 8] Mrs. Shamsi Haider, learned APP submitted that, the learned trial Judge has rightly convicted the appellant after believing the testimony of the prosecution witnesses.
9] With the assistance of the learned APP, I have gone through the case papers carefully. The prosecution has heavily relied upon the ::: Uploaded on - 18/09/2017 ::: Downloaded on - 20/09/2017 23:43:39 ::: 4 Judg.070917 apeal 399.03.odt testimony of Ramdas (PW-1) who is the complainant and prosecutrix (PW-2) who is the victim. The prosecution further relied upon the testimony of Deepmala (PW-3) who was also allegedly cheated by the appellant in the same manner, Duryodhan (PW-4) who is the father of Deepmala, Brahamanand (PW-5) panch witness on the point of spot panchanama, Sk. Karim (PW-6) auto rickshaw driver, Sudhir (PW-7) Special Judicial Magistrate, who conducted the identification parade of the appellant, Vijay (PW-8) panch witness of the identification parade and Karim Beg (PW-9) the Investigating Officer.
10] As far as the testimony of Ramdas (PW-1) is concerned, he is the father of victim. He stated that, at the time of incident, his daughter was aged about 16 years and on 11-04-2001 the appellant had come to his house at 9.30 pm. The appellant told PW-1 that he had come along with his brother-in-law who is from Pathrot. He further told to PW-1 that his brother-in-law had left him and had gone and therefore he had come to his house. The appellant told the relations of the relatives of his wife and therefore he kept faith on the appellant. According to PW-1, the appellant asked about performing of the marriage of daughter of PW-1 i.e. PW-2. However, PW-1 informed him that he was not ready to perform the marriage of his daughter, due to financial crisis. On this the appellant said that, he would arrange for the loan in the name of his daughter PW-2. PW-1 told him that he did not require any loan. The appellant said that, PW-2 will get subsidy available in D.I.C. under the scheme Ramabai Ambedkar. PW-1 kept the faith upon the appellant and accordingly on the ::: Uploaded on - 18/09/2017 ::: Downloaded on - 20/09/2017 23:43:39 ::: 5 Judg.070917 apeal 399.03.odt next day morning PW-1 along with his daughter PW-2 and the appellant proceeded to Amravati. On reaching to Amravati at about 4 pm, the appellant asked PW-1 and PW-2 to sit in front of the office located at Maltekdi, Amravati. The Appellant took zerox copy of the ration card and caste certificate and had gone towards the office. The appellant returned from the office after about one hour and informed PW-1 and PW-2 that their work is done. Thereafter, the appellant told that they would open the bank account in the name of PW-2 and for that purpose he required amount of Rs.130/-. Accordingly PW-1 paid the said amount to the appellant. Thereafter, the appellant asked PW-1 to sit there and he took away PW-2 for the purpose of opening the bank account in her name. PW-1 sat there at about 8.30 pm and waiting for the appellant and his daughter. However, they did not return till 8.30 pm, he returned back to his village Takarkheda More. He informed about the said incident to his son-in-law and the villagers that the appellant had kidnapped his daughter. Thereafter, during the said time PW-1 proceeded to Anjangaon Police Station and lodged his complaint (Exhibit-9).
11] On careful scrutiny of the testimony of PW-1 it is noticed that, there are certain improvements with regard to the fact that the appellant told him that he was in service at District Industrial Center, Amravati and he would sanction the loan in the name of PW-2. PW-1 also made an improvement with regard to the fact that the appellant told him that he had come along with his brother-in-law from Pathrot and his brother-in-law left him there and he came to his house. Further the improvement was ::: Uploaded on - 18/09/2017 ::: Downloaded on - 20/09/2017 23:43:39 ::: 6 Judg.070917 apeal 399.03.odt pointed out that the appellant said to PW-1 that he would sanction the loan in the Scheme of Ramabai Ambedkar from D.I.C. and the improvement also suggested with regard to the fact that the appellant took Jyoti to the office and he waited there up to 8.30 pm. The tenor of the cross examination would reveal that the defence of the appellant was of total denial. On careful scrutiny of the testimony of PW-1, nothing has been elicited from his cross examination.
12] The testimony of PW-1 is supported by PW-2 who is the victim of the alleged offence. According to prosecutrix (PW-2), on 11-04-2001, the appellant arrived at her house. He had showed relations of the relatives of her mother. The appellant told that he acquainted with her maternal uncle and all the relatives of her mother and thus the appellant gain faith of PW-2. The appellant stayed in the house of PW-2 for one night. In the next morning at about 12 o'clock the appellant told that, he would draw the loan in her name from the D.I.C. from the funds of M.P. and M.L.A. He said that it is necessary to go to Amravati for that purpose. Therefore, she proceeded to Amravati along with PW-1 and the appellant. After reaching to the office located at Amravati, PW-2 and her father sit outside the office. The appellant went inside the office and brought some documents. The appellant came near them and told it is necessary to open the bank account in her name. The appellant asked PW-1 to stay there and took PW-2 long with him for opening the bank account in her name. PW-2 stated that the appellant took her in auto rickshaw to Sai Nagar. They went one office. The office was closed. ::: Uploaded on - 18/09/2017 ::: Downloaded on - 20/09/2017 23:43:39 :::
7 Judg.070917 apeal 399.03.odt However, the PW-2 got frightened as it was dark. She asked the appellant that he should reach her to her father. The appellant asked her not to get frightened and he would reach her to her father. Thereafter, the appellant brought PW-2 from Sai Nagar to one chowk. They got down at that square from the auto. Thereafter, the appellant took her to one building. PW-2 realised some foul play, therefore, she returned back towards the auto rickshaw. Three Auto rickshaw drivers gathered at that place. She narrated the entire incident to the auto rickshaw drivers. The auto rickshaw driver told her to point out the place where her father waiting for her. PW-2 went to the place where father of PW-2 was waiting for her by the said auto rickshaw. However, she did not find her father, thereafter PW-2 went to the house of auto rickshaw driver. She stayed in the house of auto rickshaw driver during that night and on the next day the auto rickshaw driver along with his wife and children reached PW-2 to her village Takarkheda More.
13] PW-2 further stated that the police called her at Central Jail, Amravati. The S.J.M. Amravati had shown seven persons and told her for identifying the appellant from those seven persons. It was suggested to PW-2 in the cross examination that, the appellant did not outrage her modesty and did not behave with her indecently. PW-2 answered the said suggestion in affirmative. No discrepancies are noticed in the cross examination of PW-2. The testimony of PW-2 corroborates the testimony of PW-1 on material aspects.
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14] The prosecution case supported by the testimony of
Sk. Karim (PW-6) who is the auto rickshaw driver. PW-6 stated that, on 12-04-2001, at 7.00 pm, he was at Rajkamal chowk and waiting for the passengers. He noticed one girl. He came near her, that time the girl told him that one boy kidnapped her. She was in a frightened condition. Thereafter, PW-6 along with PW-2 went towards one lodge nearby Rajkamal Galli and they saw that the appellant running towards the railway station. The girl requested PW-6 for taking her to reach her father. Thereafter, PW-6 along with PW-2 went towards Maltekdi. However, the father of PW-2 was not seen at that place. Thereafter, PW-6 took PW-2 to his house at about 8.30 pm. and she stayed in the house of PW-6 with his wife. Therefore, PW-6 along with his wife and PW-2 went to Takarkheda More to reach PW-2 to her house. It was asked to PW-6 as to why he had not lodged report to Police against the appellant. On this PW-6 answered that PW-2 informed him not to lodge any report, therefore, he had not lodged any complaint against the appellant. Few discrepancies were pointed out in the testimony of PW-6 about the fact that he saw the appellant running away towards railway station. They stood at the S.T. stand Amravati up to 8.30 pm. In my opinion, these discrepancies are minor in nature and do not go to the root of the prosecution case. There is nothing to doubt the testimony of PW-6 as he is an independent witness and whatever the incident occurred, he has deposed before the Court in natural manner. He has not exaggerated the version at all. The testimony of PW-6 is corroborated with the testimony of PW-2. The testimony of ::: Uploaded on - 18/09/2017 ::: Downloaded on - 20/09/2017 23:43:39 ::: 9 Judg.070917 apeal 399.03.odt PW-1, PW-2 and PW-6 clearly indicates that the appellant stayed in the house of PW-1 and PW-2 for one night. He impressed upon them that he was distantly related to them. He gain confidence of PW-1 and PW-2 and promised them, he would obtain loan for PW-2, for the purpose of her marriage. Thereafter, by influencing PW-1 and PW-2 he took them to Amravati to sanction the loan in the Scheme of Ramabai Ambedkar from D.I.C. In view of above, it appears that the appellant had ill intention to take away the victim with him. The appellant has some ill intention in his mind, therefore, he took her in the evening in one building where PW-2 realised some foul play. Therefore, she immediately left that place and took assistance of the auto rickshaw driver and on the next day she returned back to her house. The appellant has taken undue advantage of the situation and tried to take away the victim.
15] The prosecution has examined other witness namely; Deepmala (PW-3) who was also cheated in the same manner by the appellant. In her evidence she stated that the appellant distantly related to her. He promised PW-3 that he would obtain loan for her and for that purpose it was necessary for her to go with him to Akola for putting the signature on the loan application. PW-3 along with her father accompanied appellant to Akola. The appellant told that the office is situated at here and there and ultimately took her to the bus stand of Akola. Then the appellant took her in the Amravati bus. The appellant brought her to Amravati by bus. They stayed in a lodge during that night at Amravati. During that night the appellant asked her to perform marriage ::: Uploaded on - 18/09/2017 ::: Downloaded on - 20/09/2017 23:43:39 ::: 10 Judg.070917 apeal 399.03.odt with him. PW-3 started weeping. The appellant stated that he would reach to her at her parents house. Accordingly, PW-3 left that place and reached her place at Lehegaon. Thus, on careful scrutiny of the evidence on record it is revealed that the appellant had cheated PW-3 in a manner which he cheated Jyoti (PW-2).
16] So far the the allegations of cheating is concerned, the ingredients of Section 420 of IPC are as under :-
"Ingredients of section.-The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."
17] Thus, the burden lies on the prosecution to prove that the victim was induced by the appellant in a manner to cheat. From the testimony of PW-1 and PW-2 it is amply clear that the appellant had ill intention to take away the victim with him, to seduce her and to commit sexual intercourse with her.
18] In my opinion, the learned trial Judge had properly appreciated the facts brought on record by the prosecution. In view of the fact that, the learned trial Judge has rightly appreciated the evidence ::: Uploaded on - 18/09/2017 ::: Downloaded on - 20/09/2017 23:43:39 ::: 11 Judg.070917 apeal 399.03.odt brought on record and rightly passed the order, consequently, the appeal fails and it is liable to be dismissed. Hence, the following order is passed:-
O r d e r
(a) Criminal Appeal No. 399 of 2003 is dismissed.
(b) The judgment and order dated 03-07-2002 delivered by learned IInd Adhoc Assistant Sessions Judge, Achalpur in Sessions Case No.24 of 2002 stands confirmed.
(c) The sentence of appellant for the offences punishable under Sections 366 and 420 of the IPC is maintained.
(d) The appellant is on bail. His bail bond stands
cancelled. He be directed to surrender before
the learned IInd Adhoc Assistant Sessions Judge, Achalpur to undergo the remaining period of sentence. If he does not surrender within a period of four weeks from today, the learned trial Court is directed to take appropriate action in accordance with law.
(e) Muddemal property be dealt with as directed by trial Court after the appeal period is over.
JUDGE Deshmukh ::: Uploaded on - 18/09/2017 ::: Downloaded on - 20/09/2017 23:43:39 :::