Sanjay Jayram Gaikwad vs The State Of Mah.Thr.P.S.O.Ner
2017 Latest Caselaw 3679 Bom

  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
 -------------------------------------------------------------------------------------------
 Shri R.M.Daga,Advocate for appellant. 
 Smt.T.H.Udeshi,Addl.P.P. for State.
 -------------------------------------------------------------------------------------------

                               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

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

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

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

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

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"

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.

                               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)