Parmeshwar Sukhdeo Khedkar vs The State Of Maharashtra
2021 Latest Caselaw 12824 Bom

                                                              414-14 CriAppeal
                                      1

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO. 414 OF 2014

 Parmeshwar S/o Sukhdeo Khedkar
 Age : 25 Years, Occu.: Labourer,
 R/o : Karodi, Tq. Pathardi,
 District Parbhani                             ... Appellant
                                               (Orig. Accused)

         Versus

 The State of Maharashtra
 Through Police Station Officer,
 Police Station Pathardi,
 District Ahmednagar                           ... Respondent

                                      ....

 Mr. K.D. Bade Patil Advocate for the Appellant
 Mr. Rajendra V. Dasalkar, A.P.P. for Respondent / State

                                      ....

                               CORAM : V. K. JADHAV AND
                                       SHRIKANT D. KULKARNI, JJ.

DATE : 08th September, 2021

ORAL JUDGMENT (PER V.K. JADHAV, J.) :-

1. This Appeal is directed against the judgment and order of

conviction passed by the Additional Sessions Judge, Ahmednagar

dated 14.02.2014 in Sessions Case No. 214 of 2012, convicting

thereby the appellant-accused for the offence punishable under

Section 302 of the Indian Penal Code.

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2. Brief facts of the prosecution case, are as follows:

a. The informant Bhaginath (PW-3) is the father of deceased

Suvarna. Deceased Suvarna was given in marriage to the appellant-

accused Parmeshwar and their marriage was performed on

14.04.2012. On 05.05.2012 at about 9.00 p.m., Eknath Kisan Aghav

i.e. the uncle of PW-3 Bhaginath expired and on 06.05.2012 his

funeral was performed at village Karodi. Deceased Suvarna did not

remain present for the said funeral. On 07.05.2012, there was ash

immersion ceremony and deceased Suvarna had attended the same

along with her parents-in-law. The said ash immersion ceremony had

taken place at Paithan. While returning from Paithan along with the

mother and other family members, deceased Suvarna went to her

matrimonial home. At that time, the appellant-accused was present in

the house. He had questioned Suvarna as to why she had gone to

Paithan without his consent. Deceased Suvarna clarified that she had

gone to Paithan with permission of her in-laws. However, the

appellant-accused was not satisfied and he started abusing and

threatening Suvarna and also assaulted her. However, her mother

Kausalyabai, Tukaram Tandale and Nandabai Tandale, being relatives

of deceased Suvarna, had intervened into the matter, convinced the

appellant-accused and returned to Pirewadi.

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b. On the very next day i.e. on 08.05.2012 at about 5.00 a.m.,

PW-6 Bhagwan, who is the brother-in-law of PW-3 Bhaginath, was

informed by one Bhimrao that something odd happened in the house

of the appellant-accused. Hence, PW-6 Bhagwan went to the house of

deceased Suvarna and noticed that she was lying dead in the house

having a ligature mark on her neck. PW-6 Bhagwan had informed

about the same to PW-3 Bhaginath. PW3- Bhaginath, his wife and

other family members had gone to the house of deceased Suvarna.

They also noticed that deceased Suvarna was lying dead in the house

having ligature mark around her neck. On inquiry, the appellant-

accused had disclosed that Suvarna died due to shock of cooler wire

to her neck. However, the parents of the appellant-accused informed

them that appellant-accused and deceased Suvarna were slept in the

house and in the early morning, the appellant-accused opened the

door and they saw Suvarna lying dead in the house having ligature

mark on her neck.

c. Thus, PW-3 Bhaginath went to the Patithan Police Station and

lodged the complaint on 08.05.2012 Exhibit 28 alleging therein that

the appellant-accused has committed murder of his daughter Suvarna

as the appellant-accused was annoyed with the fact that Suvarna had

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gone to Paithan for immersion of ash ceremony without his consent

on 07.05.2012.

d. On the basis of the said complaint dated 08.05.2012 Exhibit

28 lodged by PW-3 Bhaginath, crime no.121 of 2012 came to be

registered for the offence punishable under Sections 302, 323, 504,

506 of the Indian Penal Code against the appellant-accused.

e. PW-8 PI Bhagwat Jaibhay has conducted the investigation of

the said crime. He has prepared the inquest panchanama Exhibit 23,

spot panchanama Exhibit 25 in presence of panchas. He has also

recorded statements of the witnesses. On 11.05.2012, the appellant-

accused, while in police custody, had given a statement that he is

ready to produce the cable wire used in commission of the offence.

The said statement bears signature of the Investigating Officer so also

signatures of the appellant-accused and the panchas, which is at

Exhibit 39. The cable wire used in commission of the crime was seized

under the panchanama Exhibit 40. PW-8 PI Bhagwat Jaibhay has also

collected the postmortem report Exhibit 31 and C.A. report Exhibit 42.

After completion of the investigation, the Investigating Officer has

submitted charge-sheet against the appellant-accused.

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f. The learned Additional Sessions Judge, Ahmednagar has

framed charge for the offence punishable under Section 302 of the

Indian Penal Code against the appellant-accused vide Exhibit 8. The

appellant-accused pleaded not guilty and claimed to be tried.

g. According to the defence of the appellant-accused, deceased

Suvarna got annoyed since the appellant accused abused and

threatened her in presence of the family members from her parents'

side for the trifling reason as to how she went to Paithan for attending

immersion of ash ceremony and thus, she had committed suicide in

the house by hanging herself to the angle of the roof of the house by

using nylon rope.

h. The statement of the appellant-accused under Section 313 of

the Criminal Procedure Code was also recorded and after hearing both

the sides, the learned Additional Sessions Judge, Ahmednagar by

judgment and order dated 14.02.2014 in Sessions Case No.214 of

2012 has convicted the appellant-accused Parameshwar for the

offence punishable under Section 302 of the Indian Penal Code and

sentenced him in terms of the operative part of the order which reads

as under :-

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"1. The accused Parameshwar Sukhdeo Khedkar, Age 24 yrs., R/o Karodi, Taluka Pathardi, District Ahmednagar is convicted for the offence punishable under section 302 of the Indian Penal Code and he is sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/- (Rs. Five Thousand only) i.d. to suffer R.I. for three months vide section 235(2) of the Code of Criminal Procedure.

2. The accused is in jail since 8-5-2012 till today. He is entitled to set off under section 428 of the Code of Criminal Procedure, for the period of detention in jail so far.

3. The muddemal property - (P.R.No.54/2013) cable wire being worthless, be destroyed after appeal period is over."

3. Being aggrieved by the same, the appellant/accused

Parameshwar has preferred this appeal.

4. Learned counsel for the appellant-accused submits that the

prosecution case entirely rests upon circumstantial evidence and there

is no direct evidence in this case. Learned counsel submits that the

prosecution has failed to establish the motive on the part of the

appellant-accused to commit murder of his wife deceased Suverna.

Learned counsel submits that the incident had allegedly taken place

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within a period of 24 days after marriage. There are no allegations

about ill-treatment on account non-fulfillment of any unlawful

demand or dowry. There is only one incident, which the appellant-

accused admits, that on 07.05.2012 after attending the immersion of

ash ceremony at Paithan, when deceased Suvarna returned to her

matrimonial home along with the family members from her parents'

side, the appellant-accused had shown his disappointment on the

count that she went to attend the said ceremony without his consent.

Learned counsel submits that it is very unlikely on the part of the

appellant-accused to commit murder of his wife within 24 days of

marriage for such a trifling reason. Learned counsel submits that there

is no satisfactory evidence about homicidal death and the possibility

of suicidal death cannot be ruled out. Learned counsel submits that

there is no chain of circumstantial evidence established by the

prosecution to point out the guilt of the appellant-accused.

5. Learned counsel for the appellant-accused has vehemently

submitted that section 106 of the Indian Evidence Act does not relieve

the prosecution's initial burden to prove its case beyond reasonable

doubt. Only when the prosecution case has been proved, the burden

in regard to such facts which were within the special knowledge of the

accused may be shifted on the accused for explaining the same.

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Learned counsel submits that it is for the prosecution to prove the

involvement of the accused beyond doubt before taking recourse to

Section 106 of Indian Evidence Act. Learned counsel submits that so

far as recovery of the wire allegedly used in commission of offence at

the instance of the appellant-accused is concerned, the panch witness

PW-9 Jalindar Dahiphale has initially shown his ignorance about

disclosure statement made by the appellant-accused. However, during

his cross-examination at the hands of learned APP, the said witness

PW-9 Jalindar has admitted the contents of the memorandum of

recovery panchanama. Learned counsel submits that though the wire

allegedly used in commission of offence is shown to have been

recovered at the instance of the appellant-accused, however, there is

no connecting evidence in respect of the recovery of the said wire.

Learned counsel submits that the appellant-accused is entitled for the

benefit of doubt. Learned counsel in the alternate submits that since

there was no motive and probably there was no intention to kill

deceased Suvarna, and if the incident had taken place in the heat of

passion during the course of quarrel between the husband and wife,

then the case does not fall under Section 302 of IPC and it may fall

under Section 304 of IPC.

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6. Learned counsel for the appellant-accused, in order to

substantiate his contentions, placed reliance on the following cases :-

1. State of U.P. Vs. Indrajeet alias Sukhatha reported in (2000) 7 SCC 249.

2. Ram Karan and others Vs. State of Uttar Pradesh reported in (1982) 2 SCC 184.

3. Harendra Nath Mandal Vs. State of Bihar reported in (1993) 2 SCC 435.

4. State of U.P. Vs. Virendra Prasad reported in (2004) 9 SCC 37.

7. Learned APP submits that there is evidence about the

homicidal death. Learned APP has pointed out from the postmortem

report Exhibit 31 that there was ligature mark horizontal in nature

around the neck and though the concerned Medical Officer, who has

conducted the postmortem examination, was subjected to cross-

examination by the defence counsel at length, however, the

prosecution has proved beyond reasonable doubt that deceased

Suvarna died a homicidal death in her matrimonial home. Learned

APP submits that the prosecution case rests upon circumstantial

evidence and the prosecution has established the motive in this case.

Learned APP submits that though the span was short, as deceased

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Suvarna found in dead condition in her matrimonial home within 24

days after her marriage, however, the appellant-accused, who is a hot

tempered person, got annoyed because of the fact that deceased

Suvarna had gone to Paithan to attend immersion of ash ceremony

without his consent. In the night itself, deceased Suvarna was found in

dead condition in her bedroom having ligature mark around her neck

horizontal in nature. Learned APP submits that it was a custodial

death. The appellant-accused had committed crime in complete

secrecy in the house. Thus, the nature and amount of evidence

required to establish the charge cannot be of same degree as required

in other cases of circumstantial evidence. In view of Section 106 of the

Indian Evidence Act, corresponding burden is on the appellant-

accused to give a cogent explanation as to how the homicidal death of

deceased Suvarna occurred in the matrimonial home.

8. Learned APP submits that in the instant case, the appellant-

accused has submitted his statement in writing in reply to his

examination under Section 313 of the Code of Criminal Procedure,

wherein he has taken a defence that deceased Suvarna had committed

suicide by hanging herself to the angle of the roof with the help of a

nylon rope. Learned APP submits that the explanation given by the

appellant-accused is false to his knowledge. The said ligature mark

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over the neck was not vertical in direction but it was horizontal in

direction. Thus, the said aspect itself rules out the possibility of

suicidal death. Learned APP further submits that nothing was found

during the course of drawing spot panchanama indicating that

deceased Suvarna might have committed suicide by hanging herself to

the angle of the roof of the house by using nylon rope. Learned APP

on the other hand submits that at the instance of the appellant-

accused the wire was recovered and seized and the same had been

used for strangulating the neck of deceased Suvarna and thus the

ligature mark on her neck appeared horizontal in nature. Learned APP

submits that as per the prosecution evidence, the appellant-accused

had disclosed to the parents of deceased Suvarna that she died due to

shock of cooler wire to her neck.

9. Learned APP, in order to substantiate his contentions, placed

reliance on the judgment of Trimukh Maroti Kirkan Vs. State of

Maharashtra reported in 2007 Cri.L.J. 20.

10. We have perused the material exhibits tendered by the

prosecution, the evidence of the prosecution witnesses, the statement

of the appellant-accused recorded under Section 313 of Criminal

Procedure Code, the evidence of the appellant-accused himself and

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the impugned judgment. After giving our thoughtful reflection to the

matter, we are wholly satisfied that there is no substance in this

appeal and the same must be dismissed.

11. Though the learned counsel for the appellant-accused has

vehemently submitted before us that the prosecution has not

satisfactorily proved the homicidal death and brought to our notice as

to how the concerned Medical Officer, who has conducted the

postmortem examination on the dead body of deceased Suvarna,

being an inexperienced Medical Officer, committed a mistake,

however, in our considered opinion the prosecution has proved the

homicidal death in this case.

12. The prosecution has examined PW-4 Dr. Anita Santosh

Nimbekar. On 08.05.2012, PW-4 Dr. Anita had performed postmortem

examination on the dead body of deceased Sonali alias Suvarna

Parameshwar Khedkar. PW-4 Dr. Anita had noted the following

injuries on the dead body of deceased Suvarna :-

" Ligature mark -

- imprint ligature mark situated at the level of thyroid going horizontally, encircles the neck completely, 7cm. below the right mastoid level and 6.5 cm. below the left mastoid level. This is also sign of strangulation.

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- ligature mark prominent anteriorly (dark brown colour groove) at the level of thyroid runs both lateral aspects, 18 cm. in length, 1 cm in width and 3 mm in depth with dark brown in colour with ecchymosed edges of ligature mark and on posterior aspect ligature mark slightly faint than anterior mark.

- Total length of ligature mark was 30 cm. and width 1 cm.

- Abrasion over neck on left side approximately 1.5 cm."

13. In her opinion the said injuries were ante-mortem in nature.

She has also noted that superior horn of thyroid cartilage was splitted.

On cut section, laryngeal space, trachea filled with blood tinged fine

froth. According to her, in strangulation case, such signs are noted.

She has further noted that right and left lungs were oedematus and on

cut section, fine whitish froth seen with blood tinged spots. Further,

the neck vessels were engorged with blood. On cut section on neck,

rupture of right sided carotid artery seen. The prosecution has proved

the postmortem report Exhibit 31. PW-4 Dr. Anita has further opined

that there were signs of struggles as indicated in column no.16 of the

postmortem report. In her opinion such type of strangulation can be

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caused by cable wire shown to her before the Court, which is

Muddemal article no.1.

14. PW-4 Dr. Anita was subjected to cross-examination at length by

the defence counsel. Though she has admitted that this was her first

case of homicidal strangulation for conducting postmortem, however,

she has positively answered the questions during her cross-

examination. She has explained that except abrasion over neck on left

side, there was no external injury showing sign of violence. According

to her, such abrasion can be possible due to knot of the rope used for

ligature or it can be caused in struggle also. She has also explained in

her cross-examination that the ligature mark was prominent at front

side and it was faint at the back side. She agreed that in case of

suicidal death only, ligature mark will be prominent at front side and

it becomes faint at the back side. She has also explained that in

forceful homicidal strangulation, thyroid cartilage can be splitted and

thyroid bone need not be fractured. According to her, in homicidal

strangulation, fracture of laryngeal cartilage and tracheal ring are

common. PW-4 Dr. Anita has further explained that she found superior

horn of thyroid cartilage splitted and the word 'splitted' is used for

fracture. She has further substantiated her contention that the

superior horn is not a bone and the thyroid cartilage is also not a

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bone. Thus, she has justified using of the word 'splitting'. There is

nothing in the cross-examination to discard the expert's evidence and

to draw any other inference about death of deceased Suvarna.

15. It appears that the prosecution case entirely rests upon

circumstantial evidence. Learned counsel for the appellant-accused

has vehemently submitted that motive in this case is very weak. The

marriage of deceased Suvarna was performed with appellant-accused

on 14.04.2012 and deceased Suvarna died in her matrimonial home

on 08.05.2012 i.e. within 24 days from the date of her marriage.

Learned counsel pointed out that there are no allegations of ill-

treatment on account of any demand of dowry or any unlawful

demand. It is true that the prosecution has come with only one

incident occurred on 07.05.2012. However, we find from the evidence

of the prosecution witnesses that the appellant-accused got

disappointed to such an extent that he has not only questioned

deceased Suvarna as to how she had gone to Paithan without his

permission and even though deceased Suvarna explained about the

same, the appellant-accused threatened deceased Suvarna in presence

of the family members from her parents' side, but also abused and

assaulted her. Thus, the family members from her parents' side i.e. her

mother, cousin and uncles have rescued her and convinced the

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appellant-accused. It appears that the appellant-accused is a hot

tampered person. In our considered opinion that the prosecution has

established the motive in this case.

16. It is not disputed that the appellant-accused was very well

present in his house during the night of 07.05.2012 to 08.05.2012.

The appellant accused has also admitted the said fact in his cross-

examination under Section 313 of the Code of Criminal Procedure and

he has also submitted his written statement Exhibit 45 in which he has

admitted that he was present in his house during the entire night and

in the morning. He has noticed that deceased Suvarna had committed

suicide by hanging herself to the angle of roof of the house with the

help of nylon rope. He immediately called his parents and removed

the body of deceased Suvarna from the hanging rope and also

removed the nylon rope. The said nylon rope was lying in his house

itself. We already discussed in the forgoing paras that nothing was

found during the course of drawing spot panchanama indicating the

other possibility of death. On the other hand, the prosecution has

proved homicidal death of deceased Suvarna beyond reasonable

doubt. Further, the wire used in the commission of crime came to be

seized at the instance of the appellant accused. PW-4 Dr. Anita has

also opined that such ligature mark around the neck is possible by

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using the wire produced before the Court. Further, the appellant-

accused has given false explanation about the death of deceased

Suvarna in her matrimonial home.

17. In the case of Trimukh Maroti Kirkan (supra) relied upon by

the learned APP, the Supreme Court in paragraph no.12 of the

judgment has made following observations :-

"12. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances

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of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads : 2003 AIR SCW 4065

(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him."

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

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18. In the case of State of West Bengal Vs. Mir Mohammad Omar

and Ors. reported in (2000) 8 SCC 382 the Supreme Court has dealt

with the provisions of Section 106 of the Evidence Act and laid down

the following principles in paragraph nos. 31 to 34 of the reports :

2000 AIR SCW 3230.

"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognized by the law for the court to rely on in conditions such as this.

33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from

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other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.

34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody."

Applying the aforesaid principle, this Court while maintaining the conviction under Section 364 read with Section 34 IPC reversed the order of acquittal under Section 302 read with Section 34 IPC and convicted the accused under the said provision and sentenced them to imprisonment for life."

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19. In the case of State of Rajasthan V. Thakur Singh reported in

2014 AIR (SCW) 4479, in paragraph nos.22 and 26, the Supreme

Court has made the following observations :-

22. The law, therefore, is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts.

26. In our opinion, the High Court has very cursorily dealt with the evidence on record and has upset a finding of guilt by the Trial Court in a situation where Thakur Singh failed to give any explanation whatsoever for the death of his wife by asphyxia in his room. Moreover, the very fact that all the relatives of Thakur Singh turned hostile clearly gives room for suspicion and an impression that there is much more to the case than meets the eye. Even the complainant, Himmat Singh who squarely blamed Thakur Singh (in the FIR) for the murder of his wife, turned hostile to the extent of denying his relationship with Thakur Singh.

20. In the case of Jayantilal Verma Vs. State of M.P (Now

Chattisgarh) reported in 2020 (13) Scale 143 while referring the

observations made in the case of Trimukh Maroti Kirkan (supra), the

Supreme Court has observed that when the incident had taken place

inside, the onus is on the person residing in the house to give such

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explanation. In such a situation, it is difficult for the prosecution to

lead any direct evidence to establish the guilt of the accused.

21. In our considered opinion, the ratio laid down by the Supreme

Court in Trimukh Maroti Kirkan's case (supra) squarely applies to the

facts and circumstances of the present case. In the facts of the present

case, it is extremely difficult for the prosecution case to lead the

evidence to establish the guilt of the accused, if the strict principle of

circumstantial evidence is insisted upon. In the facts of the present

case, initial burden to establish the case has been discharged by the

prosecution. Said initial burden is comparatively lighter in character

as per the observations made by the Supreme Court in Trimukh

Kirkan's case. In view of the provisions of section 106 of the Indian

Evidence Act, there is a corresponding burden on the appellant-

accused to give cogent explanation as to how the homicidal death of

deceased Suvarna occurred in the matrimonial home.

22. We find no substance in the submission made by the learned

counsel for the appellant-accused that in the alternate his case falls

under Section 304 of the IPC and not under Section 302 of the IPC.

There is nothing in the evidence to substantiate the contention that

the incident had taken place without any premeditation, in the heat of

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passion during the course of quarrel. On the contrary, it appears that

the appellant-accused had questioned deceased Suvarna for attending

the immersion of ash ceremony at Paithan without his consent and

abused and assaulted her on that count and though at that time she

was rescued by the relatives from her parents' side, on the very next

day, the appellant-accused had committed murder of deceased

Suvarna in his bedroom. This could not have been done without

premeditation. Appellant-accused in his written statement vide Exhibit

45 has not stated that a quarrel had taken place between him and

deceased Suvarna on the count of the said incident and during the

said quarrel, in the heat of passion the incident had taken place.

23. Thus, we are of the opinion that the approach of the Trial

Court is the correct approach. We uphold the conviction and sentence

passed by the trial Court. Hence, we proceed to pass the following

order.

                                    ORDER

 (i)         Criminal Appeal is hereby dismissed.

 (ii)        Criminal appeal is accordingly disposed of.



    ( SHRIKANT D. KULKARNI )                             ( V. K. JADHAV )
            JUDGE                                             JUDGE
 S.P. Rane

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