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2007 DIGILAW 1518 (BOM)

SHRIRAM NAMDEO WAWTALIKAR v. STATE OF MAHARASHTRA

2007-10-18

C.L.PANGARKAR

body2007
JUDGMENT :- This is an appeal by accused who is convicted under sections 363, 367 and 307 of the Indian Penal Code. 2. The accused has been sentenced to 10 years simple imprisonment for having committed offence under section 307 of the Indian Penal Code, three years simple imprisonment for having committed offence under section 363 of the Indian Penal Code and five years simple imprisonment for having committed offence punishable under section 367 of Indian Penal Code. The appellant shall hereinafter be referred to as accused. 3. The facts giving rise to this appeal are as follows On the date of the incident, Jivansingh had gone to the Sugarcane Juice Center where his friend works. While he was at the Sugarcane Juice Center, one Gajanan and the present accused came there. Gajanan told the accused to purchase for him raw mangoes. Gajanan handed over Rs. 10/- to the accused and Re. 1/- extra for hiring bicycle. The accused then asked victim Jivansing as to whether he would accompany him. Victim Jivansing agreed to come with him. The accused brought a bicycle, made Jivansingh to sit on the bicycle and took him to one field. Some ladies were working in the adjoining field. Accused said to let them go. After those ladies went away, the accused asked victim Jivansing to remove his clothes. Victim Jivansing was then boy of 14 years. He refused to removed his clothes. Accused got enraged due to this. He strangulated victim Jivansing and threw him in the dry well in the nearby field. The victim fell in the well. He suffered injuries and he was in the Well for two days. One Tryambak Kalaskar while passing by the Well, heard shouts of the boy from the Well. He along with one of his friends Sunil Halde took Jivansing out of the Well. Jivansing was then taken to the hospital and was under treatment for quite some time. His father lodged the report with the police. The Police registered the offences under sections 307, 366, 367 of the Indian Penal Code. After completion of the investigation, the charge-sheet came to be filed against the accused. The Judicial Magistrate (FC) committed the case to the Court of Sessions. The Court of Sessions framed charge and after consideration of the evidence found the accused guilty and sentenced him accordingly. 4. After completion of the investigation, the charge-sheet came to be filed against the accused. The Judicial Magistrate (FC) committed the case to the Court of Sessions. The Court of Sessions framed charge and after consideration of the evidence found the accused guilty and sentenced him accordingly. 4. I have heard the learned counsel for the accused and the learned Additional Public Prosecutor for the State. 5. It is alleged that the accused had kidnapped the child Jivansing from lawful guardianship. It has to be proved by the prosecution that he was taken away and that too without the consent of the lawful guardian and that he was less than 16 years of age. It is deposed by PW 2 Jivasing that he had gone to Sugarcane Juice Center around 12 in the noon to meet his friend who works at the center. He states that one Gajanan and the accused came there and Gajanan told accused to bring raw mangoes and paid Rs. 10/- to him. He states that accused asked him if he would accompany him and he answered in the affirmative. He states further that he requested to accused to let his friend Vijay also to come, but the accused declined. He goes on to state that accused brought a bicycle, took him to the field near Ashirvad Hotel. He further states that some ladies were working in the field adjoining and accused asked to wait till ladies go away. He further states that thereafter one Mr. Sonar came and he asked accused whether he is coming, the accused said that he would pluck the mangoes and then come. He further states that after Mr. Sonar left, accused instead of plucking the raw mangoes, asked him to remove his clothes and when he refused, he caught him with both hands and pressed his neck due to which he became semi unconscious. He further states that accused then lifted him and threw in the well near a nim tree. Further he states that there was no water in the well but there was mud at the bottom on which he fell and he suffered fractures to his hand and ribs. He states that this was around 2 to 3 p.m. He remained in the Well till he was removed on third day evening by Tryambak Kalaskar and Sunil Madhukar. Further he states that there was no water in the well but there was mud at the bottom on which he fell and he suffered fractures to his hand and ribs. He states that this was around 2 to 3 p.m. He remained in the Well till he was removed on third day evening by Tryambak Kalaskar and Sunil Madhukar. He further tells that he then was removed to the hospital and was under treatment at Buldhana. The cross-examination of the witness revolves around as to whether one can hear the shouts from the well sitting in Ashirwad Hotel. It is in the evidence that the distance is 50 to 60 feet. It is practically impossible for a boy of so tender age to shout so loudly that his voice could come out of well and reach the person sitting in the hotel. There is further mere suggestion of denial of the incident. There is no reason for such a small boy to unnecessarily implicate the accused. The evidence goes to show that the child was taken away by the accused and that too without the consent of the parents. PW 2 Jivansing has told his age as 14 to 15 years on the date his evidence was recorded. Obviously, he was less than 12 years of age at the time when incident had taken place and there is no challenge to his statement. Since boy who was less than 16 years of age at the time of incident was taken without the consent of the lawful guardian, it could be said that the offence under section 363 is fully established. 6. The evidence of PW 2 Jivansing further clearly goes to show that accused had asked him to remove the clothes and he had refused and getting enraged he threw him in the well. This conduct of the accused clearly goes to show that he had brought the child with him and that too for the purpose of satisfying his unnatural lust. The learned Sessions Judge has rightly held the accused guilty of offences under sections 363 and 366 of the Indian Penal Code. 7. The evidence of PW 2 clearly goes to show that he was strangulated and thrown in the well. The learned Sessions Judge has rightly held the accused guilty of offences under sections 363 and 366 of the Indian Penal Code. 7. The evidence of PW 2 clearly goes to show that he was strangulated and thrown in the well. When a person is strangulated and is thrown in the well, the person throwing the other in the well could have no other intention but to kill him. Further the evidence of PW 2 Jivansing that he was thrown in the well and was taken out after two days is corroborated by PW 3 Tryambak. PW 3 has clearly stated that he took Jivansing out of the well and Jivansing had narrated the whole episode to him. This conduct of PW 2 Jivansing in narrating the incident immediately after he was taken out clearly lends support to what he, telling on oath. The evidence, therefore, clearly goes to show that the accused had thrown Jivansing in the dry well and that he had even strangulated him. The fact that accused strangulated Jivansing and then threw him in the well clearly goes to establish his intention of killing Jivansing. The evidence of PW 2 Jivansing is also corroborated by the Medical Certificate which shows that he has suffered following injuries - 1. On the lower back, query fracture. 2. On the left shoulder, query fracture. 3. On the lower limbs - severe injury. Suspected fracture. Jivansing had suffered three fracture injuries. He was in the well for two days and had he not been removed, he would certainly have died in the Well itself. The evidence, therefore, clearly goes to show that an attempt was made on the life of PW 2 Jivansing. The Sessions Judge has rightly convicted the accused. There is no merit in the appeal, it is dismissed. Appeal dismissed.