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2014 DIGILAW 2126 (BOM)

Sanjay v. State of Maharashtra

2014-10-08

B.R.GAVAI, V.M.DESHPANDE

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JUDGMENT : B.R. Gavai, J. 1. Being aggrieved by the Judgment and order dated 29.2.2012 passed by the learned Ad-hoc Additional Sessions Judge, Amravati, in Sessions Trial No. 165 of 2009, thereby convicting the appellant/accused for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer life imprisonment and to pay a fine of Rs. 3000/- and in default of payment of fine to suffer rigorous imprisonment for three months, for the offence punishable under section 363 of the Indian Penal Code to suffer rigorous imprisonment for 3 years and to pay a fine of Rs. 1000/- and in default of payment of fine to suffer rigorous imprisonment for one month and for the offence punishable under Section201 of the Indian Penal Code to suffer rigorous imprisonment for one and half year and to pay a fine of Rs. 1000/- and in default to suffer rigorous imprisonment for one month, the appellant has approached this Court. The prosecution case, in brief, is as under: "That one Mangalsingh was working as a labourer in the field of one Vasant Kendale, the first informant (P.W. 1). He was also residing in his filed along with his wife, two sons and daughter. On 7th July, 2009 at around 11 to 11.30 p.m. said Mangalsingh came to the house of P.W. I Vasanta and told him that his daughter Aruna was missing from the house. He took a torch and went to the field with him. In spite of search, they could not find Aruna. He went to the house at about 3.00 a.m.. On the next day morning. Mangalsingh came to the house of Vasant and told him that the dead body of a girl was floating in the well situated in the field of Gaiki. He went with Mangalsingh to the filed of Gaiki. They saw the dead body of a young girl was floating in the well. The dead body was naked. The first informant went to the Police Station. Morshi and lodged a report. Police came to the spot and took out the dead body of the girl. The said body was of Aruna, daughter of Mangalsingh. Initially, offence was registered below K\h. 45. Subsequently, the crime vide Crime No. 132/2009 came to be registered for the offences punishable under Sections 363. 364, 376, 302 and 201 of the Indian Penal Coded. Police came to the spot and took out the dead body of the girl. The said body was of Aruna, daughter of Mangalsingh. Initially, offence was registered below K\h. 45. Subsequently, the crime vide Crime No. 132/2009 came to be registered for the offences punishable under Sections 363. 364, 376, 302 and 201 of the Indian Penal Coded. On completion of the investigation, charge sheet came to be filed in the Court of learned Judicial Magistrate, First Class. Morshi. Since the case was exclusively triable by the Sessions Court, the case came to be committed to the learned Sessions Judge. Charges were framed to which the accused pleaded not guilty and claimed to be tried. On the conclusion of the trial, the learned trial Judge recorded the order of conviction and sentence as aforesaid. Being aggrieved thereby the present appeal." 2. Ms. Saikhede, the learned counsel appointed on behalf of the appellant submits that though the present case is a case of circumstantial evidence, the prosecution has failed to prove incriminating circumstances and secondly failed to establish a chain which is so interwoven to each other that leads to no other conclusion than the guilty of the appellant. She, therefore, submits that the appeal deserves to be allowed and the accused be acquitted. 3. As against this, the learned APP submits that the prosecution has proved all the incriminating circumstances and further proved that the incriminating circumstances taken together lead to no other conclusion than the guilt of the accused. It is, therefore, submitted that the appeal deserves to be dismissed. 4. The prosecution has examined P.W.8 Dr. Rajani Umathe, who had conducted the postmortem. From the postmortem report, it could be seen that the deceased had sustained following external injuries "i) Lacerated wound over upper lip on right side 2 x 1 x 1/2 cm. ii) Crush and laceration on lower limb right side inside mouth 2 x 2 cm. iii) Fracture at mandible on right side." It would further be seen that the following head injuries were sustained by the deceased. "i) Heamatomo over temporal parietal occipital region. ii) Fracture on skull at occipital side. iii) Blood clots in occipital perital area." The cause of death given in the postmortem is due to head injury with intro cranial hemorrhage with fracture to the skull. "i) Heamatomo over temporal parietal occipital region. ii) Fracture on skull at occipital side. iii) Blood clots in occipital perital area." The cause of death given in the postmortem is due to head injury with intro cranial hemorrhage with fracture to the skull. It can, thus, be seen from the postmortem report, so also the evidence of P.W.8 Dr. Rajani that no interference is warranted with the finding of the learned trial Judge that the death of the deceased is homicidal. 5. That leads us to the question as to whether the prosecution has proved that it is the present appellant who is the author of the crime. 6. P.W.1 Vasant Kendale is the first informant. He has stated in his evidence that Mangalsingh along with his wife, two sons and daughter was residing in his field. On 7.7.2009, Mangalsingh came to his house and told him that Aruna was missing from the house. They tried to search but they could not found her. On the next day morning, Mangalsingh came to his house and told him that the dead body of a girl was floating in the well situated in the field of Gaiki. The dead body was naked. He went to the Police Station, Morshi and lodged report. He further states that he had learnt that the accused was sleeping in a hut situated at the distance of 2-3 fields from the field of Ciaiki. 7. P.W.2 Mangalsingh is a father of the deceased. He states that on 7th July, 2009 in the evening he took meal and went to bed. He further stales that in the night his wife got up from the sleep and could not found Aruna in the hut. Therefore, she awakened him and told him that Aruna was missing. He made search of Aruna but she could not be traced. Therefore, he went to the house of P.W.1 Vasant. They tried to search Aruna till 2.00 to 3.00 a.m. He further states that in the morning he saw the dead body of Aruna in the well of one Gaiki. The dead body of Aruna was naked. The field of Gaiki is at a distance of one field from his hut. He further states that he learnt that in the said night, the accused had entered in the house of 2 to 4 villagers and thereafter he slept in the orchard. 8. The dead body of Aruna was naked. The field of Gaiki is at a distance of one field from his hut. He further states that he learnt that in the said night, the accused had entered in the house of 2 to 4 villagers and thereafter he slept in the orchard. 8. P.W. 4 Rajesh is working as a peon in Gram Panchayat. He also holds five acres of land at Dongaryawali. There is a hut situated in his field. He states that on 8.7.2009 at around 6.30 a.m. when he went to his field along with a bag of manure, he saw the door of the hut to be open. He kept the bag of manure in the said hut. He saw the accused sleeping in the said hut. Upon asking him as to how he came there, he replied that after consuming liquor, he had came there. He had asked him to go from the hut. Accordingly, he went away. P.W. 5 Varsha is another residents of the village. She stales that when she was sleeping with his daughter on a cot. somebody touched her foot and, therefore, she became awoke from the sleep. Then, she gave a call to her husband and told him that somebody had slept under her cot. Her husband was about to stand from his cot. By this time, said person started running. When she and her husband came out of the house, they saw the accused was running away. P.W.6 Ramrao states that his daughter told him that somebody entered in his house and when she awoke, found that the accused Sanjay was running away from the house. From the evidence of these witnesses, it could, thus, be seen that the accused had entered in the house of 2 -3 other persons and then slept in the orchard. From the evidence of these witnesses, it could be seen that the deceased was missing in the night of 7th July, 2009 and the accused was seen nearby on the same night. 9. P.W. 3 Vinod is a panch on the memorandum under Section 27 of the Indian Evidence Act and the clothes of the deceased i.e. knicker, frock and stone which was used as a weapon by the accused, came to be seized. P.W.3 Vinod had duly supported memorandum under section 27, so also the seizure. 9. P.W. 3 Vinod is a panch on the memorandum under Section 27 of the Indian Evidence Act and the clothes of the deceased i.e. knicker, frock and stone which was used as a weapon by the accused, came to be seized. P.W.3 Vinod had duly supported memorandum under section 27, so also the seizure. P.W.3 has also tested regarding the memorandum of the accused and taking away the clothes which were used by the accused while committing the crime, which were concealed behind the container of grains. The memorandum as well as the seizure panchanama were duly proved by the said witness. Besides, this evidence also supports the prosecution case. Chemical Analyzer report Exh. 55 shows that the full-pant, baniyan of the accused and the frock and knicker of the victim were stained with human blood. Though the specific questions have been asked to the accused while recording his statement under Section 313 of Cr.P.C. except mere denial no explanation has come forward. In totality of circumstances, we find that no interference is warranted in the findings as recorded by the learned trial Judge that it is the appellant, who has committed crime. Hence, the following order. "Order Appeal is dismissed. The fees payable to the learned counsel appointed for the appellant is quantified at Rs. 5,000/- (Rs. Five Thousand)."