High Court
Legal Reasoning
APEAL-44-20+1.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 44 OF 2020Dyandev Trimbak UkirdeAge: 32 years, Occu.: Labour,R/o Zopadpatti, Karmad, Aurangabad..APPELLANTVERSUSState of Maharashtra..RESPONDENTWITHCRIMINAL APPEAL NO. 845 OF 2023State of Maharashtra..APPELLANTVERSUSDyandev Trimbak UkirdeAge: 32 years, Occu.: Labour,R/o Zopadpatti, Karmad, Aurangabad..RESPONDENT....Mr. R.A. Jaiswal, Advocate for appellant in APEAL/44/20 and for respondentin APEAL/845/23Mr. S.D. Ghayal, Add.P.P. for State.... CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJDATE : 01st MARCH, 2024ORAL JUDGMENT ( PER : R.G. AVACHAT, J. ) :1.Both these appeals are being decided by this common judgmentsince they are interconnected. Criminal Appeal No. 44 of 2020 has beenpreferred by the appellant against his conviction for offence punishable underSection 307 of the Indian Penal Code (‘I.P.C.’) and consequential sentenceof five years rigorous imprisonment and fine of Rs.2,000/- with defaultstipulation, while Criminal Appeal No. 845 of 2023 has been preferred byState for enhancement of sentence.1 / 7 APEAL-44-20+1.odt2.Facts giving rise to the present appeals are as under :-First Information Report (‘F.I.R.’) (Exh.22) was lodged by P.W.1 –Sangita, victim herself. It is her case that she originally hail from village Bori,Dist. Burhanpur, State of Madhya Pradesh. She was previously married.The appellant was working as a mason at one construction site. She too wasworking as assistant / labour on the very work. Acquaintance between herand the appellant developed. They got emotionally involved as well. Since itwas stated by her that she was below eighteen years of age, the appellanthad come to her parental home in Madhya Pradesh and enticed her away.She started residing with the appellant as his wife. The appellant had sexualintercourse with her many a time. She even conceived. She wanted to goback to her parental place in Madhya Pradesh. She expressed the same tothe appellant. The appellant, instead of allowing her to go back to herparental home, slapped and even strangled her. She became unconscious.She went to a nearby hotel, after having gained consciousness. The hoteliercalled the police. Police came. She lodged the F.I.R. (Exh.22) against theappellant.3.Based on the F.I.R., crime vide C.R. No. 196 of 2016 came tobe registered for offences punishable under Sections 363, 366(A), 376(2)(j)(n) and 307 of the I.P.C. and under Sections 4 and 6 of Protection ofChildren from Sexual Offences Act, 2012 (‘POCSO’). Scene of offencepanchanama (Exh.27) was drawn. P.W.1 – Sangita (victim) was medicallyscreened. The appellant was arrested. Upon completion of investigation the2 / 7
Legal Reasoning
APEAL-44-20+1.odtappellant was proceeded against by filing charge-sheet before the Courtconstituted for offence committed under POCSO (trial Court). The trial Courtframed the charge (Exh.15). The appellant pleaded not guilty. His defencewas of false implication.4.The prosecution examined eight witnesses and produced inevidence certain documents. The trial Court, on appreciation of theevidence, convicted the appellant for offence punishable under Section 307of the I.P.C. and consequently sentenced as stated above. The appellantwas acquitted of rest of the offences he was charged with. This Court did notgrant State leave to appeal against acquittal.5.Learned counsel for the appellant would submit that the appellantis behind the bars for little over four and half years. Within a few months theappellant would be serving out the entire sentence. According to him, theoffence is not such warranting imposing sentence of five years ofimprisonment. He, therefore, urged for partly allowing the appeal.6.Learned Add.P.P. would, on the other hand, submit that evidenceof the victim indicates the appellant to have attempted to commit her murder.Fortunately, the victim survived. According to learned Add.P.P., the factsand circumstances of the case warrant enhancement in quantum ofsentence.3 / 7 APEAL-44-20+1.odt7.Considered the submissions advanced. Perused the evidence onrecord.8.P.W.1 – Sangita’s (victim) evidence indicates that she hail fromvillage Bori, Dist. Burhanpur, State of Madhya Pradesh. She was previouslymarried. The appellant was working as a mason. Both of them would workat a common construction site. Acquaintance between them developed. Itresulted into emotional relationship between the two. The appellant hadeven come to her parental house. He enticed her to join him. She,therefore, started residing with him. She even conceived.9.It is further in her evidence that she wanted to go back to herparental house in State of Madhya Pradesh. She expressed her mind to theappellant. He, instead of allowing her to go back, slapped her and evenstrangled. She became unconscious. After having gained consciousness,she found herself in a hotel. The hotelier made a phone call to the police.The police arrived. She lodged the F.I.R. (Exh.22).10.P.W.1 – Sangita (victim) was subjected to a searching cross-examination. She admitted to have been involved in emotional relationshipwith the appellant. She even intended to marry the appellant. The appellanthad stayed at her parental house for two-three days. Both of them cameback to Aurangabad and started living together at Karmad. Even there wasno bickering between the two. She, however stated that after having gainedconsciousness, she herself went to a nearby hotel. Although she admitted4 / 7 APEAL-44-20+1.odtthat the police had not read over the contents of the report, she stated thatthe police recorded her statement as per her narration. She was evensuggested in her cross-examination that except the report in question(Exh.22), she did not lodge any other report against the appellant. 11.The aforesaid suggestion in the cross-examination of P.W.1 goesa long way to infer that the victim had to go a nearby hotel. She informed thehotelier, who in turn, called the police. She then lodged the F.I.R. (Ex.22).12.P.W. 4 – Dr. Vikram testified that he examined the victim on 26thOctober, 2016. She was referred by police for medical examination. Heissued Medical Legal Certificate (Exh.41) referring following injuries on herperson :-“Abrasion – around the neck, imprint abrasion over the anterolateral aspect of neck horizontally, injury was 18 x 1.5 cm., radishin colour, age of injury was less than 24 hours, weapon used byhard and blunt object and simple in nature,Blunt Trauma – over abdomen, weapon by hard and blunt objectAbrasion – over right elbow, 3 cm., horizontally, injury was lessthan 24 hours, weapon used by hard and blunt object, injury wassimple in nature,Abrasion – over right iliac region, size 7 cm x 5 cm, simple innatureAbrasion – over left buttock, size 9 cm x 3 cm, simple in nature”13.True, the victim though gave P.W.4 – Dr. Vikram history ofassault, did not name the appellant. He was even suggests that injuries on5 / 7 APEAL-44-20+1.odtthe person of victim may even be possible by accidental strangulation. He,however categorically denied that such injuries could be caused in anattempt to commit suicide by strangulation.14.P.W.6 – Ishwar was a hotelier. He would run hotel, “Jai Bhavani”near village Karmad. His evidence indicates that he was at his hotel in theevening on 25th October, 2016. According to him, a girl in the age group of15-16 years came. Clothes on her person were torn. She was frightened.There was injury on her neck. He served her water. She was speaking inhindi. He informed the police station. The police arrived and took her withthem.15.Appreciation of the aforesaid evidence would indicate that thevictim was staying with the appellant in live-in or marriage-like relationship.The victim was from village Bori, Dist. Burhanpur, State of Madhya Pradesh.She wanted to go back to her parental place. She expressed her mind to theappellant. The appellant, thereupon slapped her and even strangled. TheF.I.R. (Exh.22) was lodged within hours of the incident. She rushed to anearby hotel. Her evidence gets reinforced by evidence of the hotelier(P.W.6). Moreover, medical examination report of the victim (Exh.41) furtherreinforces her case. We, therefore, do not find the trial Court to havecommitted any error in convicting the appellant for the offence punishableunder Section 307 of the I.P.C.6 / 7 APEAL-44-20+1.odt16.Considering the nature of injuries suffered by the victim and thefact that the appellant has been behind the bars for little over four years, wedo not find it to be a fit case to allow State’s appeal for enhancement ofsentence. In our view, ends of justice would be met if the appellant issentenced to suffer imprisonment for the period which he has alreadyundergone. In the result, we pass the following order :-ORDER(I)Criminal Appeal No. 44 of 2020 is partly allowed.(II)The judgment and order dated 16th December, 2019passed by Special Judge (POCSO), Aurangabd in Special CaseChild Protection No. 12 of 2017 thereby convicting the appellantfor the offence punishable under Sections 307 of the Indian PenalCode is hereby confirmed. However, the sentence is reduced tothe extent of the period, which the appellant has alreadyundergone.(III)The appellant be released forthwith, if not required inany other case.(IV)Criminal Appeal No. 845 of 2023 filed by State forenhancement of sentence is hereby dismissed.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD7 / 7