Bapu @ Samadhan Suryabhan Nikam vs The State of Maharashtra

R.C. Chavan, J.—This appeal is directed against the conviction of the appellant for the offences punishable under Sections 363, 364 and 307 of the Indian Penal Code, by the learned Ad Hoc Additional Sessions Judge-2, Niphad, District: Nashik, and the sentences of rigorous imprisonment for three years with fine of Rs. 300/- or in default simple imprisonment for two months, rigorous imprisonment for 7 years with fine of Rs. 400/- or in default simple imprisonment for three months and rigorous imprisonment for 7 years with fine of Rs. 500/ - or in default simple imprisonment for six months, imposed on the three counts, respectively, on conclusion of Sessions Case No. 29 of 2006, before him. The facts which are material for deciding this appeal are as under:-

On 24th October. 2005, victim Abhinay a boy, 7 years old studying in III Std. had gone to tuition classes of Deo Sir. Since he did not return at proper time, the parents enquired and found that Shri. Deo Sir had not conducted tuition classes on that day. Abhinay''s friend Ajinkya told that Abhinay had gone with a young man. Ajinkya gave description of that young man. Based on that description, victim''s father Chandramohan had imagined that the victim might have been taken by Bebibai Birari and her son Tushar since they had dispute with him. He accordingly gave report with police. Victim had, however, taken by the appellant on his motorcycle from Chandwad to Saptashrungi Devi temple at Vani Gad. After taking darshan, he brought the victim on the motorcycle and then taken to hill side, undressed the victim and then pushed the victim from cliff. Miraculously the victim got entangled in a tree and was saved. On regaining consciousness, the Victim got down and walked towards a village nearby and informed the villagers of what had happened. They called the police and the victim was then taken to hospital. The victim was found to have suffered several injuries. On completion of investigation, chargesheet was sent to the Court of learned Judicial Magistrate First Class, Chandwad, who committed the case to the Court of Sessions at Niphad. The learned Additional Sessions Judge to whom the case was made over, charged the appellant of offence under Sections, 363, 364 and 307 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. He was, therefore, put on trial at which the prosecution examined in all 12 witnesses in its attempt to bring home the guilt of the appellant. After considering the evidence in the light of defence of denial, the learned Judge convicted and sentenced the appellant as aforementioned. Aggrieved thereby the appellant is before this Court.

I have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. With the help of both, I have gone through the evidence on record.

The victim''s father Chandramohan was examined as P.W. 1. He proved F.I.R. at Exh. 26. The F.I.R. was given in mistaken belief that the victim was kidnapped by his relatives. P. W. 2 Dilip is panch at the panchnama of spot and seizure of the motorcycle at Exh. 28. P.W. 3 Abhinay is the victim himself, who stated that he knew the appellant as the appellant used to work in the same lane. P.W. 3 Abhinay states that he was taken by the appellant to Saptashringi Gad and while returning was pushed of the cliff. He states how he extricated himself and walked towards village and then how the villagers took him to police. P.W. 4 Ajinkya Vyavahare is victim''s friend, who too states that Abhinay had been taken by one person. He identified the appellant to be the same person who took Abhinay on the motorcycle. The evidence of P.W. 5 Prakash Sonawane shows that statement of Abhinay was recorded on 5.11.2005 which is inadmissible.

P.W. 6 Sahebrao Chavan is the villager to whom victim first met and stated about the condition in which the victim was found. He claims to have informed the police. P.W. 8 Madhukar Pawar, is police naik who states that on information received, he had gone to the field of P.W. 6 Sahebrao Chavan. He then took the victim to Government Hospital at Abhona. P.W. 9 Sharad Gavane conducted the investigation. P.W. Nos. 10, 11 and 12 are the doctors who examined the victim and the evidence of P.W. 11 shows that the victim had fractures of radius right side, radius left side, and haemorrhagic contusion in the mid brain on the left side with thin extra axial hematoma in left frontal region and fracture through greater wing of Sphenoid on the left side. The doctors have proved their certificates.

P.W. 7 Dilip is the victim''s uncle, who stated that the appellant was serving in his shop about 5 to 6 months back before the incident. He states that he had advanced an amount of Rs. 5,000/- for purchase of motorcycle to the appellant and the appellant was avoiding to repay the said amount. This seems to have been the cause attributed to appellant taking the victim to hill side and attempting to push him off the cliff. The learned counsel for the appellant submits that it is after thought as it is not possible to believe that a motorcycle could be purchased in the sum of Rs. 5,000/- and/or that for such reason P. W. 7''s nephew could be subjected to such act. The evidence about motive is indeed not free from doubt. But from the evidence of P.W. 3, P.W. 9 and P.W. 4 about the manner in which incident has been taken place, there is absolutely no reason for the victim to falsely state as to what had happened. P.W. 4 victim''s friend stated that the appellant is the person, who had called the victim and victim had gone on his motorcycle. P.W. 6 an unconnected villager met the victim first. There would be no reason for P.W. 6 to state the condition in which he spotted the victim. Considering this, the contention of the learned counsel for the appellant that the appellant has been falsely implicated would have to be rejected. The learned trial Judge has rightly held that appellant kidnapped and pushed the victim off the cliff and victim had just miraculously escaped. Considering the nature of injuries sustained by the victim when pushed off the cliff, the conviction of the appellant for attempt to commit murder also cannot be assailed.

The learned counsel for the appellant sought to rely on the on the unreported judgments in Ashok @ Sonna-vs-State of Madhya Pradesh, in Criminal Appeal No. 990 of 2012 and Prabhunath Singh -vs- The State of Madhya Pradesh in Criminal Appeal No. 2668 of 2008, to support her contention that the appellant is young man and has no previous criminal history, therefore, the sentences imposed upon the appellant may be reduced to the period which the appellant already undergone. She submits that the appellant is in custody since the date of his arrest on 10th August, 2009 and before that he was also in custody from 27.10.2005 to 23.12.2005. She submits that the appellant is thus, in custody for about three years and four months. As rightly pointed out by the learned APP, considering the gravity of offence, the sentence imposed by the learned trial judge is not excessive. However, since learned trial Judge had convicted the appellant for offence punishable u/s 364 of the Indian Penal Code, there was no justification for awarding separate sentence to the appellant for lesser offence punishable u/s 363 of the Indian Penal Code. To that extent the appeal is allowed. The appeal is thus, partly allowed. The conviction of the appellant for offence punishable u/s 363, 364 and 307 of the Indian Penal Code and sentence imposed for the offences punishable u/s 364 and 307 are maintained. However, separate sentence imposed for the offence punishable u/s 363 of the Indian Penal Code is set aside.