PANKAJ S/O SOMAN GAIKWAD Vs. STATE OF MAHARASHTRA
HIGH COURT OF BOMBAY
Pankaj S/O Soman Gaikwad
STATE OF MAHARASHTRA
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V. M. Deshpande, J. -
(1.) The present appeal is directed against the judgment and order of conviction passed by the learned 2nd Ad-hoc Additional Sessions Judge, Nagpur, dated 23.2.2004 in Sessions Trial No. 328/2002. By the said judgment and order, the Court below has convicted the appellants for the offence punishable under Section 307 of the Indian Penal Code and directed them to suffer rigorous imprisonment for five years and to pay fine of Rs.500/- and in default of payment of fine they are directed to suffer rigorous imprisonment for one month.
The appellants are also convicted for the offence punishable under Section 341 of the Indian Penal Code and for that fine of Rs.500/- was imposed on them for such conviction and in default of payment of fine they are directed to to undergo rigorous imprisonment for one month.
Similarly, they are also convicted for the offence punishable under Section 352 of the Indian Penal Code and on that count also their sentence is only to pay fine of Rs.500/- for such conviction and in default of payment of fine they are directed to undergo rigorous imprisonment for one month.
(2.) I have heard Shri L. B. Khergade, the learned counsel for the appellants and Shri N. S. Rao, the learned Additional Public Prosecutor for the respondent/State. Also they took me, in detail, through the record and proceedings.
(3.) The facts giving rise to the present appeal are as under :
A] On 27.2.2002, Devendra Patil (PW11) was Night Duty Officer of Police Station, Jaripatka, Nagpur. He received a telephonic message from Sushila Dhage (PW5) that her son Kapil Dhage (PW9) is assaulted. He, therefore, went to the spot, which is Panjabi Line, Nagpur with his staff. There he came to know that injured Kapil is admitted to the hospital. Therefore, he went to Mayo Hospital, Nagpur. He gave requisition (Exh.58) to the Medical Officer enquiring from him as to whether the injured is in a condition to give his statement. The Medical Officer asked him to wait for half an hour. After half an hour, he was told that the victim is in a condition to give his statement. Such an endorsement was given by the doctor on memo (Exh.58). Consequent to the same, he recorded the statement of injured Kapil (Exh.48). His statement (Exh.48) is treated as the first information report and Crime No. 82/2002 for the offences punishable under Sections 143, 147, 148, 149, 307, 341, 352 of the Indian Penal Code and under Section 37(1)(a) and 135 of the Bombay Police Act came to be registered. The printed first information report is at Exh.60. It is dated 28.2.2002. PSI Patil (PW11) also gave requisition to the Special Executive Magistrate to record dying declaration of Kapil and accordingly, his statement was recorded (Exh.49).
B] During the course of investigation of the crime, PSI Patil went to the spot of the incident and in presence of panchas, the spot panchanama (Exh.20) was drawn. He also seized the clothes on the person of the victim at the time of incident from his mother under seizure memo (Exh.16). Search of the accused persons was made.
They were arrested. He also made house search of accused no.3 - Vishal @ Chhotu Thakur and seized the hockey sticks and cricket stumps from the house under seizure memo (Exh.17). During their custodial presence, appellant no.2 Vijay gave his memorandum statement (Exh.35) and agreed to show the place where the weapon knife was concealed. After recording his memorandum statement in presence of panchas, police party reached to the spot where the weapon was concealed and it was recovered under recovery panchanama (Exh.36). One other accused Hemant also gave his disclosure statement and consequent to that, sticks were recovered. After completion of other usual investigation, the charge-sheet was filed before the Court of law.
C] The learned Additional Sessions Judge, Nagpur framed the Charge against the appellants and six other accused persons. Appellant no.1 Pankaj was shown as accused no.2, whereas appellant no.2 Vijay was shown as accused no.5. They all were charged for the offences punishable under Sections 143, 147, 148, 149, 341, 352 and 307 of the Indian Penal Code and under Section 135 of the Bombay Police Act. In order to bring home the guilt of the accused persons, in all 11 witnesses were examined by the prosecution. The learned Judge of the Court below, except the present appellants, acquitted the remaining six accused persons from all the offences. The appellants stand convicted and sentenced as observed in the opening paragraph of the judgment. Hence, this appeal.;
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