SONU @ KHUSHAL @ TUSHAR Vs. STATE OF MAHARASHTRA
HIGH COURT OF BOMBAY (AT: NAGPUR)
Sonu @ Khushal @ Tushar
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 Adhoc Additional Sessions Judge, Nagpur, dated 29.7.2004 in Sessions Trial No. 327/2003. By the impugned judgment, the appellant stands convicted for the offence punishable under Section 325 of the Indian Penal Code and for that he is directed to suffer rigorous imprisonment for four years and to pay fine of Rs.5000/, in default of payment of fine he is directed to undergo simple imprisonment for six months. The appellant is also convicted for the offence punishable under Section 323 of the Indian Penal Code and for that he is directed to pay fine of Rs.300/ and in default to undergo simple imprisonment for three month.
(2.) In nut shell, the prosecution case is as under :
A] On 01.3.2003, PW2 Satish Lokhande approached to Police Station, Gittikhadan, Nagpur at 7.15 O'clock in the morning and he reported that on 25.2.2003, the appellant assaulted his mother Indubai, who was admitted in the hospital and expired on 01.3.2003 at 4.15 a.m. The report lodged by PW2 Satish is at Exh.12. That time, PW9 Premanand Sabade was attached to said police station and he reduced into writing the report and registered the offence punishable under Section 302 of the Indian Penal Code against the appellant vide Crime No. 42/2003. Thereafter, PW9 Premanand Sabade went to the spot of occurrence situated at Dashrath Nagar, Nagpur and drew spot panchanama (Exh.19). Further investigation was handed over to PW10 Balasaheb Deolkar.
B] On 02.3.2003, PW10 Balasaheb Deolkar received the case diary of Crime No. 42/2003. By that time, the appellant was already arrested. He was sent for his medical examination. He seized his blood sample and clothes under seizure memos Exh.31 and 22, respectively. On 03.3.2003, the appellant, in presence of panch witnesses PW3 Ganpat Nanhe and PW6 Naresh Lonkhade, gave his memorandum statement and thereby agreed to show the place where he concealed the weapon that is the stick used in the crime. The admissible portion of the statement of the appellant is at Exh.20. Thereafter, the police party was led by the appellant towards Sheela Nagar and he shown the bushes whereat the stick was thrown and it was seized under recovery panchanama (Exh.21).
The Investigating Officer PW10 Deolkar also seized the clothes of deceased Indubai in presence of the panchas on 03.3.2013 under seizure memo (Exh.32). He also recorded the statements of the witnesses. He sent the seized property and weapon for chemical analysis to the Forensic Science Laboratory, Nagpur along with his forwarding letter dated 29.3.2003 (Exh.44). After completion of the other usual investigation, the chargesheet was filed before the Court of law.
C] The Court, before whom the chargesheet was presented, found that the offence is exclusively triable by the Court of Sessions. Therefore, the said Court passed the committal order and thereafter, the case was registered as Sessions Trial No. 327/2003. The learned 2nd Adhoc Additional Sessions Judge, Nagpur framed the Charge against the appellant below Exh.2 in the said Sessions Trial for the offence punishable under Sections 302 of the Indian Penal Code. The appellant abjured his guilt and claimed that he be tried. In order to bring home the guilt of the appellant, the prosecution has examined in all 12 witnesses and also relied upon the various documents, which were proved during the course of the trial.
D] After appreciation of the entire prosecution case, the learned Judge of the Court below, vide impugned judgment, acquitted the appellant of the offence punishable under Section 302 of the Indian Penal Code, however, convicted him for the offences punishable under Sections 324 and 323 of the Indian Penal Code. Hence, this appeal.
(3.) First of all, it is to be noted that though, the appellant is acquitted of the offence punishable under Sections 302 of the Indian Penal Code, no appeal is filed by the State challenging the said verdict.;
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