INDRAPAL SHIVCHARAN HIREKHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant was tried for murder of Meena, aged six years, attempt to murder Seema (P. W. 1), aged eight years, rape/attempt to rape Seema (P. W. 1), Kidnapping/abduction of Meena and Seema under sections 302, 307, 376 read with sections 511, 363 and 364 of the Indian Penal Code. The appellant had pleaded not guilty. The prosecution had examined in all ten witnesses in support of the charge. The trial Court accepted the evidence of Seema (P. W. 1), Rajani (P. W. 3) and Kamalabai (P. W. 7) as also the other evidence on record including the injuries found on the person of the appellant. The trial Court came to the conclusion that the appellant was guilty of murder of Meena and sentenced him to suffer life imprisonment and fine of Rs. 500/-, in default, R. I. for one year; that the appellant was guilty of attempt to murder Seema (P. W. 1) and sentenced him to suffer R. I. for ten years and fine of Rs. 500/-, in default, R. I. for one year; that the appellant was guilty for attempt to commit rape on Seema (P. W. 1) and sentenced him to suffer R. I. for ten years and fine of Rs. 500/-, in default, R. I. for one year; that the appellant was guilty for kidnapping under section 363 of I. P. C. and sentenced him to suffer R. I. for three years and fine of Rs. 500/-, in default, R. I. for nine months and the appellant was found guilty for abduction under section 364 of I. P. C. and sentenced him to suffer R. I. for ten years and fine of Rs. 500/-, in default R. I. for one year. The appellant was, however, acquitted under section 376 of the Indian Penal Code. The appellant is in jail from 9-1-1997 till the date of judgment i. e. 21-3-1998 and he was given benefit of set off under section 428 of Cri. P. C. This conviction and sentence has been challenged by the appellant in this appeal.

(2.) THE prosecution case, in brief, is that Vandana (P. W. 8) was married to one Macchindra and through him she delivered two daughters, namely, Meena and Seema (P. W. 1 ). When she used to go for work, she came in contact with the accused/appellant, who told her that he would maintain the girls Meena and Seema, will perform their marriage and will maintain her very well. The appellant took her from her village and they started residing together. She lived with him for about 12 months. After about one month, the accused took her daughters and sent them at village Takali to stay with their father Macchindra. On 8-1-1997, the appellant was sitting on the bridge at village Takali and at that time Rajani (P. W. 3) was passing from that side. The accused told her to call Seema (P. W. 1) because her mother had come there. She went and informed Seema (P. W. 1) and thereafter Seema (P. W. 1) and her younger sister Meena went towards the side where the accused was sitting. Kamalabai (P. W. 7) also speaks of the fact that Rajani (P. W. 3) was passing by that side and accused talked to her. Subsequently, she saw the accused going to Bhandara with two girls Seema (P. W. 1) and Meena. Seema (P. W. 1) and Meena were taken by the appellant near a well. Meena was asked to wait there. Accused took Seema (P. W. 1) near the bushes and after removing her clothes tried to rape her, but she resisted the attempt and the appellant could not succeed and brought Seema (P. W. 1) near the well, after which he first threw Meena into the well and thereafter Seema (P. W. 1 ). Seema (P. W. 1) raised cries, as a result of which, one woman came there and she called another person. Both of them took out Seema (P. W. 1) from well and left her in a hotel and from hotel Seema (P. W. 1) was taken to the police where she lodged the First Information Report.

(3.) LEARNED Advocate for the appellant urged before us that the first link in the chain of events is provided by Rajani (P. W. 3) whose evidence cannot be believed since she has admitted in her cross-examination that she had not seen the accused on the date of the incident and that some other person had come there and that she was speaking lie at the instance of the police. In so far as the evidence of Seema (P. W. 1) is concerned, it is urged that the story put forwarded by Seema (P. W. 1) cannot be believed; that this witness has intentionally tried to implicate the accused and in the process has given many details which are not found in the F. I. R. with which she was confronted. It is further submitted that the man and the woman who are said to have rescued Seema (P. W. 1) have not been examined by the prosecution. According to him, the evidence of this witness does not at all inspire confidence and the trial Court erred in accepting her testimony. It is also urged by the learned Counsel for the appellant that Seema (P. W. 1) has not at all referred or identified the accused in the course of her examination-in-chief which goes to show that the appellant had not taken her nor the appellant had committed any offence, but this witness had been tutored to depose against the appellant. In respect of witness Kamalabai (P. W. 7), it is stated that there was no specific reason for her to have noticed either the appellant or Rajani (P. W. 3) or Seema (P. W. 1) and Meena going along with the appellant and that her evidence should not have been believed. According to the learned Advocate for the appellant, once the evidence of star prosecution witness Seema (P. W. 1) is disbelieved, there is no further evidence to sustain the conviction of the appellant in the crime.