PAPPU ALIAS RAVI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the judgment and order dated 2.2.2008, passed by the Ad hoc Additional Sessions Judge-9, Nagpur in Session Trial No. 227/2007 by which the appellant was convicted for the offence punishable under Section 363 of Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and fine of Rs. 100/-, in default of payment of fine to further undergo imprisonment for 15 days and was further convicted for the offence punishable under Sections 364 and 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for three months, the present appeal was preferred by the appellant. In support of the appeal, the learned Counsel for the appellant made the following submissions.

(2.) Per contra, learned Additional Public Prosecutor vehemently opposed the appeal and argued that there is a very strong evidence against the appellant in the form of evidence of his wife and his mother-in-law, P.W. 3 - Rekha so also the other independent evidence of the witnesses, who saw the appellant assaulting the deceased and taking him away. He, thus, supported the impugned judgment and order and prayed for dismissal of the appeal.

(3.) We have gone through the entire evidence that was recorded in the trial Court. We have gone through the impugned judgment and order. We have heard the learned Counsel for the rival parties. It is true that the prosecution case and the evidence are clearly based on the last seen theory and there is no direct evidence about the assault resulting into murder of the deceased Shiva. We, however, find that there is evidence of P.W. 2 - Mona, wife of the appellant, who stated that she started living with the appellant at Mankapur after she was deserted by her husband from whom she was having a child by name Shiva, the deceased, aged about 4 years. She then stated that the appellant had objection for maintaining Shiva or Shiva residing with her i.e. P.W. 2 - Mona and therefore, she had kept him with her mother P.W. 3 - Rekha. On 16.3.2007 the appellant had brought Shiva from the house of her mother at about 3:00 p.m. P.W. 3 - Rekha also stated in her evidence that at about 3:00 p.m. the appellant had gone to her house and demanded a glass of water from her and thereafter he forcibly took Shiva with him from her house. It is, thus, clear that the evidence that the appellant took out Shiva from the custody of P.W. 3 - Rekha and took him in his custody at about 3:00 p.m. on 16.3.2007 is consistent, fully corroborated and throwing no doubt at all. Now, at this stage, it is significant to note that the said boy namely Shiva was reported to have been found at 4:00 p.m. i.e. immediately after 1:00 hour lying unconscious on the spot somewhere near the railway track. Thus, the proximity is very well established between the incident of Shiva being taken away by the appellant at 3:00 p.m. and the report about he being found at 4:00 p.m. i.e. within 1:00 hour. If the evidence on this point of both these witnesses is seen, the same is not at all shaken. Then there is evidence of P.W. 6 - Salim Khan, who stated that he saw the appellant at about 4:00 to 4:30 p.m. running towards railway track and therefore, he caught hold of the appellant and brought him towards the small boy who was lying in unconscious condition. The boy was aged about 4 years and at that time police came in police van and took the appellant and the small boy in the police van. On the next day morning, his statement was recorded by the police when he came to know that the boy was dead. There is no cross-examination on this aspect of this witness and therefore, it is very well proved that it was the appellant who was running away towards railway track and was caught and was brought near the small boy lying in unconscious condition, who was ultimately identified to be Shiva. The appellant then also indicated that he had forgotten his Chappal on the spot and was ready to point out the same.