DIPAK KANHAYALA SURVAIYYA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this appeal, the appellant-accused has challenged the judgment and order passed by the 3rd Additional Sessions Judge, Akola, dt. 1-1-2002 in Sessions Trial No. 11 of 2000, whereunder he was convicted for the offences under sections 328 and 380 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 200/- in default to undergo rigorous imprisonment for one month for the offence under section 328 of the Indian Penal Code and to undergo rigorous imprisonment for one year and to pay a fine of Rs. 200/- in default to undergo rigorous imprisonment for one month for the offence under section 380 of the indian Penal Code. Both the sentences were to run concurrently.

(2.) THE prosecution case, in brief, is that victim Archana (P. W. 11) was married with one Gajanan Chowdhary (P. W. 12) about six years before the incident that took place on 13-2-1999. However, they were not having any issue. Gajanan's sister Alka Bambai is given in marriage at Amravati where she resides adjacent to the house of one Raju Jawarkar. Some two years before, when Alka had visited the house of Raju Jawalkar, the appellant had come there and had told Raju that he had Ayurvedic medicine for the couples which are issueless. Therefore, Alka gave address of her brother Gajanan chowdhary and consequently, the appellant-accused reached at the house of archana at about 9. 00 A. M. , when Archana was alone in the house. The appellant told her that he was Ayurvedic doctor and Alka had sent him. As gajanan was in the school, where he was working as Head Master, Alka sent her neighbour witness Sharad Joshi to bring her husband. Gajanan accompanied by Sharad Joshi came home and the appellant told him as to why he paid visit to them disclosing his name as Dr. Chowdhary and later having talked with Gajanan for sometime, left the house. Thereafter, at noon around 12 o'clcok, the appellant again came to the house of Archana when Archana's husband Gajanan had been to village Marki and as such, Archana was alone in the house. The appellant insisted upon Archana to take the medicine for conception. But she refused to take the same and asked him to leave the house. But, the appellant again along with one lady by name Rekha Raut came to the house of archana around 2. 00 p. m. and told that said lady Rekha was not conceiving child, but on taking medicine from the appellant she conceived a baby. Thus, the said lady also proposed her to take the medicine from the accused.

(3.) THE appellant-accused took out one bottle from his bag which contained white coloured powder and gave the said bottle to Rekha directing her to administer the powder from the bottle to Archana through water. Archana consumed that medicine and went to prepare tea for the appellant and the lady Rekha Raut. But, at that time, she felt giddiness. The appellant-accused then asked her to take rest on bed. Archana became unconscious. The accused and lady Rekha when had come at the house of Archana, she had worn her Mangalsutra of gold and ear rings, total weighing about 3. 50 grams. However, when Archana regained consciousness in the General hospital, at that time, she fond her ear rings and Mangalsutra i. e. Dorle and four gems missing. Their neighbour Sharad Joshi's son asked him to go in the house of archana to tell her to connect the water connection to the water pump. When he went in the house of Archana, he found that she was alone in the house and was alone lying on the sofa set. He tried to wake up her, but she did not respond. It was found that Archana was unconscious. Therefore, she was taken to the hospital of Dr. Sunil Deshmukh by an auto rickshaw and thereafter, to the hospital of Dr. Dehankar and then, lastly to the General Hospital, akola as the doctors were not prepared to treat her, it being a police case.