DEEPAK KANHAYYALAL SARWAIYYA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Through this appeal, the appellant i. e. original accused has challenged judgment and order dated 31 -3-2003 passed by learned 2nd Ad hoc Additional Sessions Judge, Pusad in Sessions Trial No. 76 of 2001. By the said judgment and order the learned Sessions Judge convicted the appellant under sections 328 and 380 of Indian Penal Code. For the offence punishable under section 328 of I. P. C. the appellant was sentenced to suffer R. I. for ten years and to pay a fine of Rs. 500/- in default S. I. for six months. For the offence punishable under section 380 of I. P. C. the appellant was sentenced to suffer R. I. for seven years and to pay a find of Rs. 500/- in default S. I. for six months. The learned Sessions Judge directed that both the substantive sentences imprisonment to run concurrently.

(2.) Briefly stated, the prosecution case is as under : the complainant P. W. No. 2 Wamanrao Shrinath was residing at new pusad. His house consists of two floors. He and his wife P. W. 4 Venutai were residing on the first floor while his brother P. W. 5 Shrawan and his mother were residing on the ground floor. The complainant was married to Venutai about 10 to 12 years prior to the incident. They did not have any issue. In order to beget child they performed many rituals and also underwent medical treatment, inspite of that they did not have any issue. A few days before the incident one person by name Dhawase came to their residence. Said Dhawase told the complainant that he knows one doctor who can help in conceiving in cases of couples who are issue less and 4 to 5 days before the incident Dhawase brought the said Doctor. The complainant had hotel business. Thereafter the doctor met the complainant in the hotel and said that he was sent by Dhawase. The said doctor (appellate) said that he would go to Umerkhed and come back in the evening. On the same day the appellant came back to this house after 11.30 p. m. The appellant stated that he would bring medicine and if the medical stores are closed he would bring the same from Government hospital. At that time, on first floor the complainant, his wife and mother were there. The appellant told the mother of the complainant that she should go and take rest. Accordingly mother of the complainant went to the ground floor for taking rest. The doctor then asked the complainant to take of his clothes and then the doctor examined him. Thereafter the doctor took out one pill and crushed it. He then asked for two cups of water for the complainant and his wife. The doctor put the medicine in the cups and added water to it and after mixing it gave it to the complainant and his wife for drinking. Thereafter the complainant and his wife became unconscious. The complainant regained his consciousness in the Hospital at Yavatmal. Thereafter the magistrate recorded statement of complainant (Exh. 16). The complainant did not see his golden ring and chain. Hence, he gave report (Exh. 17) of the said incident to the Police Station. It was also noticed by him that the ornaments on the person of his wife and some sarees and other articles from the house were missing. After the complainant came home and verified the missing articles his further statement came to be recorded. After lodging of the complaint investigation commenced. During the course of investigation the appellant came to be arrested. On the same day the stolen ornaments came to be recovered at his instance under Memorandum and Panchanama (Exhs. 34 and 35). Pursuant to the memorandum the appellant led the police and panchas to the jewellery shop of one Vishnupant Udawant. The said articles came to be seized. After completion of investigation charge-sheet came to be filed under sections 328 and 380 of I. P. C.

(3.) The case was committed to the Court of Sessions in the usual manner. Charge came to be framed against the appellant under sections 328 and 380 of I. P. C. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial. Relying on the evidence adduced by the prosecution learned trial Judge convicted and sentenced the appellant in the manner stated in paragraph No. 1 above, this appeal.