Bombay High Court
Sudhir Bhaskar Salaskar vs The State Of Maharashtra on 4 September, 2019
Equivalent citations: AIRONLINE 2019 BOM 1609
Author: A.M.Badar
Bench: A.M.Badar
(204)APEALNo.2662014(J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.266 OF 2014
Sudhir Bhaskar Salaskar,
Age 28 Years, Residing at Sainagar,
Room No.4, Back to Chanakya Mitra Mandal,
Shaniwar Bazar Police Chowk Road,
Andheri East, Mumbai.
At present lodged at Kolhapur Central Jail. ... Appellant
Versus
State of Maharashtra
Aarey Police Station
Through Ld. Public Prosecutor, High Court,
Mumbai. ... Respondent
.....
Ms.Mallika A. Ingale, learned Advocate for the Appellant.
Mr.A.R.Kapadnis, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATE : RESERVED ON 3rd SEPTEMBER 2019.
PRONOUNCHED ON 4th SEPTEMBER 2019.
ORAL JUDGMENT :
1 By this Appeal, the appellant/convicted accused is challenging the Judgment and Order dated 19 th October 2012 passed by the learned Additional Sessions Judge, Mumbai in Sessions Case No.104 of 2019 thereby convicting him of the Gaikwad RD 1/9 ::: Uploaded on - 04/09/2019 ::: Downloaded on - 05/09/2019 02:15:59 ::: (204)APEALNo.2662014(J).odt offence punishable under Section 307 of the Indian Penal Code (hereinafter referred to as 'the IPC' for the sake of brevity) and sentencing him to suffer rigorous imprisonment for five years apart from imposing fine of Rs.3,000/- and default sentence of rigorous imprisonment for six months.
2 Facts leading to the prosecution and resultant conviction of the appellant/accused can be summarized thus :
(a) First Informant/P.W.No.1 Smita Salaskar is the victim of the crime in question. After death of her husband Ramchandra in the 2004, she came to Mumbai from Sawantwadi in search of work. The appellant/accused, who was working as Supervisor in the Reliance Company at Dindoshi, provided work of house-keeping to First Informant/P.W.No.1 Smita Salaskar. Love relations between them developed soon and the appellant/accused secretly married First Informant/ P.W.No.1 Smita Salaskar in a temple at Vasai. Then, they started living as husband and wife at Chakala, Kajuwadi in a rented room. The appellant/accused used to stay with her for 15 days and then used to remain away from her on the pretext of stay with his mother.
(b) The incident in question allegedly took place on 30/08/2009.
During that period, First Informant/P.W.No.1 Smita Salaskar Gaikwad RD 2/9 ::: Uploaded on - 04/09/2019 ::: Downloaded on - 05/09/2019 02:15:59 ::: (204)APEALNo.2662014(J).odt had suffered injuries to her leg. On the pretext of taking her to the Doctor, the appellant/accused took her on the motorcycle in the Aarey Colony area. At a secluded place, he asked First Informant/P.W.No.1 Smita Salaskar to get down from the motorcycle. He told her that the motorcycle developed technical snag and it needs to be repaired. The appellant/accused took out red colour wire from his pant pocket and told that the same is required for repairing the motorcycle. When First Informant/P.W.No.1 Smita Salaskar bent down to see what happened, the appellant/accused put the wire around her neck and strangulated her. First Informant/P.W.No.1 Smita Salaskar became unconscious because of strangulation of her neck by the appellant/ accused. On regaining consciousness, she found herself inside the forest. She came out by crawling and took help from the passers-by. She was unable to speak. Police admitted her to Bhagvati Hospital and on 31/08/2012, her statement (Exhibit
19) came to be recorded, which was treated as FIR. Accordingly, the Crime in question came to be registered with Aarey Police Station, Mumbai.
(c) Routine investigation followed and panchanama of the spot of the incident came to be recorded. Seizures came to be effected and on completion of investigation, the appellant/accused came to be charge-sheeted.
Gaikwad RD 3/9 ::: Uploaded on - 04/09/2019 ::: Downloaded on - 05/09/2019 02:15:59 :::(204)APEALNo.2662014(J).odt 3 The learned trial Court framed charge for the offence punishable under Section 307 of the Indian Penal Code. The appellant/accused abjured his guilt and claimed trial.
4 In order to bring home the guilt to the appellant/accused, the prosecution has examined in all ten witnesses. Reliance was also placed on documentary evidence.
5 Defence of the appellant/accused was that of total denial. According to him, he is falsely implicated on account of some dispute between First Informant/P.W.No.1 Smita Salaskar and his family members.
6 After hearing the parties, the learned trial Court, by the impugned Judgment and Order, was pleased to convict the appellant/accused as indicated in the opening paragraph of this Judgment.
7 I heard Ms.Ingale, learned Advocate for the appellant/accused. She vehemently argued that evidence of First Informant/P.W.No.1 Smita Salaskar is not at all reliable. Her evidence suffers from infirmity. It is further argued that the person who showed the spot of the incident is not examined by the prosecution. The weapon of offence was also not before the Court and other articles seized during the course of investigation were Gaikwad RD 4/9 ::: Uploaded on - 04/09/2019 ::: Downloaded on - 05/09/2019 02:15:59 ::: (204)APEALNo.2662014(J).odt not before the Court. The injury allegedly suffered by First Informant/P.W.No.1 Smita Salaskar, as stated by the attending Medical Officer, could be self-inflicted injury. The learned Counsel further argued that there was no motive with the appellant/accused to commit the crime in question as First Informant/P.W.No.1 Smita Salaskar was already knowing that the appellant/accused is married person.
8 The learned Additional Public Prosecutor supported the impugned Judgment and Order of conviction as well as sentence. I have carefully perused the Record and Proceedings including oral as well as documentary evidence.
9 Considering the nature of offence, entire case of prosecution rests on testimony of the injured victim namely First Informant/P.W.No.1 Smita Salaskar. If ultimately her evidence is found to be reliable and trustworthy, then Court will have to ascertain which offence is made out from her evidence.
10 By now, it is settled that injured witnesses are stamped witnesses whose presence on the spot of the incident admits no doubt, they themselves being the victim of the crime in question. Similarly, in a case of one accused and one injured, theory of false implication does not deserve a moment consideration as it is not possible that the injured will spare the real culprit and rope in an innocent person as the perpetrator of the crime.
Gaikwad RD 5/9 ::: Uploaded on - 04/09/2019 ::: Downloaded on - 05/09/2019 02:15:59 :::(204)APEALNo.2662014(J).odt 11 On this backdrop, if evidence of injured First Informant/P.W.No.1 Smita Salaskar is perused, then it makes clear that the appellant/accused on 30/08/2009 took her on the bike on the pretext of giving treatment to her leg injury by a doctor from the village. She vouched that when she accompanied the appellant/accused on his motorcycle, at a secluded place, at about 11.30 a.m. on 30/08/2009, the appellant/accused made a show of some mechanical problem in the motorcycle and asked her to get down. Thereafter, he took her cellphone in his custody and took out red colour wire from his left pocket. As per her version, the appellant/accused told her that the wire is meant for repairing the motorcycle. Thereafter, he suddenly put that wire around her neck and strangulated her with force. She became unconscious. First Informant/P.W.No.1 Smita Salaskar then testified that on regaining consciousness, she found herself in shrubs and then she came on road by crawling. By gestures, she stopped passer-by and sought help. Thereafter, police vehicle came and took her to the hospital, where she again became unconscious. As per her version, at the hospital her statement (Exhibit 19) came to be recorded and she was hospitalized till 3rd day of next month.
12 Searching cross-examination of First Informant/ P.W.No.1 Smita Salaskar could not create any dent in her version. Her cross-examination reveals that after death of her first husband, she came to Mumbai and obtained a job in the Reliance Gaikwad RD 6/9 ::: Uploaded on - 04/09/2019 ::: Downloaded on - 05/09/2019 02:15:59 ::: (204)APEALNo.2662014(J).odt Company with the help of appellant/accused. From her cross- examination, it is brought on record that she fell in love with the appellant/accused and there was quarrel between them in October 2004. So far as the incident in question is concerned, First Informant/P.W.No.1 Smita Salaskar has admitted that she did not lodge report on 30/08/2009 and had not disclosed to the Medical Officer that the appellant/accused strangulated her. Then on 31/09/2009 she had talked with the Medical Officer. It is brought on record from her cross-examination that on 31/08/2009, she became fit to talk and then she narrated the incident to the Medical Officer.
13 Though it is attempted to show that there is delay in lodging the FIR this evidence of the victim of the crime in question shows that after strangulation of her neck, she became unconscious and she became fit to narrate the incident only on 31/08/2009. Therefore, it cannot be said that there is delay in lodging the FIR by First Informant/P.W.No.1 Smita Salaskar. The FIR at Exhibit 19 is fully corroborating the version First Informant/P.W.No.1 Smita Salaskar.
14 P.W.No.9 Dr.Prabhakar Salgaonkar, Medical Officer of Bhagvati Hospital had medically examined First Informant/ P.W.No.1 Smita Salaskar on 30/08/2009. Evidence of this Medical Officer shows that there was ligature mark around the Gaikwad RD 7/9 ::: Uploaded on - 04/09/2019 ::: Downloaded on - 05/09/2019 02:15:59 ::: (204)APEALNo.2662014(J).odt neck of First Informant/P.W.No.1 Smita Salaskar. Similarly, this Medical Officer had examined the appellant/accused on 01/09/2009 and found that there was nail injuries on his both hands. Evidence of P.W.No.9 Dr.Prabhakar Salgaonkar, Medical Officer of Bhagvati Hospital is gaining corroboration from contemporaneous medical record in the form of Certificates at Exhibit Nos.49 and 50. This medical evidence also corroborated version of First Informant/P.W.No.1 Smita Salaskar to the effect that the appellant/accused strangulated her neck by means of a wire. In that process, it is but natural that the appellant/accused got his both hands injured due to resistance offered by First Informant/P.W.No.1 Smita Salaskar. Injuries on hands of the appellant/accused were by nails.
15 This evidence is sufficient to hold that the appellant/accused on 30/08/2009 had strangulated neck of First Informant/P.W.No.1 Smita Salaskar by means of wire. Version of the victim of the crime in question shows that on the pretext of getting her treated from village Doctor, the appellant/accused took her in the forest area of Aarey colony and at a secluded place on the pretext of repairing the motorcycle had strangulated her neck by means of wire, which was brought by him. Thus, the incident in question is a fall out of a design planned by the appellant/accused well in advance. The appellant/accused had chosen electrical wire for strangulating neck of the victim by Gaikwad RD 8/9 ::: Uploaded on - 04/09/2019 ::: Downloaded on - 05/09/2019 02:15:59 ::: (204)APEALNo.2662014(J).odt taking the victim in an isolated place. He made a show of developing technical sang in his motorcycle in order to facilitate him to strangulate neck of the victim. He then left her in the bushes by dragging her by the side of road. Thus, if ultimately the victim had succumbed to the injuries inflicted by the appellant/accused, he would have certainly liable for offence punishable under Section 302 of the IPC. He had done the act of strangulating neck of the victim with requisite intention to cause her death by carrying her to the secluded place. Hence, no infirmity found either in conviction of the appellant/ accused for the offence punishable under Section 307 of the IPC, so also in the resultant sentence.
16 The Appeal is, therefore, devoid of merit and, as such, the same is dismissed.
(A.M.BADAR, J.) Gaikwad RD 9/9 ::: Uploaded on - 04/09/2019 ::: Downloaded on - 05/09/2019 02:15:59 :::