1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.574 OF 2005 Bhagwan Laxman Kesarkar, ) Age: 19 years, Occ: Nil ) Residing at Nanapol Chawl, ) Siddeshwar Talao, Near Cadbury ) Company, Thane. ) (at present in custody at Dhole Jail) ....Appellant (Original Accused) V/s The State of Maharashtra ) .... Respondent. ---- Mr. Ashish Sawant, advocated appointed as amicus curiae for the appellant. Mr. D.P. Adsule, APP for the respondent. ----- CORAM: V.M. KANADE, J. DATE : 20TH OCTOBER, 2008 ORAL JUDGMENT: 1. Heard Mr. Sawant who has been appointed as an amicus curiae to assist the Court as Mr. R.D. Suryawanshi, the advocate for the appellant did not remain present on number of dates when the matter was called out. 2. Appellant is convicted by the Trial Court for the offence punishable under section 392 read with section 397 of the Indian Penal Code and under section 369 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs 1000/- and, in default of payment of fine, to further undergo 2 simple imprisonment for three months. 3. Prosecution case is that one Sampat Narayan Khuspe, was residing in Room No.9 of Nanpol Chawl, Thane with his wife and children. His dauther Prajakta @ Damini left the house at about 4.00 p.m on 7/4/2004 and was playing outside the house. Appellant – accused took her to the corner of the garden by promising to give her something to eat. Then he tried to remove gold ear-rings from the ears of Prajakta. When she started shouting and crying loudly, the appellant assaulted her on her head with a stone and ran away from the spot with the gold ear-rings. On hearing the cries of Prajakta, Satish Kale, Mukesh Ubale and other boys who were playing cricket below the over bridge of the high way near the said garden noticed that the appellant was running away by jumping out from the compound wall of the said garden. These persons chased the appellant – accused and apprehended him and the FIR was lodged at 6.30 p.m. on 07/04/2004. 4. Prosecution examined in all 12 witnesses. Prajakta @ Damini survived the assault though her skull was fractured and her statement was recorded by the Trial Court. The Trial Court accepted the evidence of Prajakta and the other witnesses who had apprehended the appellant. P.W. 7 – Ganesh Jadhav is also an eye witness. He has stated that he has seen the appellant assaulting Prajakta. 5. The learned Counsel appearing on behalf of the appellant has taken me through the judgment and order of the Trial Court as also evidence of Prajakta @ Damini, Ganesh Jadahv and other witnesses. In my view, the Trial Court has properly appreciated the evidence on 3 record. There also has been recovery of ear-rings on the basis of the statement made by the accused under section 27 of the Indian Evidence Act. P. W. 3 – Anil Pawar is a panch wintess in respect of the said recovery of gold ear-rings. The gold ear-rings were identified by P. W. 4 – Jayshree Sampat Khuspe - mother of Prajakta @ Damini and by her father P. W. 5 – Sampat Narayan Khuspe. The evidence of P. W. 11 – Damini is, therefore, corroborated by the recovery of gold ear-rings which are identified by P. W. 4 and P. W. 5. There is no infirmity in the finding recorded by the Trial Court and the said finding will have to be confirmed. 6. Accordingly the following order is passed:- O R D E R The conviction and the sentenced imposed by the Trial Court is confirmed. Appeal is dismissed. (V.M. KANADE, J.)