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2019 Supreme(Bom) 610
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
Z.A. Haq, Vinay Joshi, JJ.
Akshay Kailash Purohit – Appellant
Vs.
State of Maharashtra, Through P S O, Police Station Telhara, Tahsil Telhara, Akola - Respondent
Criminal Appeal No. 171 of 2017, 409 of 2017, 410 of 2017, 220 of 2016
Decided On : 16-04-2019
R.M. Daruwala, Adv., S.S. Doifode, Adv., S.V. Sirpurkar, Adv., Jyoti Wajani, Adv., P.M. Chandekar, Adv.
Headnote:
Information Technology Act – Section 66A – Indian Penal Code, 1860 – Sections 363, 364A, 302, 201, 120B read with Section 34 – Order Of Conviction – Appeals are arising out of judgment and order of conviction passed by the learned Sessions Judge, Akot in Sessions Trial – Accused No.1 and Accused No.2, were charged for offences punishable under Sections 363, 364A, 302, 201, 120B read with Section 34 of The Indian Penal Code, and Section 66A of The Information Technology Act. – Held, Principles have been laid down by the Honble Supreme Court, requiring the Court to apply the test to determine, if it was the rarest of the rare case for imposition of death sentence. – Court must come to the conclusion that imposition of any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice. – It has further been held that the death sentence should be imposed when the option to impose sentence of imprisonment for life cannot be consciously exercised having regard to the nature and circumstances of the crime and all relevant circumstances. – It has been further laid down that the Court should take into consideration the method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime. – Besides death of a child, there is nothing uncommon to turn it as a most heinous or rare case. – One must remember that the accused was just 19 years of age at the time of commission of crime who has no anticidents. – There was no previous enmity between accused no.2 and informant. There are no circumstances to indicate that life imprisonment can be construed as inadequate punishment. – Court do not find any reason to believe that the accused cannot be reformed. – There is no material to hold that it is a crime of extreme brutality and would shatter social fabric. – Court is of the view that the case in hand does not fall in the exceptional category of rarest of rare case. – The alternative punishment imposed by the trial court is of life imprisonment, which is well justified. – As regards the rest of the sentence is concerned, they appear to be in proportion to the act committed by the respective accused, and does not call for interference. – Court hold that the appeals filed by accused no.2, State and informant are devoid of any merit. – The appeal of accused no.1 deserves to be partially allowed only to the extent of setting aside his conviction and sentence punishable under Section 201 of the Indian Penal Code. – Criminal Appeal Dismissed
Vinay Joshi, J.
These appeals are arising out of judgment and order of conviction dated 01.06.2016, passed by the learned Sessions Judge, Akot in Sessions Trial No.21/2014. Accused No.1 - Akshay Pachange and Accused No.2 - Akshay Purohit, were charged for offences punishable under Sections 363, 364A, 302, 201, 120B read with Section 34 of The Indian Penal Code, and Section 66A of The Information Technology Act.
After holding full fledged trial, the learned Sessions Judge has convicted accused No.1 for offences punishable under Sections 363, 120B and 201 read with 34 of The Indian Penal Code, whilst acquitted him for the offence punishable under Sections 302, 364A of The Indian Penal Code and Section 66A of The Information Technology Act. Likewise, the learned Sessions Judge has convicted accused No.2 for the offence punishable under Sections 302, 363, 120B, 201 of The Indian Penal Code and acquitted him for the offence punishable under Section 364A of The Indian Penal Code and Section 66A of The Information Technology Act. Different quantum of sentences have been awarded for the proved offences, and directed to run them concurrently.
2. Accused No.2 - Akshay Purohit has filed Criminal Appeal No. 171/2017, challenging the order of conviction for the offences stated above. Accused No.1 Akshay Pachange has also challenged his conviction and sentence by filing Appeal No. 220/2016. The State has challenged acquittal of Accused No.1 Akshay Pachanage for offence punishable under Sections 302, 364A of the Indian Penal Code, vide Criminal Appeal No. 409/2017. Likewise, the original informant vide Criminal Appeal no. 410/2017, has challenged the acquittal of both the accused for respective offences, and also sought for enhancement of the punishment.
3. During the trial, Accused No.2 refused to take legal assistance from the Legal Aid Panel. The learned Sessions Judge made every endeavor to convince him for seeking assistance of a competent Lawyer from the panel of Legal Aid, but, he refused. Since accused No.2 was under trial prisoner, and there was considerable delay in the progress of the trial, the learned Sessions Judge aptly appointed Advocate Ajit Deshpande as Amicus Curiae to defend accused no.2. It emerges from the record that the learned Sessions Judge took every care to see that the accused were properly and ably represented and every opportunity was given to put up their defence. In the appeal, no grievance is made that there was no proper representation to accused no.2 before the trial Court. We are satisfied from the record that every opportunity was given to accused no.2 Purohit, and he was properly defended.
4. The prosecution case, as emerges from the record, can be stated as follows :
The informant Sagar Bagani, was running a hardware shop at village Telhara, District Akola. His residence was abutting his shop precisely on the rear side of his shop. He was residing with his family, including his minor daughter Vishaka @ Lado, (deceased) aged 2½ years. The informant had employed five servants at his shop which included Accused no.1 - Pachange. Minor Lado was looked after by accused no.1. The informant had specifically directed accused no.1 that the child shall not be taken anywhere except the shop and residence. On 27.02.2014, around 6 p.m., the informant was at his shop with the child. He asked the accused no.1 to leave the child at his residence with her mother. After half an hour, the informant returned to his residence after closing the shop, but, did not find his daughter Lado. He searched for Lado, and also tried to contact accused no.1. Within short while, he had received a phone call from accused no.1, informing that the accused no.2 - Purohit, had assaulted him, snatched Lado and had taken her away. Immediately, the informant rushed to the place i.e. near petrol pump, where he found accused no.1. On enquiry, the accused no.1 gave evasive answers. The informant suspected foul play, hence, he took accuse
