2019 Supreme(Bom) 805

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.P. DHARMADHIKARI, PRAKASH D. NAIK, JJ.
State of Maharashtra - Appellant
Versus
Nazir Javed Khan and Others - Respondent
Confirmation Case No. 1 of 2016; Criminal Appeal No. 293 of 2016, 853 of 2018
Decided On : 03-06-2019

Headnote:

Evidence Act – Section 27 – Penal Code, 1860 – Sections 201, 302, 376, 109 – POCSO Act – Sections 3 and 4 – Code of Criminal Procedure, 1973 – Section 313 – Confirmation – Order of Conviction – Confirmation case arises from judgment delivered by Special Judge under the Protection of Children from Sexual Offences Act, 2012 in POCSO Special Case – Trial court has vide its judgment and order convicted accused for offences punishable under Section 302 of IPC and sentenced him to death – He is also directed to pay fine of Rs.500/- and in default, to suffer rigorous imprisonment for six months – He is also convicted under Section 376 of IPC with life imprisonment and to pay fine of Rs.500/- or in default to undergo rigorous imprisonment for six months – For conviction under Section 201 of IPC, he is sentenced to rigorous imprisonment for 7 years and to pay fine of Rs.3000/- or in default to undergo rigorous imprisonment for six months – This forms subject of challenge in Criminal Appeal – Held, Provisions noted by court and scheme thereof show that accused no. 1 was legally bound to give information to police about accidental death. – The accidental death may have civil consequences or penal effect. – He could not have avoided that investigation or to defeat it, he should not have caused disappearance of evidence relating to it. – After jeopardizing that investigation, accused can not take a plea that there was no offence involved in the incident of death of victim. – Being an employee legally present in the establishment & having noticed the death of a minor, it was his duty to report the accident or incident to the police and to allow them to find out how the victim came below the plywood sheets/s. – Court has, therefore, rightly found him guilty of offence punishable under Section 201 of Indian Penal Code. – Material on record does not show that trial court was justified in holding accused no. 2 also guilty under the said provision. – Court find that it is not necessary to consider the arguments of Advocate Chaudhary on demand of compensation. – Accused no. 1 who has indulged in criminal offence is declared not entitled to any such relief. – Hence, case law cited by Advocate Chaudhary on this issue also need not be evaluated. – Court find that it is not necessary to consider the arguments of Advocate Chaudhary on demand of compensation. – Accused no. 1 who has indulged in criminal offence is declared not entitled to any such relief. – Hence, case law cited by Advocate Chaudhary on this issue also need not be evaluated. – Court have already noted supra that medical evidence does not permit us to hold that there was any offence punishable under Section 302 of Indian Penal Code or under Section 376 of Indian Penal Code. Going by the story of accused no.1, Investigating Officer ought to have attempted to find out whether fall of plywood sheet/s on victim would have resulted in her death. – This would have needed investigation into length, width and weight of plywood sheet and whether only one or all three plywood sheets fell on deceased. – This would have also required scrutiny of a place where those sheets were stored and mode and manner in which they were placed. – That investigation would have brought on record whether sheets were secured properly so as to avoid any accidental fall. – If sheets were stored outside godown and children used to play in that area or frequented that area, whether proper protection/precaution was taken to see that even during such play or other activities of children, the sheet would not fall/slip down. – There is absolutely no investigation in this respect. – This absence of investigation is despite the directions in Writ Petition – Father of deceased had approached this Court promptly for proper investigation and steps taken by Investigating Officer thereafter do not bring on record due diligence. PW 22 was consulted and on the strength of vague opinion at Exh. 83, unsustainable charge under Section 376 of IPC was added. – Now, it is impossible to find out the truth or the real incident. – But omission to conduct proper investigation despite directions of this Court definitely entitles family of victim to reasonable compensation from State Government. – In the present facts, court find that grant of amount of Rs.10,00,000/- (Rupees Ten Lakhs only) to her parents for such lapse on the part of Investigating Agency/Officer will meet the ends of justice. – However, the State shall recover that amount after proper inquiry and as per procedure from Investigating Agency or Officer and/or others found guilty of lack of diligence in the matter. – Criminal Appeal Partly Allowed