Govind Ramesh Malakar vs The State Of Mah. Thr. Pso … on 30 May, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 9 OF 2004

Govind S/o. Ramesh Malakar,
aged about 45 years, Occupation :
Service, Resident of M.E.L. Ward,
Krishnanagar, Chandrapur.
…. APPELLANT.
// VERSUS //

The State of Maharashtra,
through P.S.O., Ramnagar,
Chandrapur.
…. RESPONDENT
.
_
Ms Akshaya M. Kshirsagar,Adv. h/f. Shri A.S.Mardikar, Sr.Adv. for Appellant.
Shri Neeraj Patil, A.P.P. for respondent.
_

CORAM : Z.A.HAQ, J.

DATED : MAY 30, 2017.

ORAL JUDGMENT :

1. Heard Ms Akshaya M. Kshirsagar, advocate holding for Shri

A.S.Mardikar, Senior Advocate for the appellant and Shri Neeraj Patil, A.P.P.

for the respondent/ State.

2. The appellant/ accused has challenged the judgment passed by

the Sessions Court convicting him for the offence punishable under Section

354 of the Indian Penal Code and sentencing him to suffer simple

imprisonment for three months and to pay fine of Rs.1,000/- and in default

of payment of fine to undergo simple imprisonment for 15 days.

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3. The case of the prosecution is:

On 2nd December, 1998 at about 12.00 noon the prosecutrix

Sau Megha Ajay Ganvir had gone to jungle along with some other women to

collect fuel wood and while returning with fuel wood the prosecutrix kept

the bundle of wood down and sat on the ground. Other women proceeded

further. This time it was about 3.00 p.m. The accused came there and

offered help to the prosecutrix to lift the bundle of fuel wood. The

prosecutrix declined to accept the help. However, accused caught hold of her

hands, dragged her towards the shrubs and threatened her by showing a

knife, because of which the prosecutrix shouted and the accused left the spot.

Other women, who had proceeded further, on hearing the shouts of the

prosecutrix came to the place where the prosecutrix was and that time it

transpired that the person who misbehaved with the prosecutrix was Govind

Malakar (accused). The accused ran away leaving his bicycle on the spot

which was brought to the police station by the women and report was

lodged. The Investigating Officer conducted investigation and after

completing the formalities filed charghesheet before the learned Chief

Judicial Magistrate. As the chargesheet showed the commission of the

offence punishable under Section 3(1)(x) of the Scheduled Castes, Scheduled

Tribes (Prevention of Atrocities) Act, 1989 which is triable by the Court of

Sessions the learned Chief Judicial Magistrate committed the case to the

Sessions Court. The Sessions Court framed charges, explained charges to the

accused and as the accused did not accept the guilt, conducted the trial.

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After conclusion of the trial, the Sessions Court acquitted the accused for the

offence punishable under Section 3(1)(x) of the Scheduled Castes, Scheduled

Tribes (Prevention of Atrocities) Act, 1989, however, convicted him for the

offences punishable under Sections 354 and 506 of the Indian Penal Code

and sentenced him as per the impugned judgment.

4. The learned advocate for the appellant has submitted that the

contradictions in the evidence of the prosecutrix show that the accused is

falsely implicated and the learned Sessions Judge has committed an error by

convicting the accused overlooking the contradictions in the evidence of the

prosecutrix. It is submitted that in the examination-in-chief the prosecutrix

has stated that the accused had come to the spot on a gents bicycle, however,

while answering the question put to her by the Court she has stated that the

accused had come to the spot on ladies bicycle. It is submitted that the

prosecution has failed to prove that the bicycle, which is produced by the

prosecution, belonged to the accused. It is further argued that the spot of the

incident might be at a distance of about 250 to 300 mtrs. from the main

road and if it is to be accepted that the prosecutrix raised shouts, there is no

explanation why the people going by the main road have not come to the

spot of the incident. It is argued that P.W. 3-Geeta has admitted in cross-

examination that when she reached the spot the prosecutrix Megha was

sitting alone on the ground. It is further argued that P.W. 2-Chandrakala has

admitted in her cross-examination that she does not remember whether she

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had stated before police that she had seen the accused dragging the

prosecutrix Megha. It is argued that overlooking the omissions and

contradictions, the learned Sessions Judge has convicted the appellant and

therefore, the conviction is unsustainable.

5. With the assistance of the learned advocate for the appellant

and the learned A.P.P., I have examined the record and have gone through

the impugned judgment. P.W. 2-Chandrakala has stated in the cross-

examination that she was knowing the accused and his name since prior to

recording of her statement. Similarly, P.W. 3-Geeta has deposed that she

was knowing the accused. The defence has not been able to shatter the

testimony of the above two witnesses. The defence has not been able to

create any doubt by bringing anything in the cross-examination of P.W. 2 and

P.W.3 on the point that they had seen the accused dragging the prosecutrix

Megha on the spot of incident on hearing her shouts. The learned Sessions

Judge has properly appreciated the evidence on record and has rightly

convicted the accused for the offence punishable under Section 354 of the

Indian Penal Code.

However, the conviction of the accused for the offence

punishable under Section 506 of the Indian Penal Code cannot be sustained

as there is no evidence on record on the basis of which the accused can be

convicted for this offence.

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6. At this stage, the learned advocate for the appellant has

submitted that the appellant had not been involved in any crime/ offence

prior to the incident or subsequent to the incident. The learned A.P.P. is not

in a position to controvert this submission made by the learned advocate for

the appellant.

Accepting the submission and considering the fact that the

appellant now might be above 65 years, the sentence imposed by the

learned Sessions Judge is modified and it is directed that the appellant shall

undergo simple imprisonment for 15 days.

Hence, the following order :

i. The conviction of the appellant for the offence punishable
under Section 506 of the Indian Penal Code is set aside.

iii. The conviction of the appellant for the offence punishable
under Section 354 of the Indian Penal Code is maintained.
However, the order imposing sentence is modified and it is
directed that the appellant shall undergo simple imprisonment
for fifteen days.

iii. The order passed by the Sessions Court imposing fine of Rs.One
Thousand on the appellant is maintained.

iv. The impugned judgment is modified accordingly.

v. The appeal is partly allowed in the above terms.

JUDGE
RRaut..

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