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Shri. Bhaiyaa S/O. Vijay Chakre vs The State Of Maharashtra Thr. … on 22 February, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR

CRIMINAL REVISION APPLICATION NO.37 OF 2018

Shri Bhaiyya s/o Vijay Chakre,
Age 45 years, Occupation Service-Teacher,
Resident of Takarkheda Purna,
P.S. Asegaon, Taluka Chandur Bazar,
District Amravati. ….. Applicant.

:: VERSUS ::

The State of Maharashtra,
Through PSO Asegaon,
Taluka Achalpur, District Amravati. ….. Non-applicant.

Shri S.A. Chaudhari, Counsel for the applicant.
Shri N.B. Jawade, Addl.P.P. for the State.

CORAM : V.M. DESHPANDE, J.
DATE : FEBRUARY 22, 2018.

ORAL JUDGMENT

1. Rule. Rule made returnable forthwith. Heard finally by

consent of learned counsel Shri S.A. Chaudhari for the applicant and

learned Additional Public Prosecutor Shri N.B. Jawade for the State.

…..2/-

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2. By the present criminal revision application, the applicant is

questioning correctness of order passed by learned Additional Sessions

Judge at Achalpur on 8.2.2018 below Exhibit 54 in Special POSCO No.49/2017

by which learned Judge of the Court below has rejected the application filed

on behalf of the applicant for appointment of an independent fresh

Interpreter from the Government School of Deaf and Dumb at Amravati for

the purpose of recording evidence of the prosecutrix.

3. Though the applicant is a teacher in a Deaf and Dumb School,

allegations as containing in the charge-sheet and from evidence of PW1

mother of unfortunate victim girl, at least prima facie, the applicant is a

demon and not a teacher.

4. Crime No.5/2017 is registered with Asegaon Police Station,

District Amravati against the applicant on the allegation that he has

committed penetrative sexual assault on a girl aged about 9½ years who is a

deaf and dumb. The charge-sheet was presented against the applicant for

…..3/-

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the offences punishable under Sections 376(2)(F)(L)(N), 323, and 202 of the

Indian Penal Code and Sections 4, 6, and 21 of the Protection of Children

from Sexual Offences Act, 2012. After completion of entire investigation and

after filing of charge-sheet, the case was registered as Spl. POSCO

No.49/2017 and is pending on the file of learned Additional Sessions Judge at

Achalpur.

5. It is not in dispute at all that the applicant at the relevant

time was a teacher in a deaf and dumb school at Asegaon Purna. The victim

is a student of the said school.

6. As per the case of the prosecution, the present applicant, as

observed hereinabove, has committed penetrative sexual assault on this

unfortunate girl.

7. After the Trial commenced, mother of the victim girl was

examined by the prosecution. Her evidence is at Exhibit 34. She, in very

clear words, has stated from the witness box as to what had happened to her

…..4/-

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daughter. It is not expected that the mother of the victim girl will be an

eyewitness.

8. Since she is the mother of the deaf and dumb girl and it is

quite natural that there is a bond between daughter and mother by which

though she might not have taken any specific education, she in that behalf

will be able to understand the happenings to her daughter which is

disclosed to her by the victim by gestures and signs. The Court cannot

discard that particular evidence only on the basis that the mother is a rustic

woman and she does not understand language. The language is always a

medium of communication between two persons. It is at all not necessary

that to understand language, there shall be any special qualification. By

experience, the mother is always and can read signs made to her by her

unfortunate daughter.

9. After chief-examination of the mother of the victim girl was

over, the applicant cross-examined prosecution witness No.1, the mother in

…..5/-

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detail. Not only she was cross-examined by the applicant who is a accused

No.1 but also she was cross-examined by learned counsel for accused No.2,

headmistress of the school who has shown apathy in respect of reporting the

matter to the police. The examination of PW1 was over on 21.11.2017.

10. It appears that after the evidence of PW1 was over, the

present applicant has changed his Advocate and as soon as new Advocate

filed his Vakalatnama, he moved an application Exhibit 43 for recalling PW1

for further cross-examination. Though the said application ought to have

been filed on record in this proceeding, the applicant for the reasons best

known to him chose not file the said application on record. However, the

said application is available in the file of learned Additional Public

Prosecutor. The said was handed over to this Court for perusal.

11. The application for permission to recall the witness is moved

on the ground that earlier counsel has not cross-examined PW1 properly.

Learned Judge of the Court below, it appears, has exercised his powers to

…..6/-

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recall PW1 and permitted the applicant to cross-examine afresh the

complainant. Fresh cross-examination of PW1 shows that as if the cross-

examination is being taken for the first time. It was the duty of learned

Judge of the Court below as well as learned Public Prosecutor for the State

to object such type of the cross-examination. Since, in my view, at least

prima facie it is nothing but to fill up lacunae which were left while

conducting the cross-examination on the earlier date. Though it was open

for the prosecution to challenge the order passed by learned Judge of the

Court below granting permission to recall the witness, for the reasons best

known to learned Public Prosecutor, who was incharge of the brief, it

appears that learned Public Prosecutor has not even recommended that the

said order should challenged. Paragraph No.17 of the fresh cross-

examination shows that learned Public Prosecutor was not attentive to the

cross-examination. It was the duty of learned Public Prosecutor to object

such questions.

12. After the said, another application was moved by the

…..7/-

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applicant for supply of copy of ‘Video Recording’ of the prosecution which

was taken at the time of recording of the statement of the victim. The said

application was also allowed by learned Judge of the Court below on

3.2.2018.

13. Thereafter, application Exhibit 54 was moved. This

application was for appointment of an independent fresh Interpreter from

the Government School of Deaf and Dumb at Amravati for the purpose of

recording of evidence of the victim girl. According to the application, Mrs.

Verma, who will be the Interpreter, is under the influence of the police and

the complainant and she is not an independent witness. No details are

given by the applicant as to how and under what circumstances Mrs. Verma

is under the thumb of the police or the complainant who is a rustic lady.

The said application is rejected by learned Judge of the Court below, in my

view, correctly. In paragraph No.5 of the impugned order, learned Judge of

the Court below has correctly pointed out the procedure in respect of

recording of the evidence of a person with disability through an Interpreter.

…..8/-

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14. It appears that the applicant anyhow wanted to prolong the

matter and avoid the Trial and, therefore, all sorts of application are being

moved.

15. After hearing learned counsel Shri S.A. Chaudhari for the

applicant and after noticing the chronology of the events, this Court is of

the view that application Exhibit 54 is nothing but an attempt to protract

and prolong the Trial. Therefore, the present revision is required to be

rejected imposing costs. Consequently, I pass the following order:

ORDER

(a) The criminal revision application is dismissed with

costs of Rs.10,000/- (rupees ten thousand only).

(b) The said costs of Rs.10,000/- (rupees ten thousand only)

to be deposited within a period of one month before the Trial

Court.

…..9/-

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(c) If the said costs is not deposited within a period of one

month before the Trial Court, it is open for the Trial Court to

take appropriate steps to recover the said costs as arrears of

land revenue, in accordance with law.

(d) It is expected from the Trial Court to decide the Trial

expeditiously since the deaf and dumb girl is crying for

justice.

(e) Rule is discharged.

JUDGE

!! BRW !!

…../-

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