SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

The State Of Maharashtra Thr. … vs Ganesh Sakharam Chavan on 11 April, 2018

1 apeal548.17

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.548 OF 2017

The State of Maharashtra,
through Police Station Officer,
Gadchandur. …. APPELLANT

VERSUS

Ganesh Sakharam Chavan,
Aged about years,
Occupation – Teacher,
R/o Sarangpur, Tahsil – Jivti,
District – Chandrapur. …. RESPONDENT

__

Shri N.R. Patil, Addl.P.P. for the appellant,
Shri R.M. Tahaliyani and Jasprit Dholotra, Counsel for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATED : 11
APRIL, 2018.

th

ORAL JUDGMENT :

The State is in appeal challenging the judgment and order

dated 17-8-2016 rendered by the learned Additional Sessions Judge,

Chandrapur in Criminal Appeal 83/2011, by and under which the

judgment and order dated 13-4-2011 passed by the learned Judicial

Magistrate First Class, Rajura in Summary Criminal Case 2936/2007 is

::: Uploaded on – 11/04/2018 12/04/2018 02:24:27 :::
2 apeal548.17

set aside and the accused is acquitted of offence punishable under

Section 354 of the Indian Penal Code (“IPC” for short).

2. Heard Shri N.R. Patil, learned Additional Public Prosecutor

for the appellant-State and Shri R.M. Tahliyani, learned Counsel for

respondent-accused.

3. Shri N.R. Patil, learned Additional Public Prosecutor

submits that the judgment and order impugned is unsustainable since

the evidence of the prosecutrix (P.W.7) is implicitly reliable and

offence punishable under Section 354 of the IPC is established against

the accused beyond reasonable doubt. The submission of the learned

Additional Public Prosecutor is that the appellate Court overlooked the

fact that the prosecutrix lodged complaint (Exhibit 34) with the

Headmaster with promptitude. The delay in lodging the first

information report, is satisfactorily explained, is the submission. He

would further submit that the failure of the prosecution to examine the

Investigating Officer did not cause any prejudice to the accused since

no material omissions partaking the nature of contradictions are

brought out in the evidence. Per contra, the learned Counsel for the

accused Shri R.M. Tahliyani would submit that the incident allegedly

::: Uploaded on – 11/04/2018 12/04/2018 02:24:27 :::
3 apeal548.17

occurred on 03-10-2017 and the report (Exhibit 24) was lodged by

P.W.2 Smt. Panchfula Vitthal Jadhav, the Secretary of the society on

11-10-2007. Even if arguendo, the complaint (Exhibit 34) is taken to

be duly proved, the contents of the complaint render the evidence of

the prosecutrix suspect, is the submission. The version in the

complaint (Exhibit 34) is inconsistent with the evidence of the

prosecutrix. Shri R.M. Tahliyani would further submit that failure of

the prosecution to examine the Investigating Officer has indeed caused

prejudice to the accused. The prosecution failed to examine material

witnesses, to unfold the narrative, is the submission. The omissions in

the evidence of Lobhaji Pawar (P.W.3) and Vithal Chawhan (P.W.6) as

regards the alleged narration of the incident by the prosecutrix to the

said witnesses, could not be put to the Investigating Officer since he

was not examined. The defence of false implication at the instance of

Vyankati Kamble, is more than probabilised on the touchstone of

preponderance of probabilities, is the submission.

4. The incident allegedly occurred in the night of

03-10-2007. The report (Exhibit 24) is lodged by the Secretary of the

Society Smt. Panchfula Jadhav (P.W.2) on 11-10-2017. The complaint

(Exhibit 34), which according to the learned Counsel for the accused

::: Uploaded on – 11/04/2018 12/04/2018 02:24:27 :::
4 apeal548.17

was wrongly exhibited in the course of the trial, is stated to have been

made on 04-10-2007. There is no explanation forthcoming why

despite the complaint made by the prosecutrix to the Headmaster on

04-10-2007, the oral report was lodged belatedly on 11-10-2007.

P.W.2 admits in the cross-examination that the police did not record

her statement. In order to lay a foundation for the defence of false

implication, it was suggested to P.W.2 that Vyankati Kamble was found

indulging in malpractices in an examination and the accused deposed

against Vyankati Kamble leading to a strained relationship between the

two. This suggestion is denied.

5. P.W.3 Lobhaji Pawar, who was working as Peon in the

Ashram School has deposed that between 12-00 to 12.30 a.m. in the

night between 03-10-2007 and 04-10-2007, he heard the prosecutrix

shouting and when P.W.2 asked her why she was shouting, she

disclosed that the accused was pulling her “pallu” (part of saree) and

putting hands on her breasts. In the cross-examination, certain

omissions are brought on record, which, however, could not be proved

since the Investigating Officer is not examined.

6. The evidence of P.W.5 is hearsay. He has deposed that

::: Uploaded on – 11/04/2018 12/04/2018 02:24:27 :::
5 apeal548.17

Superintendent Vithal Chawhan and Peon Lobhaji Pawar narrated the

incident to him. However, P.W.5 further states that even the

prosecutrix narrated the incident to him. The disclosure was,

according to P.W.5, that the accused came during night hours and

removed the shawl on the person of the prosecutrix and tried to

outrage her modesty. The evidence that he was told that the accused

came and removed shawl on the person of the prosecutrix and tried to

outrage the modesty, is an omissions, which could not be proved due to

the non-examination of the Investigating Officer.

7. P.W.6 Vithal Chawhan states that he was told by the

prosecutrix and other girls that accused removed shawl from the

prosecutrix’s body. It is elicited in the cross-examination that he did

not state before the police that the girls shouted and the prosecutrix

and other girls disclosed that the accused removed shawl from the

person of the prosecutrix.

8. P.W.7 is the prosecutrix. Her version is that since there

was no electricity supply at the hostel, the girl students were sleeping

in the varandah in front of room 2. Lobhaji Pawar (P.W.2) was

sleeping on one cot and beside the said cot the accused was sleeping.

::: Uploaded on – 11/04/2018 12/04/2018 02:24:27 :::

6 apeal548.17

One Ramabai was sleeping besides the prosecutix and Karuna, Sapna

and other fifteen to twenty girls were sleeping in the varandah. The

accused put his leg on the leg of the prosecutrix three to four times

which she ignored under the impression that the accused was sleeping.

She then states that the accused pulled the shawl and put his hand on

breast and his leg on her person and outraged her modesty. P.W.7

states that she shouted, other girls and Lobhaji Pawar woke up and she

narrated the incident to Lobhaji Pawar. The accused went towards

boys hostel and returned alongwith Vyankati Kamble. The accused

apologised and assured that he would not commit the said mistake in

future and requested the prosecutrix not to disclose the incident to the

Headmaster. The prosecutrix then went to sleep. In the morning,

again the accused apologised and requested her not to disclose the

incident to the Headmaster. However, after consulting Lobhaji Pawar

and Vyankati Kamble, she informed the Headmaster and as asked she

gave a written complaint (Exhibit 34). This complaint is exhibited on

the premise that the document is certified copy of original application.

The document is clearly not admissible. The document is a photocopy.

The complaint is not a public document. The learned Judge fell in

error in holding the document admissible on the assumption that it is a

certified copy of the original complaint. Even if Exhibit 34 is looked

::: Uploaded on – 11/04/2018 12/04/2018 02:24:27 :::
7 apeal548.17

into, the version of the prosecutrix in Exhibit 34 is substantially

inconsistent with her evidence. It is elicited in the cross-examination

that she is acquainted with Vyankati Kamble since long and it was

Vyankati Kamble who helped to secure admission in the Ashram

School. She further admits in the cross-examination that Vyankati

Kamble was suspended by the institution on the ground of misconduct

in examination. However, she denies the suggestion that she falsely

implicated the accused at the instance of Vyankati Kamble. It is elicited

that she did not disclose the incident to her parents.

9. On a holistic consideration of the evidence on record, I do

not find any infirmity in the judgment and order of acquittal. The

unexplained delay in lodging the oral report, the variance between the

evidence of the prosecutrix and her complaint allegedly made to the

Headmaster on 04-10-2007 (Exhibit 34), assuming that Exhibit 34 is

duly proved, the failure of the prosecution to examine the Investigating

Officer and the resultant deprivation of opportunity to the accused to

confront the prosecution witnesses with the omissions and

improvements in the evidence, the failure of the prosecution to

examine even a single girl student out of the fifteen or twenty girl

students sleeping in the varandah, are all circumstances which

::: Uploaded on – 11/04/2018 12/04/2018 02:24:27 :::
8 apeal548.17

cumulatively create sufficient doubt about the prosecution version. It is

trite law, that the benefit of such doubt must necessarily go in favour of

the accused.

10. The learned Sessions Judge has taken a possible view. The

view taken is certainly not perverse. No compelling case is made out

for this Court to interfere in the judgment and order of acquittal.

11. The appeal is sans merit and is dismissed.

JUDGE
adgokar

::: Uploaded on – 11/04/2018 12/04/2018 02:24:27 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please CLICK HERE to read Rules of Group, If You agree then Message us on Above Number.

We handle Women centric biased laws like False 498A, Domestic Violence(DVACT), Divorce, Maintenance, Alimony, Child Custody, HMA24, 125 CrPc, 307, 313, 376, 377, 406, 420, 506, 509 etc

Web Design BangladeshWeb Design BangladeshMymensingh