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
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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
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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
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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
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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
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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.
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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
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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
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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
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