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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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