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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.
215 OF 2006

Janardan Uttam Devale
aged 58 years,
occupation agriculturist
r/o. Gram Nagartas,
panchayat Samiti Malegaon,
District Washim. …. APPELLANT

VERSUS

State of Maharashtra,
through PSO Malegaon,
District Washim …. R ESPONDENT

Shri A.S. Mardikar, senior counsel for the appellant,
Shri. N.H. Joshi, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO
, J.

DATE OF DECISION: 15 -02

-2018

ORAL JUDGMENT :

The appellant is aggrieved by the judgment and order

dated 31.3.2006, delivered by Additional Sessions Judge, Washim, in

Atrocity Case 18 of 2003, by and under which, he is convicted for

offence punishable under section 354 of the Indian Penal Code (IPC)

and is sentenced to suffer simple imprisonment for two months and to

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payment of fine of Rs. 500/-.

2 Heard Shri Anil Mardikar, the learned senior counsel for

the appellant – accused and Shri N.H. Joshi, the learned Additional

Public Prosecutor for the respondent / State.

3 The case of the prosecution as is unfolded during the

course of trial is thus:

The incident occurred on 7.10.2003 when the prosecutrix and

other women labours were collecting Soyabin seeds in the agricultural

field of the accused. In the afternoon, the accused approached the

prosecutrix, asked her whether she would like to have sweet from him,

caught her hand and pressed her breast. The accused warned the

prosecutrix not to raise alarm. The prosecutrix none the less shouted

and the accused left the spot. The prosecutrix disclosed the incident to

other women labour and returned home. When her father returned

home, the prosecutrix disclosed the incident. The report was lodged at

Police Station Malegaon on 7.10.2003. On the basis of the report

offence punishable under section 354 of the IPC and under section 3(1)

(xi) of the Scheduled Caste and Scheduled Tribes (Prevention of

Atrocities) Act was registered. Initially the investigation was conducted

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by PSI Sonparote who visited the spot and recorded the spot

panchanama. The investigation was taken over by PW 6 Ramesh Tele –

Deputy Superintendent of Police, Washim in view of the provisions of

the Atrocities Act. Completion of investigation led to submission of

charge sheet in the Sessions Court.

4 The learned Sessions Judge framed charge against the

accused (Exh 10) under section 354 of the IPC and under section 3(1)

(xi) of the Atrocities Act. The accused pleaded not guilty and claimed

to be tried. The defence of the accused is of total denial and false

implication. The defence is that in the afternoon on the day of the

incident, the prosecutrix and her brother committed theft of Soyabin

seeds. The theft came to light when the other women labours found the

quantity of the seeds collected less. The accused informed of the theft

and since he started inquiring, a false report was lodged by the

prosecutrix.

5 PW 3 – Laxmibai and PW 4 Mangalabai who according to

the prosecution were working with the prosecutrix did not support the

prosecution. The learned APP sought permission under section 154 of

the Indian Evidence Act to put questions in the nature of

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cross-examination, which permission was granted. However, nothing is

elicited in the cross-examination of PW 3 Laxmibai or PW 4 Mangalabai

to assist the prosecution. The edifice of the prosecution case rests

substantially, if not entirely, on the testimony of the prosecutrix (PW 1).

The pivotal issue is whether the testimony of the prosecutrix is

confidence inspiring. It is trite law, that if the testimony of the

prosecutrix is found implicitly reliable and confidence inspiring, the

court need not search for any further corroboration.

6 The evidence of the prosecutrix, who was then a minor is

broadly consistent with the contents of the First Information Report.

She has deposed that when after lunch break she and the other women

labours resumed work, the accused approached her, the other women

labours were at some distance and wife of the accused was at a long

distance away. The accused caught her hand and pressed her breast.

She shouted and disclosed the incident to the other women labours.

The accused after pressing her breast threatened her not to raise an

alarm.

In the cross-examination, the defence has brought on

record that it was the accused who came to the house of the

prosecutrix and called her for work. The wife of the accused also asked

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the prosecutrix to report for work. The suggestion given to the

prosecutrix is that she and her brother had committed theft of Soyabin

seeds from the agricultural field of the accused and that her father had

taken an amount of Rs.3000/- from the accused. The learned Sessions

Judge has noted that when this suggestion was given, PW 1 started

weeping. Be it noted, that the defence did not dispute the presence of

the accused at the scene.

7 PW 3 Laxmibai and PW 4 Mangalabai were obviously won

over. Both have deposed that the prosecutrix did not accompany them

to the agricultural field of the accused. In the cross-examination of

PW 3 Laxmibai the falsity of her testimony is exposed. She admits that

the wife of the accused had called the prosecutrix to attend work.

She admits that the prosecutrix accompanied her and PW 4 to the field

of the accused. In the next breath, she states that prosecutrix did not

come. Immediately, she again makes a volt-face and states that the

prosecutrix came but she was late. She has gone to the extent of

denying the presence of the accused in the field. This is not even the

case of the defence. PW 3 can not be believed and her statement in the

cross-examination on behalf of the accused that the prosecutrix and her

brother had come to the field between 3.30 to 4.00 p.m. and it was

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noticed that the quantity of the Soyabin seeds was less, is of no

assistance to the defence. PW 4 is equally unreliable and untrustworthy

witness. She has stated in the examination in chief that the prosecutrix

did not accompany her or PW 3 to the field of the accused. In the

cross-examination, in response to the question put by the learned APP,

she states that she does not know that at 3.30 p.m., the prosecutrix

came to her and others weeping. She does not know that the

prosecutrix asked the other woman labours to stop work and return

home.

8 The defence that the accused is falsely implicated must be

discarded. Nothing is brought on record to show that there was a theft

of Soyabin seeds. The evidence of PW 3 and PW 4, who are won over

by the defence, is untrustworthy. The defence made no effort to bring

on record any complaint lodged or action initiated by the accused

against the prosecutrix or her brother for committing theft.

The evidence of the prosecutrix is found to be reliable and

confidence inspiring by the learned Sessions Judge and I do not see

reason to take a different view.

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(i) The appeal is sans substance and is
rejected.

(ii) The bail bond of the accused shall stand
discharged and he shall be taken in
custody forthwith to serve the sentence.

(iii) The accused shall be entitled to the benefit
under section 428 of the Code of Criminal
Procedure.

(iv) Police Station Officer, Police Station
Malegaon, District Washim is directed to
file a compliance report in the Registry of
this Court within two weeks.

JUDGE

RSB

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