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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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