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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 109 OF 2005
APPELLANT :- Prakash s/o Mahadeo Dawade, Aged
about 29 years, Occu: Social Worker, R/o
Durgapur, Tahsil Dist. Chandrapur.
…VERSUS…
RESPONDENT :- The State of Maharashtra, through Police
Station Officer, Police Station Ramnagar,
Chandrapur.
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Mr. R.P.Joshi, counsel for the appellant.
Ms Swati Kolhe, APP for the respondent.
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CORAM : MANISH PITALE, J.
DATE : 31.07.2018.
O R A L J U D G M E N T
The appellant herein has challenged the judgment and
order dated 19/01/2005 passed by the Court of Ad hoc Additional
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Sessions Judge, Chandrapur (Trial Court) in Sessions Case No.75
of 2004, whereby the appellant was convicted for offence
punishable under section 354 of the Indian penal Code (IPC) and
sentenced to suffer simple imprisonment of three months and to
pay fine of Rs.1,000/-. The appellant was acquitted of offences
punishable under sections 376 and 376 read with section 511 of
the IPC.
2. As per the prosecution case, on 27/02/2004 the
prosecutrix (PW-4) was playing in the court-yard in front of her
house with her friend Santosh (PW-5). The appellant called the
prosecutrix into his house and took off her under garment and
touched her private part, due to which the prosecutrix PW-4
started crying. The appellant drove her out of the house. The
said Santosh PW-5 reported this incident to the mother of the
prosecutrix i.e. Vijaya Singh PW-1, who caused the first
information report (FIR) to be registered against the appellant on
the same day i.e. on 27/02/2004.
3. On the basis of the said FIR, investigation was
conducted and the appellant was charged for the aforesaid
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offences. In support of its case, the prosecution examined 10
witnesses of whom the material witnesses were the complainant
PW-1, the prosecutrix PW-4 and her friend Santosh PW-5. The
Trial Court found on the basis of oral and documentary evidence
on record that although charged under sections 376 or 376 read
with section 511 of the IPC, no case was made out against the
appellant. But, he was found guilty of offence punishable under
section 354 of the IPC, pertaining to assault or criminal force with
intent to outrage modesty. Consequently, the appellant was
convicted and sentenced in the aforesaid manner.
4. Mr. R.P. Joshi, learned counsel appearing on behalf of
the appellant, submitted that the evidence of the material
prosecution witnesses read together was not sufficient to support
the prosecution case and that the Trial Court had erred in passing
the impugned judgment and order.
5. On the other hand, Ms Swati Kolhe, learned APP
appearing on behalf of respondent-State, supported the impugned
judgment and order.
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6. Heard counsel for the parties and perused the record. A
perusal of the evidence of the material prosecution witnesses
shows that the prosecution case has been supported by the
witnesses and that they have remained steadfast in cross-
examination. PW-1 (complainant) the mother of the prosecutrix
has stated in detail as to what was narrated to her by her daughter
i.e. prosecutrix. She has stated that Santosh PW-5, friend of the
prosecutrix, who was playing with her had come to her and told
her that prosecutrix was crying and that there was some liquid
smeared on the frock worn by the prosecutrix. Upon the PW-1
enquiring from her daughter i.e. the prosecutrix, details of the
said incident were stated. On this basis, the aforesaid FIR was
registered.
7. The prosecutrix PW-4 has also clearly stated the manner
in which the appellant had touched her and how she had come
back to her house after having suffered the aforesaid experience at
the hands of the appellant. Santosh PW-5, friend of prosecutrix
has also deposed in favour of the prosecution and his statement in
evidence supports the testimony of the complainant PW-1. The
seizure of the clothes of the prosecutrix has been proved by the
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prosecution and the Chemical Analyzer (CA) Report on record
does show presence of semen on the frock of the prosecutrix.
8. The evidence of the prosecution witnesses thus shows
that the findings rendered by the Trial Court regarding the
appellant being guilty under section 354 of the IPC cannot be said
to be erroneous. The Trial Court has taken into consideration the
entire material on record and it has arrived at appropriate findings
based on correct appreciation of the evidence and material on
record. The Trial Court correctly concluded that there is lack of
evidence to prove the charge under either section 376 or section
376 read with section 511 of the IPC. The evidence on record has
been properly appreciated to come to the conclusion that the
offence punishable under section 354 of the IPC was made out
against the appellant.
9. In the light of the above, since no error appears in the
impugned judgment and order passed by the Trial Court, the
instant appeal is dismissed and the impugned judgment and order
passed by the Trial Court is confirmed. Since the appellant was
on bail, he shall be taken into custody for serving out the
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remaining part of the sentence. Needless to say, the appellant
shall be entitled to set off for the duration of custody that he had
already undergone during the pendency of the trial.
JUDGE
KHUNTE
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