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Prakash Mahadeo Kawade vs The State Of Mah.Thr.Pso … on 31 July, 2018

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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.

—————————————————————————————————
Mr. R.P.Joshi, counsel for the appellant.
Ms Swati Kolhe, APP for the respondent.
—————————————————————————————————

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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