Bombay High Court
Shri Shivraj Chandrappa Yadav vs The State Of Maharashtra And Another on 6 March, 1998
Equivalent citations: 1998BOMCR(CRI)~, 1998CRILJ3168
Author: Vishnu Sahai
Bench: Vishnu Sahai
ORDER Vishnu Sahai, J.
1. By this Criminal Revision Application the petitioner has impugned the judgment and order dated 17th November, 1990 passed by the second Addition- al Sessions Judge, Kolhapur, in Criminal Appeal No.18 of 1989, maintaining the judgment and order dated 21.12.1988 passed by the Assistant Sessions Judge, Kolhapur, in Sessions Case No.130 of 1987 convicting and sentencing him in the manner stated hereinafter :
i) Under Section 354 of the Indian Penal code to under go R.I. for 2 years and to pay a fine of Rs.500/- in default to undergo R.I. for 1 month; and
ii) Under section 342 of the Indian Penal Code to undergo 6 months R.I. and to pay a fine of Rs.100/-, in default to undergo R.I. for 15 days.
The Substantive sentences of the petitioner were directed to run concurrently by the trial Court.
2. The concurrent finding of the courts below is that on 19.8.1987 at about 11.30 a.m. Sunita P.W.2, had come to the house of the petitioner to call his daughter Chingi. The petitioner asked Sunita to go inside his house and bring the tobacco packet for him and when Sunita went inside the house the petitioner followed him closed the front door, held Sunita, wrapped cloth around her mouth to frustrate her bid to cry and then at- tempted to commit rape on her by felling her down on a wooden trunk. The courts below have also found that Sunita removed the cloth wrapped around her mouth, shouted, released herself and thereafter ran away.
In my view the said finding of fact is based on credible and suffi- cient evidence. There is the unimpeachable evidence of Sunita P.W.2 who has testified about the facts mentioned in the preceding paragraph.
In my view the facts and set out in the preceding paragraph establish the commission of offences under sections 354 and 342 of the IPC against the petitioner.
3. It is well settled that where conviction is founded on a concurrent finding of fact the revisional court does not interfere unless they can be stigmatized as being perverse. Mr.B.R. Patil learned counsel for the peti- tioner failed to show me that the said finding can be castigated as per- verse. I also do not find the convictions and sentences of the petitioners to be vitiated by any illegality.
4. This leaves me with only question viz. that of sentence.
Mr.B.R.Patil, learned counsel for the petitioner strenuously urged that in as much as the incident took place nearly 11 years ago and the petitioner did not commit rape on Sunita, the ends of justice would be amply satisfied if his jail sentence is reduced to the period already undergone and in lieu thereof a substantial amount of fine, which should be directed to be paid as compensation to Sunita is imposed on him.
On the converse Mrs. J.S.Pawar, learned Additional Public Prosecutor, with tenatic fervour urged that the instant case does not warrant the slightest reduction of sentence. She urged that the evidence on record shows that Chingi, the daughter of the petitioner, whom Sunita had gone to call, when she became the victim of this abhorring incident, was a friend of her. She also urged that the petitioner was expected to behave like a guardian/uncle of Sunita but instead of so behaving showed the devil in him. When he asked her to go inside the house under the ploy of getting the tobacco packet, then stuffed cloth in her mouth and tried to commit rape on her by felling her on a wooden trunk. Mrs. Pawar urged that the act commit- ted by the petitioner is reprehensible and of a beastly nature. In her contention, if types of the petitioner are shown any mercy or sympathy people would lose confidence in the judicial system and that would be tragic. She also contended that the offence committed by the petitioner is a highly antisocial one and invited my attention to the age difference between the petitioner, who was aged about 35 years at the time of the incident, and Sunita, who was aged about 10 years at the said time.
5. After giving most anxious considerations to the rival contention. I find sufficient merit in the contention of Mrs.Pawar. In my view the peti- tioner does not deserve even an iota of sympathy. Accepting the submission of Mr.B.R.Patil in a case like this in my view, would be adding insult to the injury. Sunita would feel humiliated in realising that for the depraved act which the petitioner committed on her she is being monetarily compen- sated. It would rekindle the memories of the nauseating incident in her mind and revive the traumatic memories which after an efflux of time and with great difficulty she would have forgotten, 11 years ago when the incident took place.
6. In the result, I uphold the convictions and sentences of the petition- er for the offences punishable under sections 354 IPC and 342 IPC and dismiss this revision.
The petitioner is on bail. He shall be taken into custody forthwith to serve out his sentence.