Bombay High Court
Janardan Uttam Devale vs State Of Mah.Thr.Pso Washim on 15 February, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal215of06
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 ::: Uploaded on - 15/02/2018 ::: Downloaded on - 17/02/2018 01:54:01 ::: 2 apeal215of06 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 ::: Uploaded on - 15/02/2018 ::: Downloaded on - 17/02/2018 01:54:01 ::: 3 apeal215of06 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 ::: Uploaded on - 15/02/2018 ::: Downloaded on - 17/02/2018 01:54:01 ::: 4 apeal215of06 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 ::: Uploaded on - 15/02/2018 ::: Downloaded on - 17/02/2018 01:54:01 ::: 5 apeal215of06 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 ::: Uploaded on - 15/02/2018 ::: Downloaded on - 17/02/2018 01:54:01 ::: 6 apeal215of06 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.
::: Uploaded on - 15/02/2018 ::: Downloaded on - 17/02/2018 01:54:01 ::: 7 apeal215of06 (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 ::: Uploaded on - 15/02/2018 ::: Downloaded on - 17/02/2018 01:54:01 :::