Bombay High Court
Shyam S/O Balkrishna Deshpande vs The State Of Maharashtra Thr. Pso Ps ... on 15 June, 2018
Author: Swapna Joshi
Bench: Swapna Joshi
Appeal.390.06
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 390/2006
Shyam s/o Balkrishna Deshpande
Aged about 37 years, occuL Private service
R/o Vasekar Layout, Onkar Nagar
Chadnrapur. . .. APPELLANT
versus
The State of Maharashtra
Through the Police Station Officer
P.S. Ramnagar, Chandrapur
Dist. Chandrapur. .. RESPONDENT
...............................................................................................................................................
Mr. A.A.Choube, Advocate for the appellant
Mr. Amit Chutke, Additional Public Prosecutor for respondent-State
................................................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED : 15th June, 2018
ORAL JUDGMENT:
1. The instant Appeal has been directed against the judgment and order dated 15.07.2006 passed by learned Ist Ad-hoc Additional Sessions Judge, Chandrapur in Sessions Case No.52/2005 convicting the appellant/accused of the offence punishable under Sections u/s.363 of the Indian Penal Code and sentencing him to suffer R.I. for one year and to pay a fine of Rs. 500/-, in default, to suffer R.I. for one month. The appellant/accused was further convicted of offence punishable u/s. 367of the IPC and sentenced to suffer RI for three years and to pay a fine of Rs.500/-, in default, to suffer RI for one month. Both substantive sentences were directed to be run concurrently. ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 01:36:25 :::
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2. The facts of case in a nutshell can summarized as follows:-
The complainant-Ishwar Shrawan Kudmethe (PW6) is a labourer residing at Visapur Fata, Tq.Ballarshah, Dist.Chandrapur. On 1.3.2005 at about 9.00pm when he was having his dinner, he heard the voice of children saying "vachava, vachava (save, save) from the side of the forest. On hearing this, the complainant and his neighbours proceeded in that direction to see as to what had happened. He saw a person beating small boys. He was having one motorcycle of Hero Honda make. The complainant asked him as to why he was beating the children. On this, the two boys informed him that they were from Chandrapur and the said person asked to have unnatural sexual intercourse with him. On this, the complainant made enquiry about their names and addresses.
Those two boys informed him that about 7.30 p.m. when they had gone to the medical shop for purchasing battery, while returning to their house, one person who was on a motorcycle met them near a shop and asked them to sit on his motorcycle and then told them that he would reach them to their respective houses. Then said person made them to sit forcibly and took them to Visapur forest. Thus, those two boys were taken by the appellant to the forest. At the relevant time, Sunil Bhosale (PW8) was attached to Ballarshah Police Station. He received information telephonically that one person was beating two minor children in Visapur forest. PW 8 sent the police personnel to bring that person. After some time, appellant was brought to the Police Station. In the meantime, PW6-Ishwar Kudmethe and those two children PW2-Mangesh and PW4- Shubham respectively also came to the Police Station. The complaint of Ishwar was recorded by PW8. On the basis of said complaint he registered offence vide C.R. No. ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 01:36:25 ::: Appeal.390.06 3 99/2005. The Police took charge of the motorcycle of the appellant under seizure Panchnama (Exh.38). The case papers were sent to Ramnagar Police Station as the incident had occurred within its jurisdiction. On 2nd March 2005, PSO-Ramkrishna Meshram (PW 9) registered the offence vide C.R. No.75/2005. PW9 then referred those two children to the General Hospital, Chandrapur for medical examination. PW9 recorded the spot panchnama (Exh.31). After recording statement of the witnesses and due investigation, PW9 submitted the charge-sheet in the Court of learned Judicial Magistrate, First Class. The case was committed to the Court of Sessions. Charge was framed and on analysis of the evidence and after hearing both sides, the learned trial Judge convicted the appellant as aforesaid.
3. I have heard Shri A.A. Choube, learned Advocate for the appellant and Shri Amit Chutke, elarned APP for the respondent-State. With their assistance I have gone through the record and proceedings of the case. The learned Advocate for the appellant contended that the learned trial Judge has not considered the evidence led by the prosecution in its right perspective and has erroneously convicted the appellant. He contended that the alleged incident had taken place during the night hours and no test identification parade has been conducted by the police and, as such, identity of the appellant has not been established at all beyond reasonable doubt. According to the appellant, he was working as a Warden in Sanmitra School which was at a distance of 1 km away from the incident. It was submitted that the appellant, while returning to the school, saw the children running on the road and therefore, he apprehended those ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 01:36:25 ::: Appeal.390.06 4 children thinking that those children were from his School and hence asked them to sit on his bike and was taking them to the Boarding school. Per contra, Mr.Amit Chutke, learned APP contended that both the witnesses have deposed before the Court that the appellant had taken them away with intention to sexually abuse them. He contended that the presence of the appellant with two children in the forest with two children has been established by the prosecution and according to him, the learned trial Judge has rightly convicted the appellant.
4. In order to bring home the guilt of the appellant, the prosecution has heavily relied upon the testimony of PW 2-Mangesh and PW4-Shubham, both are children, aged about 12 and 10 years old respectively. The prosecution has also examined father of PW4 and PW 6-Ishwar, who is the complainant.
5. The testimony of PW 6-Ishwar, the complainant, shows that on the date of incident at about 8.30 pm, while he was having his dinner, he heard shouts. His house is situated in the forest near Visapur road. He came out of the hut and started going towards the place from where he heard the shouts. He found one motorcycle halted at a distance of 300 ft. away from his house. The appellant was present there. The appellant was slapping a boy-Mangesh and another boy was running. PW 6 asked as to why he was beating the boy. Mangesh informed him that he had no relation with the appellant and said that they were brought by the appellant. Mangesh and the other boy informed him that appellant asked them to remove their pants as he wanted to ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 01:36:25 ::: Appeal.390.06 5 commit sexual intercourse with them. PW6 stated that he with the help of others, caught hold of the appellant and informed the Police and telephonically informed Ballarshah police station. After some time, the police reached the place of the incident and took the appellant and those children to the police station. PW 6 then lodged his complaint (Exh.
34) . During the cross-examination, PW6 admitted that there was a Sanmitra School at a distance of aout 700/800 feet from the place of the incident. The said version of PW6-Ishwar makes it clear that Sanmitra School where the appellant was posted as Warden, was near the place of the incident. It is worthwhile to note that the version of PW6 that the appellant asked PW2 and PW4 to remove their pants to commit carnal sexual intercourse with them is unbelievable. It is understandable that the children of 10 to 12 years old would understand the meaning of carnal sexual intercourse. The version of PW6 cannot be relied upon with regard to this aspect.
6. The deposition of PW2-Mangesh shows that on the date of incident at about 7.00 pm., he along with his friend-Shubham were playing in Sawari Bungalow square. While they were proceeding to purchase a battery, the appellant came on Hero Honda motorcycle. He halted the motorcycle near them and asked to show him the way of Jayant Talkies. Both the boys then boarded the said vehicle and showed the way of Jayant Talkies to the appellant. The appellant then said that they would roam and then stopped the motorcycle near the mutton market. He then took them in the forest of Visapur. The appellant halted his motorcycle in the forest. He slapped him as well as Subham. The appellant then asked him to untie his half pant. PW2 stated that he did not ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 01:36:25 ::: Appeal.390.06 6 remove his pant. Thereafter on the pretext of going for urination, he ran away at a distance of about 15 ft and shouted for help. PW2 stated that there were huts situated at the place of the incident. Some persons from the huts came out and then those persons came near the appellant. They then assaulted the appellant. After some time the police came there and took them to the Police Station. In the cross-examination, PW 2 admitted that they had crossed four traffic signals and at all the signals policemen were present. However the motorcycle of the appellant stopped only at the signal of Jayant Talkies. PW2 admitted that there was darkness near Sawari Bungalow square, therefore, he could not see the colour of the motorcycle. So also he could not observe the colour and kind of clothes on the person of the accused, who took them. He only stated that the person was of a fair complexion. The testimony of PW2 indicates that he had not properly seen the appellant as well his motorcycle as it was a night time and there was darkness. The improvements were pointed out in the testimony of PW2 to the effect that on the pretext of urination he ran up to 15 ft. Although it is an improvement, it appears that for the purpose of urination PW2 might have gone upto the distance of 15 ft. from the place where they had halted in the forest. It also indicates that as PW2 wanted to go for urination, the appellant might have halted the vehicle in the forest, prior to reaching the Sanmitra School. An improvement was also made by PW2 stating that appellant said to them that they will roam and PW2 had called the persons dwelling in the nearby huts. PW2 also denied that the person who carried them in the forest had left them in the forest and due to that they were weeping.
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7. The deposition of PW4-Shubham shows that on the date of the incident at about 8.00 pm he along with Mangesh was playing at Sawari Bungalow, appellant came on his bike and asked them to show the way to Jayant Talkies. They both boarded on the motorcycle and showed the way. The appellant then parked his motorcycle and carried them in the forest. The appellant asked Mangesh to remove his half pant however he did not do the same; the appellant then slapped Mangesh. Mangesh then ran away shouting as "Bachao, Bacho' thereafter some persons gathered there. They caught hold of the appellant. The appellant also asked him to remove his half pant. After some time police came and they all went to the Police Station.
8. It would be significant to note that PW4 who was aged about 10 years at the time of deposing before the court, has not stated that Mangesh was uttering Bachao, Bachao. In these circumstances it is not clear as to when exactly the appellant asked Mangesh to remove his half pant. According to PW4, appellant slapped Mangesh. However Mangesh did not state that accused slapped him as well as PW4. According to PW 4 appellant asked to remove his half pant. In this context, if at all the appellant had any intention to commit any indecent act with the PW2 and PW4 he would have immediately done the said act. It is also not the case of PW 2 and PW 4 that while they were taken into the forest, they raised an alarm. Interestingly, while they were brought from Sawari Bungalow to Visapur forest, PW2 and PW4 did not raise any alarm although 3 to 4 signals were there on their way. Similarly, they also did not raise any alarm when they noticed huts near the forest area. It is the case of PW2 as well as ::: Uploaded on - 22/06/2018 ::: Downloaded on - 23/06/2018 01:36:25 ::: Appeal.390.06 8 PW 4 that the appellant halted the motorcycle in the forest area, where at the distance of about 15 ft, the huts were situated. If at all the appellant was intending to do any bad act he would have not halted the motorcycle 50 ft. away from the huts and he would have taken those children to interior of the forest. However, the appellant has not done so. There appears to be some misunderstanding between the children the appellant. It is the case of the appellant that he wanted to take those children back to the Sanmitra School thinking that those children were from that school. Significantly, PW4 also stated that he was not knowing the appellant prior to the incident and he had not seen the face of the motorcyclist. The said version of PW 4 creates doubt about the identity of the appellant. In view of the fact that both the witnesses were not knowing the appellant and the incident of allegedly taking PW2 and PW4 from Sawari Bungalow square to the forest area, there was darkness and as no test identification parade in respect of the appellant has been carried out by the investigating agency, the identity of the appellant has not been established beyond reasonable doubt. So also, even assuming that the appellant was found by PW 6 -Ishwar at the place of the incident along with PW2 and PW4, there are no allegations of any overt act made by PW2 and PW4. It is not their case that the appellant has committed any overt act with them. The entire case put forth by the prosecution appears to be under the shadow of doubt. Although the presence of the appellant at the place of the incident has not been seriously disputed, his overt act with regard to his misbehaviour with PW2 and PW4, who are child witnesses, has not been proved beyond reasonable doubt. The testimony of PW2 and PW4 does not inspire confidence.
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9. The learned trial Judge has not considered the evidence led by the prosecution in its right perspective and has erroneously convicted the appellant. In view of the facts and circumstances, the impugned judgment needs to be quashed and set aside. Hence the order :
ORDER
a) Criminal Appeal No. 390/2006 is allowed.
b) The judgment of conviction and sentence dated 15.7.2006 passed by the learned 1st Ad-hoc Additional Sessions Judge, Chandrapur in Sessions Case No.62/2005 is hereby quashed and set aside.
c) The bail-bonds of the appellant shall stand cancelled.
JUDGE
sahare
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