2007 ALL MR (Cri) 1047
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
M.G. GAIKWAD, J.
Bhaskar Devchand Rathod (Wanjari)Vs.State Of Maharashtra
Criminal Appeal No.131 of 2004
11th October, 2006
Petitioner Counsel: R. P. BHUMKAR
Respondent Counsel: B. J. SONAWANE
Penal Code (1860), Ss.448, 354 - Criminal P.C. (1973), S.374 - Appeal against conviction - Accused outraging modesty of minor girl - Accused convicted u/Ss 448, 354 filing appeal against conviction - Testimony of minor girl also corroborated by other witnesses including medical evidence - Held, in given facts appeal is without merit and deserves to be dismissed. (Paras 8, 9, 13, 14)
2. This appeal is directed against the judgement dated 30-1-2004 passed in Special Case No.5/2001 whereby the learned IInd Ad-hoc Additional Sessions Judge, Jalgaon convicted the appellant/accused for the offence punishable under section 448 of IPC and 354 of IPC and sentenced him to suffer rigorous imprisonment for one year and fine of Rs.500/- for the offence under section 448 of IPC and to suffer rigorous imprisonment for one and half year and fine of Rs.500/- for the offence under section 354 of IPC.
On 12-1-2001, father of the victim had gone out of the village to attend the labour work and the mother of the victim had gone to another village to meet her sister. At about 3 p.m., when the victim was in sleep on a cot inside her house, the accused who is her neighbour entered into the house of complainant and sat on the cot where the victim had slept. As soon as he sat on the cot, she woke up and made a query as to why he had entered her house. Thereupon, he replied that he entered the house to have a mirror. He was questioned by the victim as to whether he is not having mirror in his house. Then immediately, the accused caught hold of victim and squeezed her breasts and expressed his desire to have sexual intercourse with her. Thereafter, the victim raised cry. Her friend P.W.2 Durga Chavan, hearing hue and cry of the victim, arrived there and thereafter, the accused ran away from her house. The victim narrated the incident to her maternal aunt Indubai Khaire. The accused was caught hold by the villagers. In the evening, when the mother of victim arrived to her house, she narrated the incident to her mother also. Thereafter, the matter was reported to the police. Head Constable P.C. Kuwar recorded the complaint of the victim and on that complaint, registered an offence vide C.R. No.5/2001. The accused came to be arrested on the same day. The victim was referred for medical examination. P.W.7 Dr. Prakash Mahajan examined her and issued certificate (Exh-31). No visible injuries were found on the person of the victim, but doctor noticed redness on her chest. Thereafter, spot panchanama (Exh-25) came to be recorded. Completing other formalities of investigation, charge-sheet came to be filed against the accused for the offence punishable under sections 3(1)(xi) of the Scheduled Caste, Scheduled Tribe (Prevention of Atrocity) Act, 1989 as well as under sections 448 and 354 of IPC, in the Court of Judicial Magistrate First Class at Jamner, who committed the case to the Court of Sessions at Jalgaon.
The learned IInd Ad hoc Additional Sessions Judge, Jalgaon framed charge at Exh-6 against the accused for all three offences i.e. under section 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 and under sections 448 and 354 of IPC. The accused pleaded not guilty of the charges and claimed to be tried. At the trial, his defence was that he has been falsely implicated in this case. He also put forth a defence of alibi and examined one witness i.e. his own wife D.W.1 Kawiribai.
4. The prosecution, at the trial, did examine P.W.1, the victim, her friend P.W.2 Durga Chavan who claimed to be an eye-witness of the incident, P.W.3 Sushilabai Pawar, the mother of the victim who proved disclosure made with her by the victim. P.W.4 Vishal Jadhav proved spot panchanama (Exh-25). P.W.5 Liladhar Patil is the Assistant Teacher from the school who proved the entries in the school register relating to the brother of the victim. P.W.6 Tejbahadur is the Investigating Officer and P.W.7 Dr. Prakash Mahajan who examined the victim. After considering this evidence, the accused came to be acquitted of the offence punishable under section 3(1)(xi) of the Scheduled Caste, Scheduled Tribe (Prevention of Atrocity) Act, 1989. However, relying upon the testimony of the victim P.W.1 corroborated by her friend P.W.2 Durga and the medical evidence of P.W.7 Dr. Mahajan, the accused came to be convicted for the offence punishable under sections 448 and 354 of IPC and sentenced accordingly.
5. Feeling aggrieved with the said order of conviction and sentence, the accused preferred present appeal. This Court had granted bail by suspending the sentence by order dated 30-4-2004; however, as per directions of this Court, the accused did not execute the bail bonds, hence, the order came to be recalled and the accused was re-arrested on 15-12-2005 and sent to jail. He being in jail, hearing of this appeal was expedited. As the accused did not engage any lawyer on his behalf and as he was not represented by any lawyer, learned Advocate Shri. R. P. Bhumkar was appointed as an Advocate to defend the case of the appellant/accused, by order dated 29-09-2006; at the State expenses.
6. Learned Advocate (appointed) Shri. Bhumkar, appearing on behalf of the appellant submitted that the appellant/accused is a married man. He is having a daughter of an age group of the victim i.e. about eleven years old, hence, there appears no possibility of commission of the alleged offence at the hands of the accused. He has further pointed out from the version of the victim herself that at the time of the incident, the accused was under intoxication. Hence, his act cannot be said to be an offence. Alternate submission by learned Advocate Shri. Bhumkar is that the order of sentence be modified and the accused be released imposing the sentence which he has already undergone.
On the other hand, learned APP Shri. Sonawane supported the order of conviction and sentence. According to him, the accused put forth a defence of alibi and in support of his defence, he has examined his own wife. Said defence is found false. The version of the victim is corroborated by the evidence of her friend P.W.2 Durga and also by medical evidence. Thus, there are no infirmities in the evidence. There are no grounds for the minor girl to falsely implicate the accused in such a case. As such, the order does not suffer from any infirmity and considering the act of the accused, he is not entitled for any leniency.
7. There is no dispute that the victim and the accused reside in one and the same locality. P.W.2 Durga who is the friend of the victim P.W.1 also resides in the same locality. Nothing is there on record to show any previous enmity between the family of the complainant and the accused. The accused, in his statement under section 313 of the Code of Criminal Procedure, has stated that as a false complaint is lodged against him, the witnesses are giving false evidence at the trial. In his said statement, he has not put forth a defence of alibi; however, he examined his wife D.W.1 Kawiribai who has stated that on 12-01-2001 i.e. the day of incident, her husband had gone out of the village for labour work and at the time of incident, he was not at the house. However, in the cross-examination, she has admitted that at the time of incident, she was not present at the house, but was working in one field as a labourer. In view of this statement made by her, it can be said that she is having no knowledge about the incident and she was also not having any knowledge as to whether her husband was in the house at the time of incident and her said statement is not sufficient in proof of defence of alibi.
8. Whether the defence of the accused is probable or not, is irrelevant as it is for the prosecution to prove their own case. Unless the prosecution establishes its own case by valid evidence, conviction cannot be recorded on account of falsity in the defence. The incident was alleged to have taken place on 12-1-2001 at 3 p.m. As per complaint (Exh- 14), lodged on the same day, the victim alleged that when she alone was in the house, the accused entered into house on the pretext of demanding a mirror and when the victim questioned him as to why he had entered the house, he caught her and squeezed her breasts and expressed his desire to have sexual intercourse with her and when she raised hue and cry, her friend P.W.2 Durga came there and then, the accused ran away. It is specifically alleged in this complaint that her mother had gone to another village and the father had left the house for labour work. At the trial also, P.W.1 - the victim narrated the same story that when she alone was inside the house, the accused having consumed liquor, entered the house and made demand of a mirror and when she questioned him as to why he had entered her house, the accused squeezed her breasts and also gagged her mouth and asked her to allow him to have sexual intercourse and thereafter, she started shouting. Hence, hearing hue and cry of the victim, P.W.2 Durga arrived there and accused then ran away. Though a lengthy cross-examination of the victim was held, no material could be brought on record to discredit her version. She has specifically stated that prior to the incident, there were no quarrels between the two families and she denied the suggestion that there was some dispute between her parents and the accused. Except this suggestion, defence could not bring on record any material to show any such dispute. This minor witness stood to the test of cross-examination. No material could be brought on record to point out the possibility of tutoring. There are no grounds for this child to lodge any such complaint against him. The testimony of the victim is corroborated by the evidence of her friend P.W.2 Durga.
According to P.W.2 Durga, before this incident, she had seen the accused entering in the house of P.W.1 the victim. She also heard that he made demand of mirror with the victim and thereafter, she had seen the accused pressing the breasts of the victim and then, the victim raised shouts. P.W.2 Durga therefore rushed to the spot. She admitted in cross-examination that she is having friendly relations with the children of the accused. In the cross-examination, it was brought on record that she is giving statement as per the say of her parents. However, she denied that there was any type of dispute or quarrel between the parents of P.W.1 victim and the present accused. She, as per her own version, is having friendly relations with the accused. Nothing is brought on record to show that her parents are having any grievance or grudge against the accused because of which they will try to falsely implicate the accused in such a case. This evidence of P.W.2 Durga fully corroborates the testimony of the victim.
9. Admittedly, P.W.3 Sushilabai, the mother of the victim was not present at the house as she had gone to other village. As per her version, she returned to her house at 5 p.m. and on her arrival, P.W.1 the victim disclosed the incident to her in detail and thereafter, she took her to the Police Station. In the cross-examination, it was brought on record that both the families were not on talking terms with each other. However, it is clarified by this witness that there was no any special reasons for the same. Though they were not on visiting terms, she has specifically stated that the children from both the families used to play together. Except a suggestion that on account of previous enmity, accused is falsely implicated in this case, no material could be brought in the cross-examination of this witness to infer or suggest any such previous enmity. Hence, the evidence of this witness mother of the victim proved the subsequent conduct of the victim after the incident, which conduct is relevant.
10. The last piece of evidence corroborating the testimony of the victim (P.W.1) is the medical evidence. P.W.7 Dr. Prakash Mahajan examined the victim on the same day at 9.10 pm. He has specifically stated that he did not find any obvious injury except the redness on the breasts of the victim. In the cross-examination, it was asked to him as to whether said redness is possible if a person slips on the chest for a considerable long time. Doctor denied that possibility. Nothing could be brought on record in the cross-examination of this witness also. On the contrary, this medical evidence corroborated the version of the victim that her breasts were squeezed, hence. The doctor (P.W.7) noticed the marks of redness at the time of her medical examination.
11. The learned Additional Sessions Judge relying upon the evidence of above referred witnesses held the accused guilty of the offences punishable under sections 448 and 354 of IPC. As submission was made on behalf of the appellant that the evidence was not considered by the learned Additional Sessions Judge in proper perspective, the evidence is re-appreciated and after re-appreciation of the evidence also, no infirmities are found either in appreciation of evidence or in the conclusions drawn by the trial Court.
12. On behalf of the appellant/accused, learned advocate Shri. Bhumkar made an alternative submission that the order of sentence may be modified and the accused/appellant be released imposing sentence which he has already undergone. The accused and the victim were the neighbours. At the time of incident, the victim was of an age of about ten years. The accused himself is having a daughter of age group of the victim. He was not expected to behave in such manner with a child of age group of his daughter. Such persons are, therefore, not at all entitled for any leniency. Thus, this is not a fit case to modify the sentence awarded against the accused by the trial Court.
13. In view of the facts and circumstances, referred above, as no infirmities are found in the judgement of the trial Court, present appeal of the appellant/accused is found without any merit. Hence, the same needs to be dismissed.
14. In the result, Criminal Appeal No.131/2004, preferred by the appellant/ accused is hereby dismissed. The order of conviction and sentence passed against him in Special Case No.5/2001 for the offences punishable under section 354 of IPC, is hereby confirmed.