apeal430of10.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.430 OF 2010
Prakash s/o. Sukhdeo Bitlaye,
Aged about 40 years,
R/o. Village Jamb,
Tahsil Mohadi, District Bhandara .....APPELLANT
...V E R S U S...
State of Maharashtra,
through P.S.O. Andhalgaon,
Tahsil Mohadi, District Bhandara ....RESPONDENT
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None for the Appellant.
Miss. Trupthi Udeshi, Additional Public Prosecutor for
Respondent/State.
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CORAM: ROHIT B. DEO, J.
th DATE : 30 OCTOBER 2017 ORAL JUDGMENT:
The appeal was called out for final hearing on 9.10.2017. Since the learned counsel for the appellant did not appear, after hearing learned Additional Public Prosecutor for some time, the appeal was adjourned to 13.10.2017, subject to payment of costs. Again, there was no appearance on 13.10.2017. The appeal was adjourned today i.e. on 30.10.2017, subject to ::: Uploaded on - 30/10/2017 ::: Downloaded on - 01/11/2017 01:47:34 ::: apeal430of10.odt 2 payment of additional costs.
2 There is no appearance on behalf of the appellant even today. The costs have not been paid. It is more than apparent that this Court is not likely to be assisted in the matter by the learned counsel for appellant. This Court proposes to decide the appeal on merits after scrutiny of record consistent with the dictum of the Hon'ble Apex Court in Bani Singh Vs. State of Uttar Pradesh, AIR 1996(4)SCC720.
3 The challenge is to the judgment and order dated 28.05.2010 in Special Criminal Case (Atro) 7 of 2009 delivered by Additional Sessions Judge, Bhandara, by and under which, the appellant (hereinafter referred to as "the accused") is convicted for offence punishable under section 354 of Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for a period of three months and to payment of fine Rs. 5000/-. The accused also faced trial for offence punishable under section 323 of IPC and 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 of which offences the accused is acquitted.
::: Uploaded on - 30/10/2017 ::: Downloaded on - 01/11/2017 01:47:34 ::: apeal430of10.odt 3 4 Heard Miss. Trupthi Udeshi, the learned Additional Public Prosecutor for the State. With her able assistance, I have scrutinized the record.
5 The case of the prosecution, as is unfolded through the testimony of the complainant / PW 2 is thus:
PW 2 belongs to 'Gond' caste and is married to Sakharam who is examined as PW 5. As on the date of the incident, PW 2 was blessed with three daughters from the wedlock. 6 The incident occurred on 31.12.2008 at 10.30 a.m. or thereabout. The complainant PW 2 has deposed that she left her residence situated in village Deulgaon and was walking to village Jamb to meet one Raghorte madam in connection with sewing classes. PW 2 had traveled some distance by Deulgaon - Lanjera road when accused approached on a bicycle. The accused was known to PW 2. The accused inquired as to where PW 2 was going and when PW 2 told him that she was going to Jamb, the accused offered to give her a pillion ride. Since the accused was known to PW 2, she accepted the offer. The accused, after proceeding for some distance, asked PW 2 as to how many children did she have. The response was that PW 2 had three ::: Uploaded on - 30/10/2017 ::: Downloaded on - 01/11/2017 01:47:34 ::: apeal430of10.odt 4 daughters. It was then, that the accused said to PW 2 as to whether she needed a male child. PW 2 kept mum. The accused stopped his bicycle near one culvert by the side of the road and caught hold of the right hand of PW 2 and said her that if she wants male child, he will give it to her and dragged PW 2 for some distance. PW 2 resisted and the accused inflicted a slap blow on her left cheek.
PW 2 has deposed that the accused relented on noticing a motorcycle coming from Lanjera side. The complainant then proceeded towards Lanjera, hired a bicycle from cycle store of one Tijare and then went to Jamb. She has further deposed that Raghorte madam asked her as to why her cheek was swollen. PW 2 did not disclose anything about the incident and after completing sewing class, she returned home. It was only when her husband returned home between 9.00 to 10.00 p.m. that PW 2 disclosed the incident to him. On the next day, the complainant lodged a report. She was sent for medical examination. PW 2 has identified the printed First Information Report which is Exhibit 21. 7 The trend and tenor of the cross examination on behalf of the accused would suggest that the defence was of total denial and false implication. However, except a suggestion that 2 ::: Uploaded on - 30/10/2017 ::: Downloaded on - 01/11/2017 01:47:34 ::: apeal430of10.odt 5 to 2 ½ months ago, prior to the incident, there was a quarrel between the husband of the complainant and the accused, nothing is elicited from PW 2 to dent the credibility of the testimony. In paragraph 9 of the cross examination, it is elicited that the statement "do you want a male child, come on, I will give you", is an omission. However, the so called omission is not proved through the evidence of the Investigating Officer. That apart, the complainant / PW 2 has categorically stated before the police that such words were uttered by the accused.
I have given my anxious consideration to the testimony of the complainant. The testimony is implicitly reliable and confidence inspiring. Nothing is brought out in the cross- examination of the complainant / PW 2 to suggest that the accused is falsely implicated.
8 The testimony of PW 2 is more than amply corroborated by testimony of PW 3 Sukhdeo Tijare, the owner of cycle shop who states that when the complainant - PW 2 came to his shop at 12.00 noon or thereabout, she was looking frightened. PW 3 has deposed that the complainant hired a bicycle from his shop which she returned at 5.00 p.m. or thereabout. PW 4 - Janglu Salame has deposed that on the date of incident he saw the ::: Uploaded on - 30/10/2017 ::: Downloaded on - 01/11/2017 01:47:34 ::: apeal430of10.odt 6 complainant riding pillion on the bicycle of the accused Prakash, proceeding to village Jamb.
9 The husband of the complainant Sakharam is examined as PW 5. He has deposed that PW 2 narrated the incident after he returned home between 9.00 to 9.30 p.m. on 31.12.2008. He has denied the suggestion that the relationship between him and the accused is strained since 1 to 1 ½ years prior to the incident and that in view of the inimical relations, he has falsely implicated the accused with the assistance of the complainant / PW 2.
10 The evidence of PW 2 is broadly consistent with the oral report / First Information Report. In the circumstances, the First Information Report is lodged with reasonable promptitude. The complainant waited till her husband returned home between 9.00 to 9.30 p.m. and then disclosed the incident to her husband, which is a perfectly normal human conduct. The couple lodged the police report in the morning on the next day. The lodging of the First Information Report is not unreasonably delayed. The testimony of the complainant is per se confidence inspiring and the conviction could have rested on her uncorroborated testimony. ::: Uploaded on - 30/10/2017 ::: Downloaded on - 01/11/2017 01:47:34 ::: apeal430of10.odt 7 However, her testimony is more than amply corroborated by the testimony of PW 3 - Sukhdeo, PW 4 Janglu and PW 5 - Sakharam. It is true that the observation in the medico legal examination that the swelling on the cheek of the complainant is five hours old is inconsistent with the version of the complainant. But then, since I have found the testimony of the complainant implicitly reliable and corroborated by the evidence of the other witnesses examined, I am not persuaded to hold that the inconsistency between the medico legal report and the version of the complainant, is sufficient to render the version of the complainant doubtful. The accused is acquitted of offence punishable under section 323 of IPC and 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which finding is not challenged by the State.
11 I do not find any infirmity, factual or legal in the judgment impugned to the extent that the accused is convicted for offence punishable under section 354 of IPC. It is axiomatic that the acts of the accused have outraged the modesty of the complainant / PW 2. In so far as, the punishment is concerned, the learned Sessions judge has been more than liberal. The State has again not sought an enhancement of the sentence. ::: Uploaded on - 30/10/2017 ::: Downloaded on - 01/11/2017 01:47:34 ::: apeal430of10.odt 8
In view of the discussion supra, the appeal is sans merit and is rejected.
The bail bond shall stand cancelled.
The accused shall be taken into custody forthwith to serve the sentence.
JUDGE R S Belkhede ::: Uploaded on - 30/10/2017 ::: Downloaded on - 01/11/2017 01:47:34 :::