Bombay High Court
Dhondba S/O Tukarm Khandare vs State Of Maharashtra, Through ... on 26 September, 2016
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION NO.119/2011
Dhondba s/o Tukaram Khandare,
aged about 44 years, Occ. Labourer,
r/o Marlegaon, Tq. Umarkhed,
Dist. Yavatmal. .....APPLICANT
...V E R S U S...
State of Maharashtra, through
Police Station, Umarkhed,
Tq. Umarkhed, Dist. Yavatmal.
ig ...NON APPLICANT
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None for the applicant.
Mr. M. M. Ekare, A.P.P. for non applicant-State.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 26.09.2016
ORAL JUDGMENT
1. Heard learned A.P.P. for the State-non applicant.
Learned counsel for the applicant chose to remain absent when the
matter was called for final hearing.
2. The challenge in the present revision is to concurrent
orders of conviction and sentence passed by the learned J.M.F.C.,
Umarkhed on 29.12.2003 in Regular Criminal Case No.172/1990
and Assistant Sessions Judge, Pusad on 19.08.2011 in Criminal
Appeal No.02/2004, thereby convicting the applicant for an
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offence punishable under Section 354 of the IPC and sentencing
him to undergo rigorous imprisonment for six months and to pay a
fine of Rs.500/-, in default of payment of fine to suffer simple
imprisonment for one month.
3. The FIR is lodged by father of the prosecutrix on the
next day of incident. The FIR is at Exh.-22 and the first informant
is examined by the prosecution as its PW1. From the FIR, it is
clear that the first informant was not present in the village on the
day of incident. Thus, what has been stated by the prosecutrix to
her father has been recited in the FIR.
4. The case of the prosecution revolves around the
evidence of the prosecutrix (PW2). At the material time, she was
taking education in T. C. Gawande College at Umarkhed. The
date of incident is 11.09.1990 at about 3.00 to 3.30 p.m.
According to the version of the prosecutrix, when she was doing
agricultural work in the agricultural field that time the present
applicant came in the field and outraged her modesty. The
evidence of the prosecutrix shows that during the process of
outraging her modesty, her blouse was torn and bangles were
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broken. As per the evidence of the prosecutrix herself, two
persons, apart from the sister Mugbai (PW4) were present. Those
are Pandurang Kale and Kisan Barde. After the hue and cry that
was raised by the prosecutrix, these persons came on the spot and,
therefore, the present applicant ran away from the spot. At that
time, he gave threats to the prosecutrix that he will commit rape
on her.
5.
In the present case, Pandurang Kale and Kisan Barde
are not examined by the prosecution. Even as per the prosecutrix,
their presence was immediate on the spot. Not only that, in their
presence a threat was extended to the prosecutrix. These two
independent witnesses could have thrown light on the incident as
alleged.
The sister of the prosecutrix Mugbai has stated in her
evidence that at the time of the incident she was also present in
the field and Pandurang and Kisan were also there and when the
applicant came, this prosecution witness was present at a short
distance. According to the version of this prosecution witness, the
applicant sat on the chest of the prosecutrix and pressed her breast
thereby he has outraged the modesty. This important aspect is
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absent from the version of the prosecutrix. Thus, there is variance
on this material point on the evidence of the prosecutrix and the
evidence of her sister.
6. Though, the spot panchanama Exh.-38 shows that there
were broken bangles merely on that point, the Court cannot jump
to the final conclusion especially when it is specifically the case of
the prosecutrix that in the incident her clothes were torn at the
hands of the present applicant. The Investigating Officer is not
examined in the present case. There is no seizure panchanama
available on record to show that clothes of the prosecutrix were
seized.
7. When there is a material discrepancy in the evidence of
the prosecutrix and the evidence of Mugabai, who was cited as an
eye witness so also non examination of the independent witnesses,
in my view, it will be hazardous to maintain the conviction as
recorded against the present applicant. From the cross-
examination it appears that the suggestions were given to the
prosecutrix who denied that there was love affair in between the
prosecutrix and the present applicant and both belong to different
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castes. At the time of incident, the applicant was 20 years of age.
Looking to this, I am of the considered view that the benefit of
doubt has to be extended in favour of the applicant.
8. In the result, the revision is allowed. The impugned
judgments and orders of sentence passed by the learned J.M.F.C.
Umarkhed in Regular Criminal Case No.172/1990 and learned
Assistant Sessions Judge, Pusad, in Criminal Appeal No.2/2004
dated 19.08.2011 are quashed and set aside. The applicant is
acquitted of the offence punishable under Section 354 of the IPC.
His bail bonds stand cancelled.
Fine amount, if any paid by the applicant, shall be
refunded to him.
JUDGE
kahale
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CERTIFICATE
I certify that this Judgment/Order uploaded is a true
and correct copy of original signed Judgment/Order.
Uploaded by: Y. A. Kahale Uploaded On:27.09.2016
