Sunil Kaduba Sadashive vs The State Of Maharashtra
2017 Latest Caselaw 9782 Bom

                                         (1)                  Cri.Appeal No. 544/2002




         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO. 544 OF 2002

 Sunil Kaduba Sadashive
 Age : 31 years, occu.: labourer
 R/o Pimpalgaon Kolte,
 Taluka Bhokardan,
 District Jalna.
                                                                   Appellant.

                           Versus

 1.       The State of  Maharashtra
          Through Government Pleader,
          High Court, Bench at
          Aurangabad.

 2.       Saraswatibai w/o Salikram Ingle
          Age : 50 years, occu.: service
          R/o Pimpalgaon Kolte
          Taluka Bhokardan,
          District Jalna.                                       Respondents.

                                ***
 Mr. P.S. Shinde, Advocate holding for 
 Mr. S.G. Shinde, Advocate for the appellant.
 Mrs. M.A. Deshpande, A.P.P. for the State.

                                         ***

                                          CORAM : SUNIL K. KOTWAL, J. 

                                   Reserved on     :  15.12.2017.
                                   Pronounced on  :       19.12.2017.





                                          (2)                       Cri.Appeal No. 544/2002


 JUDGMENT : (PER SUNIL K. KOTWAL,J.)

1. This appeal is directed against the judgment and

order of conviction dated 04.09.2002 passed by 3rd Additional

Sessions Judge, Jalna in Sessions Case No.105/1998, convicting

the appellant/accused under Sections 363 and 354 of the

Indian Penal Code (For short "I.P.C.")

2. Respondent No.1 is the State of Maharashtra and

respondent No.2 is the informant.

3. The facts leading to institution of this appeal are

that the appellant was prosecuted for the offences punishable

under Sections 366 and 376 read with Section 511 of I.P.C., in

the alternate under Section 354 of I.P.C.

4. The prosecution case, in brief, is that the appellant

and the victim belonged to village Pimpalgaon Kolte and they

used to reside in one and the same area. Even the residence of

the accused was nearby the rented accommodation of the victim

where she resided with her mother Smt. Saraswati w/o

Shalikrao Ingle and sister. At the relevant time of the incident,

the victim was only 4 years old child.

(3) Cri.Appeal No. 544/2002

5. On 23.12.1992, when the victim was playing nearby

her house at about 3.00p.m., accused lifted and took her to his

house and after closing the door, put her on cot and removed

her nicker. Accused also unbuttoned the buckles of his pant and

lied on the body of the victim. Anyhow the victim managed to

rescue herself from the clutches of the accused and went to her

house while weeping. The victim disclosed occurrence to her

mother. However, at the relevant time the father of the victim

used to live at Pimpri Gawli, Taluka Khamgaon to look after his

agricultural land. Therefore, by writing a postcard to her

husband, Saraswatibai (PW-1), waited for him. After waiting

till 27.12.1992, Saraswatibai (PW-1) went to Police Station

Hasnabad and lodged F.I.R. (Exh.18) against the accused. In

the result, Crime No.80/1992 was registered against the

accused under Section 354 of I.P.C. in Police Station Hasnabad.

A.P.I. Atamaram Dhote (PW-4) conducted investigation of this

crime and drew spot panchanama (Exh.22). Charge-sheet was

filed before the Judicial Magistrate, First Class, Bhokardan

against the accused for the offence punishable under Section

354 of I.P.C.

(4) Cri.Appeal No. 544/2002

6. Later on considering the application filed by the

A.P.P., the trial Court committed this case to the Sessions Judge,

Jalna as the offence punishable under Section 376 read with

Section 511 of I.P.C. exclusively triable by the Court of Sessions,

was made out against the accused.

7. The then 3rd Additional Sessions Judge, Jalna

framed charge (Exh.15) against the accused for the offence

punishable under Sections 366, 376 read with Section 511 and

in alternate under Section 354 of I.P.C. Charge was explained to

the accused in Marathi. He pleaded not guilty and claimed trial.

8. After considering the evidence placed on record by

the prosecution, the learned trial Court pleased to convict the

accused for the offence punishable under Sections 363 and 354

of I.P.C. Therfore, the present appeal arises.

9. Heard the strenuous argument submitted by Mr. P.S.

Shinde, learned Counsel for the appellant and Smt. M.A.

Deshpande, learned A.P.P. for the State.

(5) Cri.Appeal No. 544/2002

10. Learned Counsel for the appellant submits that

though the offence was alleged to be committed on

23.12.1992, the F.I.R. was lodged on 27.12.1992 without

reasonable explanation. He submits that unreasonable delay in

lodging F.I.R. creates the possibility of concoction of false

evidence against the accused.

11. Learned Counsel for the appellant also assailed the

judgment passed by the trial Court on the ground that the trial

Court did not consider the material omissions emerged in the

testimony of Saraswatibai (PW-1) and the victim (PW-2). His

contention is that the testimony of Saraswatabai (PW-1) and the

victim (PW-2) is exactly identical and it suggests that the victim

was well tutored by her mother Saraswatabi (PW-1). Learned

Counsel for the appellant also invited my attention to some

variances in between the recitals of F.I.R. (Exh.18) and the oral

testimony of Saraswatibai (PW-1) and submitted that neither

the testimony of Saraswatabai (PW-1) nor the testimony of

victim (PW-2) is trustworthy to convict the accused without

corroboration.

(6) Cri.Appeal No. 544/2002

12. Learned A.P.P. for the State supported the judgment

passed by the trial Court and submitted that the omissions

pointed out by the learned defence counsel are not material

omissions which go to the root of basic version of both

prosecution witnesses. According to the learned A.P.P., minor

inconsistencies emerged in the evidence of the witnesses cannot

be viewed with suspicion when the informant Saraswatibai (PW-

1) had no reason to falsely implicate the accused in such type of

serious criminal case.

13. Learned A.P.P. explains the delay in lodging F.I.R. on

the ground that as the husband of the informant used to reside

at some another village, it was natural by the mother to wait for

her husband for reasonable period and thereafter to lodge

report with the help of available neighbours. She also submits

that when the chastity and character of the female child was at

stake, it was natural for a mother to think over for certain

period whether to inform the police about the occurrence or

not. Learned A.P.P. points out that in F.I.R. (Exh.18) itself the

reason for delay in lodging the F.I.R. is specifically given. She

placed reliance on the judgments in the cases of State of U.P.

(7) Cri.Appeal No. 544/2002

versus Harban Sahai and others reported in [(1998) 6 SCC

50] and Hem Raj and another versus State of Punjab

reported in (AIR 2002 SC 4259).

14. In the case at hand, only four witnesses are

examined by the prosecution. Saraswatibai (PW-1) is the

mother of victim. The victim stepped in witness box as PW-2.

Mohan Sadashive (PW-3) is the landlord as well as neighbour of

the informant and victim. A.P.I. Atamaram Dhote (PW-4) is the

Investigating Officer who has proved omissions emerged in the

testimony of prosecution witnesses and who has proved spot

panchnama (Exh.22).

15. Defence has not at all disputed the preparation of

spot panchanama (Exh.22) as well as the version of

Saraswatibai (PW-1) that the house of accused is near the house

of this witness. Even the testimony of victim (PW-2) is not

disputed that the house of accused is situated near one well.

Even the spot panchnama (Exh.22) shows that the spot of the

incident i.e. the house of accused is near the Government well

(8) Cri.Appeal No. 544/2002

which is described in the four-boundaries of the disputed spot.

Thus, the admitted position is that the accused and the victim

were nearby residents.

16. After going through the entire testimony of

Saraswatibai (PW-1) and victim (PW-2) it also becomes clear

that the informant Saraswatibai (PW-1) had no personal grudge

against the accused to falsely implicate him in any criminal

case. The victim (PW-2) was 4 years old child, and therefore,

the question of carrying any grudge against the accused by her

does not arise. During the cross-examination of these both

important witnesses, defence has not even suggested that these

both witnesses have any personal reason to falsely implicate the

accused in this case. It was tried to suggest that the landlord of

the informant was on inimical terms with the accused and at the

instance of landlord Mohan Sadashive (PW-3), the informant

Saraswatibai (PW-1) lodged false report against the accused.

However, even Mohan Sadashive (PW-3) has specifically denied

the inimical terms with the accused. Therefore, absolutely no

substance is on record which remotely suggest that Saraswatibai

(9) Cri.Appeal No. 544/2002

(PW-1) or the victim (PW-2) had any reason to falsely implicate

the accused in the present case. In the peculiar circumstances, I

have to examine the testimony of Saraswatibai (PW-1) and

victim (PW-2).

17. No doubt, Saraswatibai (PW-1) and victim (PW-2)

have categorically reproduced the occurrence in identical

manner with slight variance. However, only because the

testimony of these two important witnesses is consistent with

each other, an inference cannot be drawn that the victim (PW-2)

was tutored witness when Saraswatibai (PW-1) had no reason

to falsely implicate the accused in any criminal case. Therefore,

the testimony of these both witnesses cannot be doubted only

on the ground that their evidence before the Court is consistent

with each other. On the other hand, such type of consistency

also suggests the truthfulness of these both witnesses.

18. During the course of arguments, the learned defence

Counsel has taken much pains to point out the omissions

emerged in the testimony of Saraswatibai (PW-1) and victim

(10) Cri.Appeal No. 544/2002

(PW-2). When the help of the defence Counsel as well as

learned A.P.P., I have carefully considered the improvements

emerged in the testimony of these both prosecution witnesses.

19. From the evidence of Saraswatibai (PW-1) and the

victim (PW-2) it has come on record that on 23.12.1992 at

about 3.00 p.m. when the victim was playing outside her house,

that time Saraswatibai (PW-1) was taking rest. By taking

benefit of this situation, accused lifted the victim and took her

inside his nearby house and after closing the door, removed her

underwear. Accused also unbuttoned his pant and lied over the

body of victim on cot. Anyhow the victim managed to escape

from the clutches of accused and while weeping went to her

house and informed Saraswatibai (PW-1) about the occurrence.

In this testimony the improvement is only the word "latched".

However, from the F.I.R (Exh.18), it emerges that only the word

"latched" was no used. In the police statement instead of word

"latched" the word "closed" was used. Such type of minor

variance deserves to be ignored in toto.

(11) Cri.Appeal No. 544/2002

20. So also the another improvement in the testimony of

Saraswatibai (PW-1) is that, according to her, accused dropped

the victim on the cot. However, in F.I.R. (Exh.18) the word "cot"

is not mentioned. But in F.I.R. it is mentioned that the accused

took the victim inside the house and at that place outraged her

modesty. Such variance cannot be views with suspicion because

the basic version of the witnesses is regarding outraging

modesty of the victim by the accused inside the house of the

accused. When both the witnesses did not change the exact

place of occurrence i.e. the house of the accused, such type of

minor variance in the testimony of both witnesses deserves to be

ignored. Even in the testimony of victim (PW2), the variance

pointed out by learned defence Counsel is not material which

shakes the basic version of this witness. Even in the case of

Bharwada Bhoginbhai Hirjibhai vs. State of Gujrath reported

in (AIR 1983 Supreme Court 753), the Apex Court ruled that,

"Overmuch importance cannot be attached to minor discrepancies emerged in the testimony of prosecution witnesses. The reasons are obvious :-

(1) By and large a witness cannot be expected to possess a photographic memory and to recall

(12) Cri.Appeal No. 544/2002

the details of an incident. It is not as if a video tape is replayed on the mental screen.

(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which taken place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes

(13) Cri.Appeal No. 544/2002

so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him - perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment".

21. Learned defence counsel points out certain

conflicting versions of Saraswatibai (P.W.1) and victim (P.W.2)

regarding occurrence. However, after going through those

particular parts of the evidence, it emerges that, P.W.1 and P.W.2

are in conflict with each other regarding the statement as to

who opened the door of the house of accused after the

occurrence. According to Saraswatibai, when victim wept a lot,

accused threw her knicker out of the house and put the victim

out of the house. To the contrary, victim (P.W.2) deposes that,

she raised shouts and opened the door and went to her mother

in weeping condition. Thus, obviously, the conflict in between

these two statements is regarding the only manner in which

victim came outside the house and about throwing of knicker of

the victim. Thus, obviously, the basic version of these witnesses

is not changed that accused took the victim inside his house,

and by removing her knicker, outraged her modesty. Therefore,

(14) Cri.Appeal No. 544/2002

in view of law laid down by Apex Court in above cited authority,

such minor variance in testimony of victim and informant, who

deposed after lapse of 10 years from the date of incident,

deserves to be ignored.

22. Therefore, I do not find material improvement in the

testimony of prosecution witnesses which creates doubt about

the truthfulness of the version of these witnesses. On the other

hand, if the culture of village in India is considered in ordinary

course, no mother will level charge of sexual abuse of her own

female child, when the chastity of her child is at stake and for

scrutiny by public at large.

23. Learned defence Counsel also points out that the

prosecution did not record the statements of neighbours of the

informant. However, in the cross-examination of prosecution

witnesses it has not been brought on record that after the

occurrence, on hearing shouts of the victim, the neighbours

immediately gathered on the spot. Therefore, when no

neighbour reached on the spot immediately after occurrence of

(15) Cri.Appeal No. 544/2002

the incident, non examination of any neighbour by Investigating

Officer or even by prosecution as a witness cannot be viewed

with suspicion. Even the victim (PW-2) has only admitted in

her cross-examination that when she came outside the house of

the accused, she had seen 2/3 persons there. It does not mean

that those 2/3 persons, who were present on road, were the

neighbours who rushed on the spot after hearing shouts of the

victim. On the other hand, as the incident occurred at about

3.00 p.m., it is not probable that any male member would be

present in the house as it was working hours in the village. In

the circumstances, I do not find any substance in the objection

raised by learned defence Counsel regarding non examination

of any independent witness by the prosecution.

24. Learned defence counsel has placed much reliance

on admission of the victim (PW-2) that " I had gone to police

station after the incident. But I do not remember the date when

I had gone to police station". Learned defence Counsel tried to

interpret this admission in the manner that though victim had

gone to police station on the date of incident, she did not lodge

(16) Cri.Appeal No. 544/2002

report. However, this attempt of learned defence Counsel is

futile for the simple reason that the victim (PW-2) does not

admit that she had gone to police station on the date of the

incident. Undisputedly, the victim accompanied her mother

when the report was lodged on 27.12.1992. Therefore, the

above vague admission cannot be twisted to hold that after the

occurrence victim had gone to police station on the date of

incident, but did not lodge report.

25. Learned defence Counsel points out that in the F.I.R.

(Exh.18), full name of the accused is mentioned with his caste.

However, it cannot be ignored that the incident occurred in a

small village and the informant, victim and accused used to

reside in one and the same area and their houses were also near

each other. Therefore addressing the accused by full name with

caste in the F.I.R. cannot be doubted. So also addressing the

accused by pet name "Sunya" instead of "Sunil" while disclosure

of incident to her mother by victim is not unnatural

circumstance which creates doubt about the theory of the

prosecution.

(17) Cri.Appeal No. 544/2002

26. Much reliance was placed by defence Counsel on the

delay in lodging F.I.R. No doubt, when the incident occurred on

23.12.1992 and the F.I.R. was lodged on 27.12.1992, there is

inordinate delay in lodging the F.I.R. However, after going

through the F.I.R. (Exh.18), it becomes clear that the informant

has given explanation in the F.I.R. itself that the delay was

caused because the informant was waiting for her husband.

From the evidence it has also become clear that at the relevant

time of occurrence, husband of the informant used to live at

another village to look after his agricultural land. Therefore,

waiting period spent by the informant for arrival of her

husband, atleast for reasonable period of 4 days, is just and

natural conduct. So also taking the help of landlord Mohan

Sadashive (PW-3), who was also the Sarpanch of the village, is

also a natural conduct of the informant Saraswatibai (PW-1) as

till lodging the F.I.R. her husband did not reach the village

Pimpalgaon Kolte. So also only because Mohan Sadashive 9PW-

3) had given lift to the informant and victim for going to Police

Station, it cannot be said that the victim and informant deposed

(18) Cri.Appeal No. 544/2002

falsely at the instance of Mohan Sadashive (PW-3) when the

defence could not bring on record any substance to show that

Mohan Sadashive (PW-3) was on inimical terms with the

accused.

27. About delay in lodging the F.I.R., in the case of State

of Rajsthan Vs. Om Prakash reported in [2002 Cri.L.J. 2951

(SC)], the Apex Court observed that when reputation and

prestige of family and the career or life of victim is involved, it is

not at all unnatural for the family members to wait till arrival of

elders in the family, when the offence of this nature is

committed, before taking a decision to lodge report with the

police.

28. Even recently in the case of Mukesh and another

Vs. State (NCT of Delhi) and others reported in [(2017) 6

SCC 1], the Apex Court ruled that even a long delay in filing

occurred can be condoned if the witnesses on whose the

prosecution relies have no motive for implicating the accused.

Therefore, considering the overall circumstances of this case

(19) Cri.Appeal No. 544/2002

and the explanation given by the informant in the F.I.R. itself, I

find that the delay in lodging F.I.R. is properly explained by the

prosecution and that cannot be a ground to discard the truthful

testimony of the informant and the victim which is corroborated

by their landlord Mohan Sadashive (PW-3).

29. Accordingly, after careful examination of the

evidence placed on record as well as the scrutiny of the

judgment passed by the learned Trial Court, I find that no

illegality has been committed by the learned trial Court while

convicting the accused for the offence punishable under

Sections 363 and 354 of I.P.C.

30. Learned defence Counsel prayed for extending the

benefit of the Probation of Offenders Act in favour of the

appellant. However, as already considered by the learned trial

Court, the offence committed by the accused is a case of child

sexual abuse, which cannot be dealt with soft hand. Therefore,

considering the overall circumstances of the case, I do not find it

proper to extend the benefit of the Probation of Offenders Act in

(20) Cri.Appeal No. 544/2002

favour of the appellant/accused.

31. I hold that this appeal being devoid of merit,

deserves to be dismissed.

32. In the result, I pass the following order.

ORDER

1. The appeal is dismissed.

2. The appellant/accused shall surrender to his bail bonds before the trial Court immediately to undergo the sentence.

( SUNIL K. KOTWAL) JUDGE

*** vdd/