Bombay High Court
Sanjay S/O Madhav Thakare vs State Of Maharashtra, Through ... on 24 July, 2017
Bench: Z.A. Haq
Judgment 1 apeal2.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 2 OF 2016
Sanjay S/o. Mahadeo Thakare
Aged about 30 years, Occ.: Labour,
R/o. Mhaispur, Tq. Bhatkuli and
Distt. Amravati.
.... APPELLANT.
// VERSUS //
State of Maharashtra,
through P.S.O. Kholapur,
Tq. Bhatkuli, Dist. Amravati.
.... RESPONDENT
.
___________________________________________________________________
Shri V.B.Bhise, Advocate (Appointed) for Appellant.
Shri Neeraj Patil, A.P.P. for Respondent.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : JULY 24, 2017.
ORAL JUDGMENT :
1. The appellant has challenged the judgment passed by the
Sessions Court convicting him for the offences punishable under Section 8 of
the Protection of Children from Sexual Offences Act, 2012 and Section 354-A
of the Indian Penal Code and sentencing him to undergo rigorous
imprisonment for 3 years and pay fine of Rs.100/- and in default of payment
of fine to undergo further rigorous imprisonment for 4 days.
Judgment 2 apeal2.16.odt
The appellant is in jail. The appeal is admitted on 16 th April,
2016.
Criminal Application No. 286 of 2016 filed on behalf of the
appellant under Section 389 of the Code of Criminal Procedure praying for
suspension of sentence is adjourned on several occasions as the advocate
representing the appellant failed to appear and argue the matter. Ultimately,
when the application was listed on 20 th July, 2017, after noticing that the
advocate representing the appellant is not appearing, Shri V.B. Bhise,
Advocate is appointed to argue the matter.
As the appellant is in jail for more than 18 months, the learned
advocate for the appellant as well as learned A.P.P. have submitted that the
appeal be taken up for final hearing.
The record and proceedings are received. Hence, the matter is
taken up for final hearing.
2. The case of the prosecution is :
On 2nd February, 2014 at about 8.30 a.m. the victim, aged
about 15 years, had gone along with her two friends (Bharti and Kajal) and
Kajal's uncle-Gajanan to Borban. On way, the accused, who was known to
the victim and her friends, had joined them. On reaching Borban the girls
started collecting jujubes. The accused had asked Bharti and Kajal to go to
Judgment 3 apeal2.16.odt
lake and then while the victim was collecting jujubes the accused fondled
with the victim's breast, holding her from the backside. According to the
prosecution, Gajanan separated the victim from the accused and when the
accused was questioned he said that he had lost his balance and had fallen
over the victim.
3. The victim lodged complaint on the basis of which the first
information report was registered, investigation was undertaken and after
completing the formalities charge-sheet came to be filed. The charges were
framed, read-over and explained to the accused, the accused did not accept
the guilt and claimed to be tried and therefore, the trial is conducted. After
conducting the trial, the learned Sessions Judge concluded that the
prosecution has proved its case and has convicted the accused and sentenced
him as per the order.
4. The learned advocate for the appellant/ accused has submitted
that according to the victim, the incident occurred on 2 nd February, 2014 at
about 9.00 a.m., however, complaint is lodged on 3 rd February, 2014 at about
14.10 hrs. and delay in filing the complaint/F.I.R. is not explained. It is
argued that Bharti and Kajal who had accompanied the victim are not
examined. It is further pointed out that eye-witness Gajanan (P.W.3) has
turned hostile. Pointing out the discrepancies in the case of the prosecution,
it is argued that the impugned judgment is unsustainable and it cannot be
said that the prosecution has proved its case beyond doubt. It is prayed that
Judgment 4 apeal2.16.odt
the impugned judgment be set aside, the conviction of the appellant/ accused
be quashed and the appellant be acquitted of the charge levelled against him.
5. The learned A.P.P. has pointed out that the evidence of the
witnesses proves the occurrence of the incident beyond doubt and the
learned Sessions Judge has rightly recorded that the evidence of the victim
cannot be doubted. The learned A.P.P. has pointed out that the statement of
Gajanan (P.W.3) recorded under Section 164 of the Code of Criminal
Procedure supports the case of the prosecution. It is further pointed out that
the accused has changed his stand as reflected from his statement under
Section 313 of the Code of Criminal Procedure. The learned A.P.P. has
submitted that the Sessions Judge has properly appreciated the evidence on
record and the conclusions of the learned Sessions Judge are based on proper
appreciation of the evidence and the impugned judgment does not require
any interference by this Court.
6. With the assistance of the learned advocate for the appellant/
accused and the learned A.P.P., I have examined the record. The cross-
examination of the prosecution witnesses conducted on behalf of the accused
shows that the defence of the accused is that there was an unintentional dash
of the accused with the victim during distribution of jujube fruits. However,
in the statement under Section 313 of the Code of Criminal Procedure, the
accused came out with a stand that no such incident had occurred. The
Judgment 5 apeal2.16.odt
defence taken by the accused in the statement under Section 313 of the Code
of Criminal Procedure is inconsistent with the cross-examination of the
prosecution witnesses conducted on his behalf.
7. Though the learned advocate for the appellant relied heavily on
the fact that the eye-witness Gajanan (P.W.3) turned hostile and though he
has not supported the case of the prosecution his evidence shows that he
accepted that the incident had occurred. The evidence of the victim is very
clear and the accused has not been able to shatter her testimony in the cross-
examination.
8. I find that the non-examination of Bharti and Kajal also does
not have any adverse effect on the case of the prosecution as the prosecution
has not claimed that these two girls have witnessed the incident. I find that
the learned Sessions Judge has considered the evidence on record in the right
perspective and the conclusions of the learned Sessions Judge cannot be
faulted with. I see no reason to interfere with the impugned judgment.
The appeal is dismissed.
The fees of Shri V.B.Bhise, advocate appointed to represent the
appellant/ accused is quantified at Rs.Five Thousand.
JUDGE
RRaut..
