Prakash S/O Sukhdeo Bitlaye vs The State Of Maharashtra
2017 Latest Caselaw 8232 Bom

 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

 -------------------------------------------------------------------------------------------
          None for the Appellant.
          Miss. Trupthi Udeshi, Additional Public Prosecutor for 
          Respondent/State.
 -------------------------------------------------------------------------------------------

                                            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

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.

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

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

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

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.

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.

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