Maroti Mahaduji Wankhede vs The State Of Mah.Thr.Pso Amravati
2018 Latest Caselaw 11 Bom

                                        1                                         apeal33.06




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.33 OF 2006


 Maroti Mahaduji Wankhede,
 Aged about 60 years, 
 R/o Karla, Tahsil - Anjangaon Surji,
 District - Amravati.                                           ....       APPELLANT


                     VERSUS


 The State of Maharashtra, 
 through P.S.O., Anjangaon Surji,
 District - Amravati.                                           ....       RESPONDENT

 ______________________________________________________________

                Shri V.S. Bapat, Advocate for the appellant, 
    Shri N.B. Jawade, Additional Public Prosecutor for the respondent.
  ______________________________________________________________

                            CORAM : ROHIT B. DEO, J.

  DATE OF RESERVING THE JUDGMENT          
                                          : 04-10-2017
  DATE OF PRONOUNCING THE JUDGMENT        : 04-01-2018

 JUDGMENT : 

The accused faced trial for offence punishable under

Section 376 (2)(f) of the Indian Penal Code ("IPC" for short) and is

convicted for offence punishable under Section 354 of the Indian Penal

Code and is sentenced to suffer rigorous imprisonment for two years

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and to payment of fine of Rs.2,000/- by the judgment and order dated

07-1-2006 passed by the learned IInd Ad hoc Additional Sessions

Judge, Achalpur, which is assailed in the appeal.

2. The gist of the prosecution case is that at 4-00 p.m. on

24-1-2003 when the child victim, then aged 6 years, was playing on a

bullock-cart, the accused approached her, bodily lifted her and took her

to the banana orchard of one Chandrasen Wankhade. The child victim

was made to lie on the ground, the accused removed his dhoti and the

knicker of the child victim and slept over the person of the child victim.

The parents of the child victim arrived at the scene, a verbal altercation

ensued and the accused threatened Ashok-the father of the child victim

with a stick and left the spot. The father of the child victim made

enquiries, the child victim narrated the incident to her father Ashok

who then went to the residence of his employer Chandrasen, who was

not present in the house. Ashok waited for Chandrasen to return till

evening and then went to Anjangaon Police Station with the child

victim and lodged the report on the basis of which offence punishable

under Sections 376 and 354 of the IPC was registered and then the

child victim was sent for medical examination.

Police Sub-Inspector Dhere visited the spot, prepared the

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spot panchanama (Exhibit 14), seized clothes wore by the child victim,

arrested the accused and seized his clothes vide Exhibit 16, collected

blood sample and vaginal swab of the child victim and collected seized

blood and semen sample of the accused. The seized articles were sent

to Chemical Analyzer, Nagpur. Upon completion of the investigation,

charge-sheet was submitted in the Court of Judicial Magistrate First

Class, Anjangaon Surji who committed the case to the Sessions Court.

The learned Sessions Judge framed charge under Section

376(2)(f) of the IPC against the accused. The accused pleaded not

guilty and claimed to be tried. The defence of the accused is that since

there was a quarrel between the father of the child victim and the

accused on the issue of cutting grass, he is falsely implicated.

3. The spot panchanama, the medical examination certificate

of the child victim (Exhibit 25) and that of the accused (Exhibit 27) are

admitted by the defence. The prosecution examined four witnesses.

4. P.W.1 is the complainant Ashok, P.W.2 is the child victim,

P.W.3 is the investigating officer Police Sub-Inspector Dhere and P.W.4

is a police officer Assistant Police Inspector Rohom.

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5. The learned Sessions Judge was pleased to record a

finding that although the prosecution failed to prove offence

punishable under Section 376(2)(f) of the IPC, offence punishable

under Section 354 of the IPC is proved beyond reasonable doubt.

6. Shri V.S. Bapat, learned Advocate for the accused contends

that the judgment and order impugned is against the weight of the

evidence on record. It is admitted by both P.W.1 Ashok and P.W.2

child victim that there was a quarrel between P.W.1 Ashok and the

accused and the bone of contention was cutting of grass. The accused

was a watchman, and is falsely implicated in view of the altercation, is

the submission.

7. Per contra, Shri N.B. Jawade, learned Additional Public

Prosecutor for the State submits that although the witnesses have

candidly admitted that there was a quarrel, the evidence of the child

victim and her father Ashok is not rendered doubtful only because

there was a quarrel between P.W.1 Ashok and the accused. The

submission is, that it would be rare, if at all, that a father would use a

six years old child to wreak vengeance only because there was a petty

quarrel. The evidence of child victim has gone virtually unchallenged,

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is the submission.

8. P.W.1 Ashok, who lodged the report Exhibit 12, has

deposed that it was 4-00 p.m. on 24-1-2003 while he was cultivating

the field of Chandrasen, that one Chandu Chavan told him that the

accused took the child victim to the banana orchard. P.W.1 Ashok

immediately went to his wife who was plucking cotton near the banana

orchard and informed her that the accused had taken Shalu to the

banana orchard. P.W.1 then states that he and his wife entered the

banana orchard looking for the child victim and saw that the accused

was sitting on the person of the child victim. The accused was naked

and the underwear of the child victim was lying on the spot. P.W.1

states that he and his wife confronted the accused and the accused

threatened P.W.1 brandishing a stick. P.W.1 states that upon enquiries,

the child victim revealed that the accused lifted and brought her in the

banana orchard, removed his dhoti, removed her underwear and sat on

her person. P.W.1 went to the house of his employer Chandrasen who

was not present and after waiting for him till the evening, he lodged

the report. The deposition is broadly consistent with the substratum of

the first information report.

In the cross-examination, it is extracted from P.W.1 that

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besides P.W.1 and his wife there were other labours working in the

field of Chandrasen and that P.W.1 and others were collecting grass.

The accused objected and told P.W.1 and others that they were

engaged only to do labour work and should not collect the grass and

that the objection taken by the accused angered P.W.1 and others.

9. The child victim is examined as P.W.2. She has deposed

that when she was sitting on the bullock-cart, the accused came, lifted

and took her in the banana orchard, the accused removed his dhoti and

the knicker of the child victim and slept over her body. P.W.1 arrived

at the scene and was threatened by the accused who was brandishing a

stick.

10. Surprisingly, the entire evidence on the core aspect of the

incident has gone unchallenged. The only admission extracted is that

there was a quarrel between the child victim and the accused on the

issue of cutting of grass. A stray answer is extracted which is to the

effect that the parents told to the child victim how to depose in the

Court. However, not even a suggestion was given to the child victim

that the incident did not occur as deposed by her.

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11. The evidence of P.W.3 Dhere and P.W.4 Rohom is not very

material in the context of the factual matrix. P.W.3 is the investigating

officer through whom two omissions in the evidence of P.W.1 Ashok

are proved. The first is that P.W.1 did not state in the first information

report that he went to his wife and alongwith her went to the banana

orchard and the second is, that P.W.1 did not state that the accused

raised the stick. The omissions are qua the first information report,

which is not expected to be an encyclopedia. Even otherwise, the

omissions are minor and insignificant and do not dent the credibility of

the deposition of P.W.1. P.W.4 is examined to prove the printed first

information report (Exhibit 35). P.W.4 registered the offence.

12. I have already noted that the evidence of the child victim

has gone virtually unchallenged. The stray answer that she was told by

her parents how to depose is of little significance. No suggestion was

given to the child victim that the incident did not occur as deposed. No

suggestion was given to the child victim that the child victim was not

stating the truth. Looking at the age of the child victim, there is

absolutely nothing wrong if she is advised how to depose. This per se

would not lead to the inference that she was tutored. The advice, may

as well even to depose the truth without being overawed by the

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occasion. The learned Sessions Judge has recorded a finding that the

evidence of the child victim is reliable, trust worthy and confidence

inspiring. I do not see any reason to take a view different from that

taken by the learned Sessions Judge.

13. The appeal is sans merit and is dismissed. The bail bond of

the accused shall stand cancelled and he be taken into custody to serve

the remainder of the sentence.

JUDGE adgokar