Fakkad Narayan Shinde vs The State Of Maharashtra
2021 Latest Caselaw 10250 Bom

                                                       Criminal Appeal No.336/2018
                                           :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.336 OF 2018



 Fakkad Narayan Shinde
 Age 41 years, Occu. Service,
 R/o Khalwandi, Kharwandi,
 Tq. Newasa, District Ahmednagar                          ... APPELLANT

          VERSUS

 The State of Maharashtra,
 through the Police Station Officer,
 Police Station, Shani Shingnapur,
 Tq. Newasa, District Ahmednagar                          ... RESPONDENT

                              .......
 Mr. V.D. Sapkal, Advocate for appellant
 Mr. S.N. Morampalle, A.P.P. for respondent - State
                              .......

                                   CORAM :           R. G. AVACHAT, J.


                  Date of reserving judgment : 3rd July, 2021
                  Date of pronouncing judgment : 4th August, 2021


 JUDGMENT:

This appeal is directed against the judgment and

order dated 25/4/2018, passed by learned Additional Sessions

Judge, Newasa, District Ahmednagar in Special Case

No.10/2017, convicting the appellant for the offences

punishable under Sections 8 and 10 of the Protection of

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Children from Sexual Offences Act, 2012 (POCSO Act for

short) and sentencing him to suffer rigorous imprisonment for

seven years and to pay fine of Rs.10,000/-, in default to

suffer simple imprisonment for six months. The appellant is

also convicted for the offence punishable under Sections 354-

A and 506 of the Indian Penal Code (IPC for short) and

sentenced to suffer rigorous imprisonment for six months.

Both the sentences have been directed to run concurrently.

2. Facts giving rise to the present appeal are as

follows :

Santosh (P.W.12 informant) is a resident of

Hingoni, Taluka Newasa, District Ahmednagar. He has two

daughters. His younger daughter, X was in 4 th Standard in

Zilla Parishad Primary School in the year 2017. the informant

returned home from his field in the evening of 22/2/2017. His

wife Sunita (P.W.1) informed him that the appellant, teacher

in the school sexually abused X. The informant and his wife,

therefore, approached some of the parents of the girls who

were classmates of X. The parents, therefore, enquired with

their respective daughters and thereupon realised that their

daughters had also been abused the way X was. All of them,

therefore, first approached the Village Sarpanch. Then the

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informant lodged the F.I.R. (Exh.64) with Shani Shingnapur

Police Station for the offence punishable under Sections 354-A

and 506 of the Indian Penal Code and Sections 8, 9 and 12 of

the Protection of Children from Sexual Offences Act. Vaibhav

(P.W.13), Police Sub-Inspector serving with Shani Shingnapur

Police Station was entrusted with the investigation. He first

paid visit to the school. Drew the scene of panchanama.

Recorded statements of the victim girls and persons

acquainted with the facts and circumstances of the case. On

completion of investigation, the appellant was proceeded

against by filing the charge sheet.

3. The learned Judge framed the charge (Exh.8).

The appellant pleaded not guilty. His case is of false

implication.

4. To bring home the charge, the prosecution

examined 13 witnesses and tendered in evidence documents

in the nature of scene of offence panchanama etc.

5. It is the case of the prosecution that the appellant

sexually abused minor school girls. All these girls had

appeared before the Trial Court. 2 -3 of them have not been

examined since due to their age, the girls were unable to

understand the nature of questions and give rational answers

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thereto. P.W.1 to P.W.3 are the mothers of the victim girls X,

X-1 and X-2 respectively. I do not propose to refer to the

evidence of mothers of the victims since the same is hearsay.

6. Let us now turn to the evidence in the case. As

stated above, P.W.12 Santosh is the informant. He did lodge

the F.I.R. (Exh.64). It is in his evidence that, on 20/2/2017

by 7.00 p.m., he returned home. His wife Sunita (P.W.1)

informed him the appellant to have sexually abused their

daughter. He, therefore, enquired with his daughter. Then

both Santosh and his wife went to parents of friends

(classmates) of X. On enquired with classmates of X, it was

realised, they too had been abused the way X was. The

parents of the girls, therefore, approached the Village

Sarpanch and then Santosh (P.W.12) lodged the F.I.R.

In cross-examination of P.W.12-Santosh suggestions

in the nature of appellant's defence were put. He did not give

in to any of the questions. Although his relations with the

village Sarpanch are cordial, nothing could be elicited from his

cross-examination to infer him to have lodged a false F.I.R.

7. X (P.W.4) was examined in question - answer

form. It is in her evidence that, she was Class IV student of

10 years age. The appellant was her teacher. It is in her

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evidence that the appellant would kiss her. He would make

her sit on his lap. He made her hold his private part. He

inserted his hand in her undergarment. The appellant had

asked her not to disclose these things to anyone, lest he

would beat her up. According to her, the appellant did behave

same way with her other classmates. She disclosed these

facts to her parents only when her cousin sister told her how

the appellant behaved with her. Both of them, therefore,

disclosed these incidents to her mother (P.W.1). X stated to

have not disclosed the said incident to her parents

therebefore due to threat extended by the appellant. Such

incidents took place with her once or twice a week. It is

further in her evidence that, her statement was recorded by

lady police officer and then by a lady Judge.

In her cross-examination, X has stated that, the

village Sarpanch used to visit their school. He would enquire

with the students about the performance of teachers including

the appellant. The Sarpanch would ask the students to

approach him in case they have any problem with any of the

teachers. The appellant made infrastructural developments in

the school. The village Sarpanch runs his private English

medium school. Her school is of Marathi medium. Some of

the Marathi medium school boys joined English medium

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school. She, however, denied the Sarpanch to have

approached her parents before the case. X then described the

school premises with class rooms and the computer room

therein. She admitted to have not made any complaint to

lady staff of the school engaged to cook food for mid-day

meal. It is further in her evidence that, all the students were

upset with the appellant as he would beat them up. It is

further in her evidence that, other girl students and their

parents had come to the Court along with her and her parents

to give evidence in the case. It is further in her evidence

that, before she gave her evidence in the Court, she had read

over her police statement, when her father was around.

8. It is in the evidence of X-2 (P.W.5) that, she was

in 4th Standard. The appellant and one Chaudhari Sir were

her teachers. The appellant would fondle her breast. Kissed

her. He would ask her to pluck hair on his legs. He would rub

her hands and fingers as well. Such incident happened only

once. It is further in her evidence that the appellant behaved

the same way with her classmates. She disclosed these

things only after X and her parents came to her residence to

enquire about the happenings. According to her, she did not

disclose earlier due to threat extended by the appellant.

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In her cross-examination, she deposed that, she

along with her classmates had accompanied the appellant in

his car to participate in inter-school sports competition. She

also attended Bal Anand function at Amalner along with the

appellant. The appellant would take active part in cultural and

other school activities. According to her, she did not tell in

her statement (Exh.51) that the appellant would ask her to

rub his finger, he would fondle her breast etc. as she was

frightened as the police were around. She denied to have

given her evidence as instructed by her father. According to

her, the father had only asked her to state true facts. It is

further in her evidence that other schoolmates and their

parents had also accompanied her to the Court.

9. X-1 (P.W.6) stated in her evidence that, the

appellant used to touch her private part by sneaking his hand

lifting her frock. Such incidents happened 7 - 8 times. She

did not disclose those incidents due to fear of the appellant.

Such incidents took place in class room during recess.

In her cross-examination, she stated that, her

statement was not recorded in writing by police. It was

recorded in the phone. The Police Madam had enquired with

all the girls simultaneously. She stated to have not told the

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Police Madam that such incidents happened 7 or 8 times,

because the Police Madam did not ask her. It is further in her

evidence that, no discussion took place as regards what is to

be deposed in the Court. She denied that, her father read her

over her police statement before she gave evidence in the

Court.

10. X-3 (P.W.7) testified that, she was in 3 rd Standard.

The appellant would rub her hands and legs. Press her

breast. He would touch her private part and used to insert his

fingers into her mouth. She shared these happenings with

her cousin sister, X (P.W.4). Such incident occurred 2 - 3

times in computer room during recess, lunch break or short

interval. It is further in her evidence that such incidents

happened for many days. She lastly got angry and, therefore,

told it to her cousin sister. She went home weeping.

In her cross-examination, it has come on record

that statements of all the girls were recorded simultaneously

and videographed as well. The school premises is at the road

side. Happenings in the school are visible from outside

through windows. She had been to the school trips. The

appellant had arranged those trips. It is further in her

evidence that, she did not state to the police that the

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appellant touched her private part and rubbed her hands.

According to her, she did not disclose the same to the police

since she answered the questions which were put to her.

According to her, since she was confused, she did not state in

her statement to the Judge Madam that the incident

happened in computer room. She admitted to have had read

her police statement before giving her evidence before the

Court.

11. X-4 (P.W.8) deposed that, the appellant would

insert his hand and press her breast. Asked her to rub his

hands and legs. Such incidents happened when she was in

2nd/ 3rd Standard. She did not inform it to anybody as the

appellant had asked her not disclose, lest he would beat her.

According to her, such incidents took place during recess in

computer room. Other students used to be around during

such incidents.

In her cross-examination, she denied that the

appellant used to call 2 - 3 girls at a time. She, however,

could not offer any explanation as to why did she say so in

her statement recorded by lady Judge. The Police Madam

recorded her statement with the voice recorder. It was not

written or typed. It is further in her evidence that she stated

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that such incidents happened in computer room since she had

such discussion with other girls whose statements were

recorded. She, however, denied to have any discussion with

her friends over what shall be stated in the Court.

12. X-5 (P.W.11) testified that, the appellant would

insert his hand in her frock. He would take her hand into his

pant. He would make her sit on his lap and kiss her. Such

incidents took place during recess and short intervals in

computer room. One or two girls used to be there during

such happenings. Such things happened with her twice.

Other girls had informed her that the 'Sir' has behaved with

them same way.

In her cross-examination, she stated to have not

disclosed in her statement to the Judge that the appellant

would kiss her and made her sit on his lap since she was

frightened. Her father cultivates the land of the village

Sarpanch as a tenant. She denied to have given evidence

against the appellant at the instance of her parents.

13. Shri Sapkal, learned Senior Counsel representing

the appellant would submit that, the appellant used to take

part in village politics. He had canvassed in Grampanchayat

elections for a candidate from rival group of the Sarpanch.

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English medium school was recently started by the Sarpanch.

He wanted that all Marathi medium school boys shall join his

English medium school. Thus, with a view to teach the

appellant a lesson, a false F.I.R. has been lodged. According

to learned Senior Counsel, the relevant witnesses in the case

are children. The investigating officer has not placed on

record their videographed statements. There are material

omissions and contradictions in the evidence of the child

witnesses. The parents and elders had tutored the child

witnesses before they gave their evidence in the Court.

These witnesses read over their police statements before they

entered the witness box. According to him, child witnesses

are prone to tutoring. In the fitness of things, their evidence

is not worthy of placing reliance. The learned Senior Counsel

has relied on the following authorities :-

(1) Navin Dhaniram Baraiye Vs. State of Maharashtra [ 2018 Cri.L.J. 3393]

(2) Nivrutti Ganpati Sadekar Vs. State of Maharashtra [2018(4) Bom.C.R. (Cri.) 737]

(3) Suresh Purushottam Ashtankar Vs. State of Maharashtra & anr. [2015 ALL MR (Cri.) 4243]

The learned Senior Counsel ultimately urged for

allowing the appeal in toto. In the alternative, he urged for

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reducing the quantum of sentence to the period already

undergone since it has been four years the appellant is behind

the bars.

14. The learned A.P.P. took me through the evidence

of the victim girls to submit that they have deposed what

happened with them. According to him, considering the

victim girls being around 10 years of age, there bound to be

some inconsistencies in their evidence. It was but natural for

them not to immediately come out against their teacher.

Learned A.P.P. supports the impugned judgment.

15. The relationship between the appellant and the

victim girls is that of teacher and students/ pupils. The victim

girls are all in the age group of 9 - 10 years. It was

therefore, but natural for them not to immediately disclose

what had happened with them. It is only after X (P.W.4)

gathered courage to share her ordeal with her mother Sunita

(P.W.1). Her mother testified that, on 20/2/2017, X came

home crying. It was 5.30 p.m. On enquiry with X, she told

her that the appellant sneaked his hand in her knicker and

touched private part. P.W.1 Sunita thereafter related the

same to her husband, informant (P.W.12). He then lodged

the F.I.R. It was but natural reaction on the part of P.W.1 and

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P.W.12 to first approach other girl students, friends of X to

find whether the appellant behaved with them the same way.

On registration of the crime, a lady police officer has recorded

statements of the victim girls under Section 161 of the

Criminal procedure Code. The investigating officer (P.W.13)

was categorical to state that, none of such statement has

been videographed or recorded in a cell phone. True, two of

the victim girls have testified that their statements were

recorded simultaneously on cell phone and videographed as

well. The said testimony appears to be a result of their age of

understanding. The lady J.M.F.C. has recorded the

statements of the victim girls under Section 164 of the Cr.P.C.

All such statements have been on record and marked

exhibits. In view of Section 80 of the Evidence Act, it has to

be presumed that, the statements are genuine, that the

statements, as to circumstances under which those have been

taken, purporting to be made by the person signing it, are

true, and that such statement was duly taken.

16. The learned J.M.F.C. has recorded the statements

of the victim girls in question-answer form after having found

the victim girls to have been free from any kind of external

influence. The evidence of the victim girls before the Court

has been reinforced/ corroborated by their statements

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recorded under Section 164 of the Cr.P.C. It is true that, the

evidence of two of the victim girls is in the nature of some

improvements over their statements recorded by the learned

J.M.F.C.. P.W.4- X testified before the Court that the appellant

used to kiss her. He inserted his hand under her frock. Made

her hold his private part. He asked her not to disclose the

same to anyone else. While in her statement before the

learned Magistrate she had stated that the appellant would

kiss her. He fondled her breast. Touched her private part.

The appellant used to embraced her. The evidence of this

witness is very much consistent with her statement before the

learned J.M.F.C. True, she testified that she had come to the

Court along with other victim girls and their parents. It was

her father who told her to give a statement to the lady Judge.

She had gone through her statement before she gave her

evidence in the Court.

17. X-2 P.W.5 has stated in her statement under

Section 164 of the Cr.P.C. that, the appellant would kiss her

and ask to rub his fingers. True, her evidence before the

Court is somewhat in the nature of improvement over her

statement before the learned J.M.F.C. There is, however, no

similar omission in her police statement (under Section 161 of

the Cr.P.C.). She was, however, categorical to deny to have

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given her evidence at the instance of her parents.

18. P.W.6 X-1's evidence is very much consistent with

the statement recorded by the learned J.M.F.C. The record of

all the statements recorded by the learned J.M.F.C. indicates

that, those have been recorded separately after following the

statutory requirements. She was categorical to deny the

discussion took place between the victim girls and their

parents as to what should be deposed before the Court.

19. The statement of X-3 (P.W.6) recorded by learned

J.M.F.C. is consistent with her evidence before the Court.

Same is the case of X-4 and X-5.

20. There is nothing in the evidence to indicate the

appellant was at logger-head with the village Sarpanch. True,

the village Sarpanch runs an English Medium school. The

victim girls are in Zilla Parishad Primary School. There is

nothing to indicate the appellant to have ever participated in

village politics, inviting wrath of the village Sarpanch. It was

not difficult for the village Sarpanch to have the appellant

transferred out of the village had he really entertained any

animus against him.

21. There can be no two views over the proposition

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that the evidence of a child witness may be evaluated more

carefully and with greater circumspection because a child is

susceptible to be swayed by what others tell him and, thus, a

child witness is an easy prey to tutoring. It is also true that,

every accused is presumed to be innocent unless the guilt is

proved. In case of Lallu Manjhi and another Vs. State of

Jharkhand [AIR 2003 SC 854], the Hon'ble Supreme Court

observed in paragraph No.10 as follows :-

"10. The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. (See - Vadivelu Thevan etc. v. State of Madras, AIR 1957 SC 614)."

22. There was nothing wrong of the parents of the

victim girls having been theiraround while their statements

were recorded by the learned Magistrate or the police officer.

Section 26(1) of the POCSO Act reads :-

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"26(1) Additional provisions regarding statement to be recorded:- The Magistrate or the police officer, as the case may be, shall record the statement as spoken by the child in the presence of the parents of the child or any other person in whom the child has trust or confidence."

23. In view of Section 26(4) of the POCSO Act,

recording of statement of child by audio-video electronic

means is not mandatory. It is reiterated that, the learned

J.M.F.C. has recorded the statements of the victim girls after

having ensured that all of them were free from external

influence. The lady police officer has also recorded the

statements in question-answer form. It is true that, two of

the victim girls have testified to have had perused their police

statements before entering the witness box. The Division

Bench of this Court in case of Suresh Ashtankar (supra),

discarded the evidence of witness who had referred to his

previous police statement immediately before entering the

witness box. The Division Bench has approved the

observations of the learned Single Judge in case of Sharad s/o

Namdeorao Shirbhate V. State of Maharashtra [ 2006(2)

Mh.L.J. (Cri.) 1210]. The observations of the learned Single

Judge were :-

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"35. Insofar as the evidence of Pranjali (P.W.3) is concerned, she has corroborated the version of Sharyu on all material aspects. Not only that, she has also in clinching words stated that kerosene was poured on her mother near TV in the hall. Pranjali was present in the hospital. She has seen the police first time in the hospital. She has admitted that, on the day of incident, she did not disclose to the police that she has seen that her father has set her mother on fire. Belated disclosure to police though opportunity was there, coupled with the fact that the claim of this witness about pouring of kerosene in the hall near TV belied by contemporaneous document (Exh.19), creates serious doubt about her testimony."

24. In my view, the evidence of all the victim girls is

very much consistent with each other. Their statements

recorded by the learned J.M.F.C. reinforce their testimony

before the Court. These girls had no reason to speak against

their teacher (appellant). A few and minor omissions or

improvement here and there are bound to occur in view of

tender age of the victims. Although two of the victim girls

had referred to their previous statements before they gave

evidence in the Court, in my view, the same would not

materially detract their probative value. From the entire

evidence in the case, I am satisfied that the learned trial

Judge has rightly convicted the appellant. There is no reason

for this Court to interfere therewith.

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25. In case of Devilal and others Vs. State of Madhya

Pradesh [ (2021) 5 SCC 292 ], the Apex Court obsrved :-

"Criminal trial - Witnesses - tutored/ Pressurised witness - Eyewitnesses - Probability of tutoring - Held, mere assertion on the part of the witness that her earlier statement recorded during investigation was read over to her does not mean that she was tutored to follow the line of prosecution."

26. So far as regards alternate submission as regards

reducing the quantum of sentence, it is stated to be denied at

once. The appellant was the teacher of all the victim girls.

He had a special duty to play their a guardian next to their

parents. Each and every independent act of sexual abuse of

the victim constitutes a separate offence. The sentence of

imprisonment of seven years may, in the facts and

circumstances of the case, be found to be inadequate.

27. In the result, the appeal fails. The same is,

therefore, dismissed.

( R. G. AVACHAT ) JUDGE fmp/-