Rajesh @ Raju Vitthalrao Wahare vs State Of Mah. Thr. P.S.O., P.S. ...
2021 Latest Caselaw 727 Bom

   6apeal 270.19                            1



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                      CRIMINAL APPEAL NO. 270 OF 2019

  Rajesh @ Raju Vitthalrao Wahare,
  aged about 30 years, Occ. Labourer,
  R/o Husanapur, Tah. Seloo, District Wardha.
                                                                 ...APPELLANT

                    Versus

  State of Maharashtra,
  through PSO, Police Station Deoli,
  District Wardha.
                                                             ...RESPONDENT

  Shri P. B. Thaware, Advocate for the appellant.
  Shri M.J. Khan, A.P.P. for the respondent.
                     .....

                               CORAM : PUSHPA V. GANEDIWALA, J.

DATED : JANUARY 13, 2021.

ORAL JUDGMENT :

Heard.

2. This appeal is directed against the judgment and

order dated 05/03/2019 passed by the District Judge-1 & Spl.

Judge (POCSO Act), Wardha in Special (POCSO) Case

No.49/2015, whereby the appellant/accused is convicted for

the offence punishable under Sections 452, 354 and 324 of the

Indian Penal Code, 1860 (for short "IPC"), and Section 7

punishable by Section 8 of the Protection of Children from

Sexual Offences Act, 2012 (for short "POCSO Act").

For the offence punishable under Section 452 of the

IPC, the appellant/accused is sentenced to undergo rigorous

imprisonment for three years.

For the offence punishable under Sections 354 and

324 of the IPC, and Section 7 punishable by Section 8 of the

POCSO Act, the appellant/accused is sentenced to undergo

rigorous imprisonment for three years with fine of Rs.250/-

(rupees two hundred fifty) for each of the offence, and in

default of payment of fine, to undergo simple imprisonment for

ten days.

All the sentences were directed to run concurrently.

3. The case of the prosecution, in brief, is as under :

i. The age of the prosecutrix at the relevant time was

16 years. Her mother died prior to sixteen years of the incident.

The informant Bandu Devpare is the father of the prosecutrix.

She along with her father was residing at the house of her

paternal aunt Chhabubai. Her other paternal aunt Deokabai was

residing in the vicinity of her house. Praful is the son of

Chhabubai. The appellant/accused was having grudge against

Chabubai, the father of the prosecutrix and the prosecutrix

herself, as Praful - son of Chabubai, had kidnapped the niece of

the appellant/accused, and for that purpose, he was behind the

bar.

ii. On 29/06/2015, at around 6.00 pm, when the

informant was sitting under the neem tree outside his house,

the accused trespassed the house, hugged the prosecutrix and

pressed her breast. She shouted. On hearing her noise, her

father came inside the house immediately. He tried to rescue

her. During that process, the appellant/accused inflicted several

blows on the head of the informant with wooden rod of 'Axe',

which was lying there, as a result of which, he sustained

bleeding injuries. The neighbors also rushed to the spot. They

took the informant - injured to the Police Station, Deoli, where

he lodged report, and thereafter, he was referred to the hospital.

iii. On the basis of report lodged by the informant, a

crime came to be registered against the appellant/accused. The

police started the investigation and the accused came to be

arrested. The prosecutrix was sent for medical examination. The

weapon, used for committing the alleged offence, and the

clothes of the prosecutrix, were seized. The spot panchanama

was prepared. The statements of the witnesses were recorded.

After investigation, chargesheet came to be filed before the

Court of Magistrate, who in turn, committed the case to the

Sessions Court. The Sessions Court framed charge against the

appellant/accused for the offence punishable under Sections

452, 354D and 324 of the IPC, Section 7 punishable under

Section 8 of the POCSO Act, and Section 3(1)(xi) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989. The charge was read over and explained

to the appellant/accused in his vernacular, to which he pleaded

not guilty, and his plea was recorded.

iv. In order to substantiate the charge against the

appellant/accused, the prosecution examined in all eight

witnesses, and also brought on record necessary documents.

The Sessions Court recorded statement of the appellant/accused

under Section 313 of the Code of Criminal Procedure.

v. After hearing both the sides, the Sessions Court

found that the prosecution could establish its case beyond

reasonable doubt, and passed the judgment of conviction and

sentenced the appellant/accused as above. This judgment is

impugned in this appeal.

4. Shri Thaware, learned counsel for the appellant,

reading out the deposition of the witnesses, vehemently

submitted that the appellant/accused has been falsely

implicated in the instant case in view of previous enmity

between the parties on account of kidnapping of niece of the

appellant/accused by the son of Chabubai.

He further submitted that apart from the prosecutrix

and her father, none of the independent witnesses have

supported the case of the prosecution. Lastly, he pointed out

some irregularities in the investigation and submitted that the

appellant/accused is entitled to be acquitted.

5. As against this, Shri Khan, learned A.P.P., appearing

on behalf of the State, strongly supports the impugned

judgment and order of conviction. He submitted that the

prosecution could establish the case of molestation by the

appellant/accused through the depositions of the prosecutrix

(PW/1) and the informant Bandu (PW/2). Learned A.P.P. also

pointed out relevant paragraphs of the judgment of the Sessions

Court and submitted that the Sessions Court has properly

appreciated the evidence on record, and therefore, he urged to

dismiss the appeal.

6. I have considered the submissions put forth on

either side and perused the record.

7. At the outset, the fact that the niece of the

appellant/accused was kidnapped by the son of Chabubai - the

paternal aunt of the prosecutrix, is not disputed at all. The

prosecutrix and the informant in their testimonies deposed that

the appellant/accused used to abuse the prosecutrix, her

paternal aunt and the informant, under the influence of liquor.

With regard to incident, they testified that when the prosecutrix

was alone in the first room of the house, and her father was

sitting outside the house below the neem tree, the

appellant/accused barged in her house, hugged her and pressed

her breast, and when she shouted, her father came for her

rescue. The informant also supports the case of the prosecutrix

on this point. Apart from this evidence, there is nothing on

record to show as to where was the paternal aunt of the

prosecutrix - Chabubai, at the time of incident. Secondly, the

spot map (Exh. 49) does not show the neem tree in front of the

house of the prosecutrix. Thirdly, the probability of false

implication cannot be rulled out in view of the previous strong

animosity between the parties. Fourthly, the neighbors, who

gathered after the incident, does not support the case of the

prosecution, on molestation. With regard to torn of clothes by

the appellant/accused, the prosecutrix does not say about the

same in her deposition.

8. In the given facts, this Court is of the opinion that

the appellant/accused needs to be given benefit of doubt for the

offence of molestation.

9. With regard to voluntarily causing hurt, the

deposition of the informant, coupled with the medical evidence,

immediate medical treatment, immediate FIR and the

testimonies of the informant and the other independent

witnesses i.e. Manoj (PW/6) and Lahu (PW/7) show that there

was a head injury on the head of the informant. The

independent witnesses deposed that during fight between the

informant and the appellant/accused, the informant sustained

injury by means of rod of 'Axe' at the hands of the appellant.

10. Given the aforesaid facts and circumstances of the

case, this Court is of the opinion that though the appellant is

entitled for benefit of doubt for the offence punishable under

Section 354 of the IPC, however, he is guilty of the offence

punishable under Section 324 of the IPC. Hence, the following

order :

ORDER.

  i.                The Criminal Appeal is partly allowed.

  ii.               The judgment and order dated 05/03/2019 passed

by the District Judge-1 & Spl. Judge (POCSO Act), Wardha in

Special (POCSO) Case No.49/2015, whereby the appellant is

convicted for the offence punishable under Sections 452 and

354 of the IPC, and Section 7 punishable by Section 8 of the

POCSO Act, is quashed and set aside.

iii. The appellant is acquitted of the offence punishable

under Sections 452 and 354 of the IPC, and Section 7

punishable by Section 8 of the POCSO Act.

iv. The conviction of the appellant under Section 324

of the IPC is maintained, however, the sentence is modified to

the extent that the appellant shall undergo six months simple

imprisonment.

v. If the appellant has undergone any imprisonment,

he shall be entitled to set off for the said period.

CRIMINAL APPLICATION NO. 372/2019.

In view of disposal of Criminal Appeal, this

application does not survive. It is disposed of accordingly.

JUDGE

******

Sumit