Kisanlal Sitaramji Pawar vs State Of Mah. Thr. Pso Ps Shirkhed ...
2022 Latest Caselaw 6471 Bom

                             1             49.REVN.20-2021 JUDGMENT.odt




     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH : NAGPUR


     CRIMINAL REVISION APPLICATION NO. 20 OF 2021


     Kisanlal Sitaramji Pawar
     Aged 74 years, Occ. Labour,
     R/o. Village Khopada,
     Taluka Morshi,
     District Amravati (M.S.)              APPLICANT


       Versus


     State of Maharashtra, through
     Police Station Officer,
     Police Station - Shirkhed,
     District Amravati (M.S.)              NON-APPLICANT


-----------------------------------------------
Mr. R.H. Rawlani, Advocate for the Applicant.
Mrs. Mayuri Deshmukh, A.P.P. for the Non-Applicant/State.
-----------------------------------------------


                 CORAM : AVINASH G. GHAROTE, J.

                 DATED     : 11th JULY, 2022.


ORAL JUDGMENT :-

Rule. Rule made returnable forthwith. Heard finally 2 49.REVN.20-2021 JUDGMENT.odt

with the consent of learned counsel for the rival parties.

2. Heard Mr. Rawlani, learned counsel for the

applicant, who contends, that the impugned judgment solely

relies upon the testimony of PW-4/victim, as there is no medical

evidence whatsoever, considering the nature of the incident

alleged. He further submits, that the sole testimony of

PW-4/victim, could not have been relied upon by the learned

Sessions Court on account of the fact that PW-4/victim was a

tutored witness. He further relies upon the age of PW-4/victim

which was 4 ½ years at that time when the evidence was

recorded, which was on 27.12.2012, the incident being alleged

to be dated 30.10.2011. He further submits, that the material

witness is the wife of the accused, who is claimed to have seen

the incident and told the mother of the victim (PW-2/Page 17)

and has not been examined, and therefore, the impugned

judgment cannot be sustained. He further submits, that the

deposition of PW-4/victim ought to have indicated the questions

being put to ascertain her understanding, which again are

absent, which leads doubt as to the extent of understanding of

PW-4/victim, who was admittedly aged 4 ½ years at the time of 3 49.REVN.20-2021 JUDGMENT.odt

her deposition, was recorded. Reliance is placed upon Mohan

Ambadas Meshram Vs. State of Maharashtra, 2018 (6) Mh.L.J.

(Crl.) 296.

3. Mrs. Deshmukh, learned APP for the non-applicant/

State, opposes the revision and contends, that the evidence of

PW-4/victim is creditworthy and merely because her age was 4

½ years at that time, that by itself cannot be held to mean that

there was no understanding, capability in her. She further

submits, that the absence of questions before recording her

deposition, by itself would not indicate non ascertainment of

lack of understanding on the part of the Court. The absence of

examination of the wife of the accused is tried to be justified on

the ground, that she had refused to give any statement

considering her relationship with the accused.

4. The applicant has been convicted for the offence

punishable under Section 354 of the Indian Penal Code and

sentenced to suffer one year rigorous imprisonment and to pay

a fine of Rs.1,000/-, in default to suffer rigorous imprisonment

for one month by the impugned judgment, which also acquits 4 49.REVN.20-2021 JUDGMENT.odt

the applicant for the offence punishable under Sections 323,

504 and 506 of the Indian Penal Code.

5. The incident is alleged to be dated 30.10.2011 when

PW-4/victim, who was playing outside her house was called by

the accused, on the pretext of giving her an orange and when

she went inside, he had removed the knicker of PW-4/victim

and had asked her to sleep, at which time, the wife of the

accused had come there and took PW-4/victim to her mother.

The wife of the accused is said to have narrated the incident to

PW-2, the mother of the victim, as a result of which, she had

gone to the house of the accused and confronted him,

whereupon the accused is claimed to have threatened her and

also assaulted her. Insofar as, the threat and assault is

concerned, the learned Sessions Court has already acquitted the

accused/applicant of the said offence, and therefore, what

remains to be seen is whether an offence under Section 354 of

the Indian Penal Code, is made out. In the instant case, the only

evidence is that of PW-4 the victim, which is material. PW-2 the

mother of the victim, comes into the picture after she has

claimed to have been informed by the wife of the accused 5 49.REVN.20-2021 JUDGMENT.odt

regarding the incident. So is the position in respect of PW-3

Shivkannya Kharate, who is the member of the Child Welfare

Committee. PW-1 Prabhakar Bhokare is the panch witness in

respect of the spot, who has turned hostile. PW-5 Sudhakar

Khangar is the Investigating Officer. It is thus, the evidence of

PW-4/victim, which assumes significance.

6. The evidence of PW-4/victim has been recorded at

Exh-27. It is material to note, that at the time of recording her

evidence, PW-4/victim was merely 4 ½ years of age, considering

which, it was expected that the learned Sessions Court, to have

not only put some questions to her so as to ascertain her

understanding, which have been claimed to have been so put,

however, it was also necessary for him to have recorded the

nature of questions put and the answers given to them by PW-4/

victim, so that a record of such a process could have been

maintained to enable this Court, to understand the nature of the

understanding of PW-4/victim. However, as the questions and

answers have not been recorded, the same deprives this Court,

from forming an independent opinion as to the nature of level

of understanding of PW-4/victim at the time when her evidence 6 49.REVN.20-2021 JUDGMENT.odt

was recorded so as to ascertain the same at the time of the

incident.

7. The recording of evidence of PW-4/victim, is not

bereft of anomalies, inasmuch as the English version in the

record and proceedings indicates, that PW-4/victim in her

examination-in-chief states that the accused had slept on the

person of PW-4, whereas in Marathi version, the word person is

unclear. The word written in Marathi version is capable of being

read as 'on her stomach' as well as 'near her'. The relevant

portion reads as under:

which would indicate lack of clarity in the evidence itself.

8. The evidence of PW-4/victim itself in the

cross-examination indicates an admission that whatever she had 7 49.REVN.20-2021 JUDGMENT.odt

deposed in her examination-in-chief, was told to her by her

mother/PW-2 and grand mother, which would clearly indicate

the tutoring of the witness. The evidence in trial is expected to

be clear, precise, voluntary and untutored and only such

evidence could be considered safe to base a conviction upon.

Reliance is rightly placed upon Mohan Ambadas Meshram

(Supra) wherein Lallu Manjhi and another V. State of

Jharkhand, (2003) 2 SCC 401, was relied upon, and would

indicate that the evidence such as that of PW-4/victim in the

present matter would fall in the category of something which

was neither wholly reliable nor wholly unreliable and in

absence of anything to corroborate her testimony as in the

present case, due to absence of recording the statement of the

wife of the accused, who was the only eyewitness, the

conviction could not have been based upon the sole

uncorroborated testimony of PW-4/victim and more so when

there was no medical evidence whatsoever. The learned trial

Court has merely based its conviction upon the testimony of

PW-4/victim presuming that the evidence was true and has

sought to explain the tutoring on the ground that considering

the age of PW-4/victim, it was natural for PW-2/mother and the 8 49.REVN.20-2021 JUDGMENT.odt

grand mother, to have explained her how to depose, which was

not permissible. A sole question recorded at the end of the

cross-examination as the Court Question, as to when the

incident had happened and the Answer to that, it has happened

in the preceding year, by itself cannot form the basis for the

learned Sessions Court to hold that PW-4/victim, was capable of

understanding the questions which were put to her and

therefore capable of deposing.

9. The learned Sessions Court has also relied upon the

testimony of PW-4/victim and tried to explain the tutoring

holding that it was not the case of the accused/applicant that

PW-2/mother as well as the grand mother of PW-4/victim, had

told PW-4/victim to depose falsely. In my considered opinion,

such a conjecture was not permissible, considering the nature of

evidence which has come on record.(para 16 of the judgment).

10. Though the learned Sessions Court has recorded

that the questions were put to PW-4/victim before recording her

evidence for ascertaining whether she was in a position to

depose, however as observed earlier, the questions and answers 9 49.REVN.20-2021 JUDGMENT.odt

were not recorded at all, because of which, this Court is

deprived of arriving at an independent opinion as to the nature

and level of understanding of PW-4/victim considering her age.

11. It is therefore apparent, that the sole testimony of

PW-4/victim, considering its nature, was not sufficient in law

for the learned Courts below, to have convicted the applicant,

without any further corroboration and specifically so when in

the instant case considering the nature of the incident there was

total absence of medical evidence.

12. I am therefore unable to agree with the conclusions

arrived by the Courts below, in view of the discussions made

above. The impugned judgments are therefore quashed and set

aside and the applicant is acquitted of the offence punishable

under Section 354 of the Indian Penal Code. His bail bond

stands cancelled. The applicant be released, in case he is not

required in any other offence.

13. The Revision application is allowed in the above

terms.

10 49.REVN.20-2021 JUDGMENT.odt

14. Rule accordingly. No costs.

15. Pending application/s, if any, shall stand disposed of

accordingly.

( AVINASH G. GHAROTE, J.)

S.D.Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:13.07.2022 14:42