The State Of Maharashtra vs Murlidhar Ramchandra Shinde
2023 Latest Caselaw 2901 Bom

                                                                       911-als-72-2018.odt




           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD
      APPLN. FOR LEAVE TO APPEAL BY STATE NO.72 OF 2018


The State of Maharashtra                                        .. Applicant
       Versus
Murlidhar Ramchandra Shinde                                     .. Respondent
                                   ...
Mr. R. V. Dasalkar, APP for the applicant - State.
                                   ...
                         CORAM :        SMT. VIBHA KANKANWADI AND
                                        Y. G. KHOBRAGADE, JJ.

                         DATE       :   March 24, 2023.
ORDER :-

.      Present application has been filed by the State under Section

376(1)(b) of the Code of Criminal Procedure to seek leave to appeal to

challenge the judgment and order dated 26.12.2017 passed by the

learned Additional Sessions Judge, Newasa, Dist. Parbhani in Sessions

Case No.65 of 2016, thereby acquitting the respondent/original

accused for the offences punishable under Sections 376(f)(i) of Indian

Penal Code and under Section 3 and 4 of the Protection of Children

from Sexual Offences Act, 2012 (hereinafter referred to as the

"POCSO Act").

2. With the help of learned APP, we have considered the evidence

which was before the learned Trial Judge and we are considering the

911-als-72-2018.odt

present application from the point of view as to whether leave can be

granted to the prosecution to file the appeal.

3. The prosecution story in short is that the informant is the

neighbour of the accused. Informant is having daughter aged 7. She

has friend who resides in the neighbourhood. They both were taking

education in 2nd standard when the FIR was lodged on 29.08.2016. It

is contended that on 27.08.2016 around 6.00 p.m. when the

informant returned from work, her daughter told her that when she

along with her friend were playing in front of the house around 4.00

p.m., the accused asked them to come to his house for playing swing.

They both went in his house and thereafter he had asked them to

remove their nickers as well as ask them to lie on the ground. The

accused who was then 62 years old had removed his Dhoti and then

it was told that he was moving his hand from the body of the girls.

They shouted and ran from the house of the accused. The informant

informed the said fact to her husband as well as the friend's mother.

They all went to the house of the accused, however, he was not in the

house. For a considerable time he did not return and therefore, the

informant went to the police station and lodged the report.

4. It appears that the prosecution has examined in all nine

witnesses to bring home the guilt of the accused. Both the victims

have been examined, so also the brothers of both the victims have

911-als-72-2018.odt

been examined as P.W.7 and P.W.8. They were the eye witnesses to

the fact that the girls were taken by the accused to his house.

5. After considering the evidence on record, it appears that the

learned Trial judge has not followed the proper procedure and

acquitted the accused taking into consideration the fact that in the

statement under Section 164 of the Code of Criminal Procedure, the

girls have given different version. However, it is to be noted that the

said statements of the witnesses under Section 164 of the Code of

Criminal Procedure came to be exhibited during the course of

examination-in-chief and there was no reference to the same in the

cross-examination. Under such circumstance, whether the learned

Trial Judge was justified in making use of those statements of the

accused, is a question. Another sorry state of affairs which has to be

noted is that at many places, the learned Trial Judge has disclosed the

identity of the victims and even their family members. He has

referred Section 33 of the POCSO Act at many occasions, but it

appears that he has ignored Section 33(7) of the POCSO Act. Further,

we would like to say that the identity is not only the name of the

particular victim but it can be so gathered from the relatives also

and, therefore, it ought to have been observed by the learned Trial

Judge that the identity of the victims is not disclosed in any manner.

In the impugned judgment, it is stated that the charge was framed for

911-als-72-2018.odt

the offence punishable under Section 376(f)(i) of Indian Penal Code

and it appears that the learned Trial Judge had not even considered

whether such Section exists. We have considered the Indian Penal

Code prevailing in 2016 because there is amendment in 2018 and in

the present case, the date of offence is 27.08.2016. At the cost of

repetition, we say that there was no Section 376(f)(i) of Indian Penal

Code in 2016 also. If it was to be taken as 376(2)(f), then it was in

respect of a person, being a relative, guardian or teacher of, or a

person in a position of trust or authority towards the woman, who

commits rape on such woman, would be arrayed as accused. As the

accused was neighbour, he cannot be said to be the person in a

position of trust or authority, nor he was the relative or a guardian or

teacher of the victims. No doubt defect in framing of charge per se

will not vitiate the trial. Section 215 of the Code of Criminal

Procedure prescribes that no error in stating either the offence or the

particulars required to be stated in the charge, and no omission to

state the offence or those particulars, shall be regarded at any stage

of the case as material, unless the accused was in fact misled by such

error or omission, and it has occasioned a failure of justice.

Apparently this Section may be available to the accused but still it

reflects how the judge would have approached the matter.

911-als-72-2018.odt

6. The injury certificates of the girls would show that there was

no external sign of injury and there was no injury to the external

genitals. The hymen was intact. The other Section under which the

accused was prosecuted was Sections 3 and 4 of the POCSO Act.

Whether the prosecution had proved the lesser offence or not is also

required to be considered taking into consideration the evidence on

record and, therefore, we feel that case is made out to grant leave to

the prosecution to file the appeal. Accordingly, leave is granted to the

State to file appeal. The Application for Leave to Appeal by State

No.72 of 2018 stands allowed.

7. Registry to register the appeal.

8. The said appeal is admitted.

9. Action under Section 390 of the Code of Criminal Procedure be

taken against the respondent to the satisfaction of the Trial Court.

10. Issue notice to the respondent, to be made returnable on

05.06.2023.

11. Call record and proceedings with paperbook.

 [ Y. G. KHOBRAGADE ]                  [ SMT. VIBHA KANKANWADI ]
        JUDGE                                    JUDGE

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