Harishchandra Rampal Saroj @ ... vs State Of Maharashtra And Anr
2023 Latest Caselaw 9723 Bom

                                                                      IA-1783-2023.doc
2023:BHC-AS:27330

                    Shailaja


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CRIMINAL APPELLATE JURISDICTION
                               INTERIM APPLICATION NO.1783 OF 2023
                                               IN
                                  CRIMINAL APPEAL NO.562 OF 2023


                    Harishchandra Rampal Saroj @ Airport ]         Applicant
                         Vs.
                    The State of Maharashtra and another ]         Respondents

                                                  .....
                    Ms. Veenu Dubey i/b Mr. Anil Dubey, for Applicant.

                    Ms. G.P. Mulekar, A.P.P, for Respondent No.1-State.

                    Ms. Jai V. Kanade, Appointed Advocate for Respondent No.2.
                                                   .....

                                      CORAM         : PRITHVIRAJ K. CHAVAN, J.
                                      RESERVED ON   : 13th September, 2023.
                                      PRONOUNCED ON : 15th September, 2023.


                    ORDER:

1. This is an application under section 389 of the Code of

Criminal Procedure, 1973 (for short "Cr. P.C").

2. The applicant has been convicted by Special Judge under

POCSO Act, Greater Bombay in POCSO Special Case No.296 of

2017 on 7th February, 2023 of an offence punishable under sections

354, 506 of the Indian Penal Code (for short "I.P.C") and under

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section 10 of the Protection of Children from Sexual Offences Act,

2012 (for short "POCSO Act").

3. The applicant has been sentenced to undergo rigorous

imprisonment for five years with fine of Rs.5000/-, in default to pay

fine, to undergo simple imprisonment for one month for an offence

punishable under section 10 the POCSO Act. He has been

sentenced to undergo simple imprisonment of three months for an

offence punishable under section 506 of the I.P.C.

4. Briefly stated, facts are as under.

5. First informant is the mother of the victim. The victim was in

third standard at the relevant time. Applicant and the family of the

victim were neighbours. Victim used to address the applicant as

Airport kaka. On 24th April, 2017 around 8.00 p.m when the first

informant-mother of the victim returned home, the victim informed

her that around 5.00 p.m, the applicant had asked her to come out

of her house; but she did not go out. Around 6.00 p.m, when the

victim was going towards bathroom, she was dragged in the house

by the applicant and pressed her breast. He threatened her not to

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disclose the said act to anyone, else, he would kill her. The victim

escaped and tried to inform her father who was sleeping at the

relevant time, however, there was no response from him. When the

applicant was asked about his such act, it is alleged that he tendered

apology.

6. A report bearing No.218 of 2017 came to be lodged with

Pantnagar Police Station. A crime was registered. Applicant was

arrested. Investigating Officer had recorded statement of the

witnesses. Victim was referred for medical examination. After

investigation, a charge-sheet was filed in the Special Court, at

Bombay.

7. Learned Special Judge framed charge against the applicant

under sections 354, 506 of the I.P.C and under section 10 of the

POCSO Act. The applicant pleaded not guilty and claimed a trial.

After having recorded evidence of prosecution witnesses and

hearing the prosecution and the defence, learned Special Judge

convicted and sentenced the applicant as above.

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8. I heard Ms. Dubey, learned Counsel for the applicant, Ms.

Mulekar, learned A.P.P, for respondent No.1-State and Ms. Kanade,

appointed Advocate for respondent No.2.

9. Counsel for the applicant has submitted that there are only

allegations of pressing breast. She submits that Investigating Officer

had not recorded statement of father and brother of the victim.

Medical officer has not been examined.

10. Learned A.P.P has supported the judgment of the Special

Court.

11. Learned Appointed Advocate for respondent No.2 raised

following vital points viz; an offence under section 10 of the

POCSO Act has been made out by the prosecution; the applicant

did not substantiate his defence; there is no error or flaw in the

impugned judgment except minor omissions. She also drew my

attention to the N.C. report.

12. It is settled legal position that while entertaining an

application under section 389 of the Cr.P.C merits and demerits of

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the case are not required to be gone into. Most important aspect of

this case is the testimony of the victim as well as her mother.

Testimony of P.W.2 - victim reveals that at the relevant time when

she was going towards bathroom, the applicant pulled her inside his

room and pressed her breast. He scratched her hand by his nails.

He threatened the victim not to disclose his act to anyone or he will

kill her. The victim pushed him and ran to her home. She tried to

awake her father but he did not as he was under the influence of

some intoxicant. The victim informed her mother about the

incident after her return to home around 8.00 p.m. At that time,

applicant was not at home. When he returned home, mother of the

victim asked him about the incident and slapped him. The

applicant thereafter ran away from house.

13. Interestingly, in the cross-examination also, defence has

substantiated the incident by asking a question to the victim that

when the applicant pulled her in the house, she did not shout and

did not tell any of the neighbours. The defence has impliedly

admitted the factum of dragging the victim by the applicant in the

house. There is no dispute about the age of the victim.

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14. P.W.1-victim's mother testified that date of birth of the victim

is 2nd August, 2009. Birth certificate of the victim though indicates

her date of birth as 2nd September, 2008, the same has not been

challenged by the defence. Minority of the victim has not been

questioned. Testimony of P.W.1 - first informant and the mother of

the victim reveals that when she returned home around 8.00 p.m,

she noticed the victim scared and, therefore, inquired with her. The

victim narrated the incident as to how the applicant had pulled her

inside the house and pressed her breast. Evidence of this witness

further indicates that the victim had informed her that the applicant

had tried to remove her clothes but she pushed him and ran to her

house. P.W.1 testified that when she had been to the applicant and

asked him about the incident, he confessed by saying that it was a

mistake.

15. Defence raised by the applicant is that he owes Rs.5,000/-

from the first informant. Since he was demanding his money, he has

been falsely implicated. That defence has not been substantiated by

him either by entering into the witness box or by examining any

witness. Prima facie, evidence is quite convincing and clinching.

Even medial report of the victim depicts that there were fresh nail

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scratch marks on her left forearm. Medical expert opined that

sexual assault cannot be ruled out. There are minor omissions and

discrepancies which are quite natural and those cannot be looked

into at this stage. The Special Court has correctly appreciated the

facts and evidence on record and convicted and sentenced the

applicant as above.

16. During trial, it appears that the applicant had threatened the

victim and her parents on 27 th February, 2022, on the basis of

which, a non cognizable offence was registered with the same Police

Station by one Kashinath Waghmode - Police Sub Inspector.

Respondent No.2 has sworn an affidavit before this Court. A

photostat copy of the said N.C is annexed with the affidavit which

indicates that the applicant had threatened the first informant and

the victim of dire consequences as they had implicated him in a

false case. It is surprising as to why the Police Sub Inspector

Kashinath Waghmode did not bring this fact, immediately, to the

notice of the Special Court where trial was pending against the

applicant. Prima facie, it appears that the Police Sub Inspector -

Kashinath Waghmode who had recorded information as regards non

cognizable case has not informed about the same to the concerned

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Court. Had there been due intimation to the jurisdictional Court,

bail granted to the applicant on 30 th June, 2017 by the Special

Court would have been cancelled in light of the fact that clause (b)

of the bail order clearly indicates that the applicant shall not

threaten or pressurize the informant and the witnesses.

17. In view of the aforesaid facts, release of the applicant by

suspending execution of sentence would definitely affect life of the

victim and her parents in view of the threats alleged to have been

given by him during trial. This is not at all a case in which the

applicant can be released on bail pending the appeal. Consequently,

application stands rejected.

18. Application stands disposed of.

                                                                   [PRITHVIRAJ K. CHAVAN, J.]




Signed by: Shailaja Halkude
Designation: PA To Honourable Judge                                                              8 of 8
Date: 15/09/2023 18:15:37