Bombay High Court
Kishor Shivaji Bade vs The State Of Maharashtra on 6 May, 2024
2024:BHC-AUG:9918
{1} CRI APPEAL 822 OF 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 822 OF 2018
Kishor s/o Shivaji Bade
Age: 26 years, Occu.: Nil,
R/o. Loni, Tq.Shirur,
Dist.Beed. ....Appellant
(Orig. Accused)
Versus
The State of Maharashtra
Through Police Inspector,
Police Station, Shirur (K),
Tq.Shirur (K), Dist.Beed. ....Respondent
.....
Advocate for Appellant : Mr. Ankush N. Nagargoje
APP for Respondent : Mr.N.D.Batule
.....
CORAM : ABHAY S. WAGHWASE, J.
DATE : 06 MAY, 2024
JUDGMENT :
-
1. Judgment and order passed by the learned Additional Sessions
Judge, Beed dated 05-10-2018 in Special (POCSO) Case No.41 of
2015 is taken exception to by filing instant appeal.
BRIEF FACTS OF THE CASE
2. PW1 victim, a minor, who was going to school on 02-02-2015,
{2} CRI APPEAL 822 OF 2018
was intercepted by present appellant, who had come there on
motorcycle. By obstructing her way, he expressed his feelings and
love with her. Victim raised alarm and gave call to one Bhimrao
Bargaje, who was working in adjoining field. After seeing Bhimrao
coming towards the spot, accused fled away. She reported
occurrence to her father and brother and thereafter, report exh.23
was lodged, on the strength of the same, crime bearing no.10 of 2015
was registered for the offence punishable under Sections 354-D, 341,
506 of the Indian Penal Code (IPC) and under Section 12 of the
Protection of Children from Sexual Offences Act (POCSO Act).
After gathering sufficient evidence, PW7 Sominath Parve Patil
(API) chargesheeted accused and accused was made to face trial
before learned Additional Sessions Judge, Beed, who on appreciation
of oral and documentary evidence, recorded guilt of the appellant but
only under Section 341 of the IPC and he is acquitted from other
charges. While sentencing, learned trial Court has directed the
appellant to pay fine of Rs.500/-.
Correctness, legality and sustainability of the said Judgment
and order is now questioned before this Court by filing instant
appeal.
{3} CRI APPEAL 822 OF 2018
SUBMISSIONS
On behalf of appellant :
3. Learned Counsel for the appellant submitted that firstly there
is apparently false implication, secondly there is no evidence either
oral or documentary in support of the occurrence. He pointed out
that except testimony of victim, there is no supportive or
corroborative piece of evidence. He next pointed out that including
PW5 Baban Bargaje, father of victim, PW4 Bhimrao Shankarrao
Bargaje are not supporting prosecution and therefore, under such
circumstances, his submission is that the learned trial Court ought
not to have accepted the case of prosecution even for offence under
Section 341 of the IPC. According to him, there is improper
appreciation of the evidence. Required ingredients for attracting
offence under Section 341 of the IPC are patently missing. He also
pointed out that there are allegation of intercepting by riding
Motorcycle, however, owner of the Motorcycle is not examined.
Therefore, case of prosecution was palpably weak and was a fit case
for extending benefit of doubt.
Learned Counsel further submitted that in the alternative, if
this Court is not convinced with the submissions, then benefit of
provisions under the Probation of Offenders Act be extended to the
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appellant.
On behalf of State :
4. Per contra, learned APP pointed out that victim is a 'minor'.
That while she was going to school, appellant intercepted her way.
She was restrained from moving ahead. It is pointed out that he also
indulged in expressing his love to the minor. That prosecution had
established victim to be a 'minor'. That she has deposed to that
extent. That her testimony has inspired confidence and therefore,
learned trial Court committed no error whatsoever in recording guilt
under Section 341 of the IPC. Learned APP pointed out that learned
trial Court has acquitted accused from charge of Sections 354-D and
506 of the IPC and held guilty for offence under Section 341 of the
IPC, this itself shows that there is meticulous examination of
available evidence. Therefore, guilt so recorded is perfectly valid and
hence, he seeks dismissal of the appeal for want of merits.
GIST OF EVIDENCE BEFORE TRIAL COURT
5. After hearing submissions of both the sides, visited the
evidence adduced before the trial Court and re-appreciated the same.
{5} CRI APPEAL 822 OF 2018
6. PW1 is victim. She is examined at exh.22. The gist of her
evidence is that on 02-02-2015 at around 09:30 a.m. while she was
proceeding to School, accused came on Motorcycle, he obstructed her
on road from proceeding ahead and expressed his love. She gave call
to Bhimrao Bargaje, who was working in the field aside and seeing
Bhimrao coming towards spot, accused fled away. She reported
occurrence to her father and brother and thereafter, lodged report.
7. PW2 Balasaheb Bhagwan Sable is Pancha to spot panchanama.
He did not support prosecution.
8. PW3 is brother of victim. He also deposed that incident took
place on 02-02-2015. That his sister had been to school to appear for
examination. That she returned home crying and on enquiry,
reported the above act of accused.
9. PW4 Bhimrao Shankarrao Bargaje, independent witness did
not support prosecution.
10. PW5 is father of victim. He in his evidence at exh.45
submitted that his daughter informed about she being harassed by
{6} CRI APPEAL 822 OF 2018
accused by restraining her way. He submitted that except informing
such act, she did not inform other things.
11. PW6 Radhakishan Uttamrao Taquiq is Head Master, who
placed on record school extract showing date of birth of victim to be
03-10-1999.
12. PW7 Sominath Arunrao Parve Patil (API) is the Investigating
Officer.
ANALYSIS
13. Here considering the nature of allegations, evidence of PW1
victim is of relevance and significance. On meticulous examination
and analysis of her evidence, she is found to be deposing that on
02-02-2015, while she was going to school at around 09:30 a.m.,
accused came on Motorcycle and obstructed her way. According to
her, he also expressed his love. She claims to give call to Bhimrao
Bargaje, who was working in the adjoining field.
On going through the cross-examination faced by victim, it
appears that her above testimony has not at all been shaken or
rendered doubtful. Paragraph nos.4 and 5 of the cross-examination
are confined to only geographical location and location of the spot.
{7} CRI APPEAL 822 OF 2018
Questions are put regarding her Standard and she is asked whether
her brother accompanied her while going to school. Questions are
put whether her brother and father have mobiles. She specifically
answered in paragraph no.6 that on that day, she was going to
appear for examination and she was going by walk, whereas other
students had used bicycles. Questions put in paragraph no.7 are post
occurrence.
Therefore, her substantive evidence regarding she going to
school at around 09:30 a.m., being intercepted by accused on road
and expressed love has not at all been questioned or challenged.
There is no reason for girl to falsely implicate appellant. Even for
namesake, there is no suggestion about false implication.
Consequently, as the evidence of victim is inspiring confidence, the
same needs to be accepted and even acted upon. Precisely, this is
what learned trial Judge seems to have done. Required ingredients
for attracting offence under Section 341 of the IPC are palpably
present in the prosecution evidence.
Therefore, learned trial Judge committed no error whatsoever
in holding accused guilty only for the said charge. No case being
made out on merits, appeal deserves to be dismissed. Accordingly, I
proceed to pass following order :
{8} CRI APPEAL 822 OF 2018
ORDER
Criminal Appeal No.822 of 2018 stands dismissed.
( ABHAY S. WAGHWASE )
JUDGE
SPT
