Bombay High Court
Samir S/O Suresh Waghmare vs State Of Mah. Thr. Pso Ramnagar Wardha ... on 21 August, 2025
Judgment
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO.209 OF 2023
Samir Suresh Waghmare,
age: 35 years, occupation: labour,
r/o Tukaram Ward, Ramnagar, Wardha,
tahsil and district Wardha. ..... Applicant.
:: V E R S U S ::
State of Maharashtra,
thr.PSO Ramnagar, Wardha,
tahsil and district Wardha. ..... Non-applicant.
Shri Chintan Tamhane, Counsel for the Applicant.
Shri N.R.Rode, Additional Public Prosecutor for the State.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 23/07/2025
PRONOUNCED ON : 21/08/2025
JUDGMENT
1. By this revision, the applicant (the accused) has
challenged order dated 7.7.2023 passed by learned
Additional Sessions Judge, Wardha in Criminal Appeal
No.52/2018 dismissing the appeal of the accused and
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454 revn209.23
thereby confirming the judgment and order of sentence
dated 4.9.2018 passed by learned JMFC, Wardha in RCC
155/2016.
2. Brief facts of the prosecution case emerge from the
police papers and recorded evidence are as under:
On 29.1.2016, at about 8:00 pm, the victim was
alone in the house. At the relevant time, the accused
allegedly committed trespass, entered inside the house, and
pressed her breast and thereby outraged her modesty. On
the basis of the report lodged by father of the victim, the
crime was registered against the accused.
3. During investigation, the investigating officer has
recorded relevant statements of witnesses, drawn spot
panchanama, and after completion of the investigation,
submitted chargesheet against the accused. The charge was
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framed against the accused vide Exh.3 to which he pleaded
not guilty and claimed to be tried.
4. In support of the prosecution case, the prosecution
has examined in all 6 witnesses, as follows:
PW Names of Witnesses Exh.
Nos. Nos.
5 Shankar Bhalave, the investigating officer 19
panchanama
5. Besides the oral evidence, the prosecution placed
reliance on report Exh.6, FIR Exh.7, spot panchanama
Exh.20, and arrest panchanama Exh.21. On the basis of the
oral as well as the documentary evidence, the prosecution
has proved its case beyond reasonable doubt.
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454 revn209.23
6. After appreciation of the evidence, learned JMFC
convicted the accused for offence under Section 452 of the
IPC and sentenced to undergo rigorous imprisonment of 2
years and to pay fine Rs.5000/- in default, rigorous
imprisonment for one month. He is further convicted for
offence under Section 354 of the IPC and sentenced to
undergo rigorous imprisonment for 2 years and to pay fine
Rs.5000/-, in default, to undergo rigorous imprisonment for
1 month.
7. The accused preferred an appeal before learned
Sessions Judge and learned Sessions Judge confirmed the
said sentence and dismissed the appeal.
8. Being aggrieved and dissatisfied with the same, the
present revision preferred by the accused.
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454 revn209.23
9. Heard learned counsel Shri Chintan Tamhane for the
accused and learned Additional Public Prosecutor Shri
N.R.Rode for the State.
10. Learned counsel for the accused submitted that the
cross examination of the victim itself shows that there was
money transaction between the father of the accused and
the mother of the victim and the said amount was not paid
and on that count, there was dispute between the
complainant and the father of the accused. On the day of
the incident, the accused had been to the house of the
victim to demand the money and, therefore, he is falsely
implicated in the crime. He invited my attention to the
cross examination of the victim and submitted that in
specific words she has admitted that she has deposed before
the court as narrated by her father. Admittedly, the victim
was child and it is easy to tutor the child. As the victim was
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454 revn209.23
tutored by the complainant, this false report is lodged. He
submitted that the evidence on record shows that the house
of the victim is situated in a dense locality. There is
inconsistent statement as to the time of the incident. Even,
accepting the version of the complainant, that the alleged
incident occurred at 8:00 pm, then also it is difficult to
accept that none of neighbours came by hearing the shouts
and only brother of the victim came. The story narrated by
witnesses itself is improbable and unacceptable. The
evidence of the father of the victim is inconsistent not only
as to the timing of the incident but also he has given
complete contradictory version. Thus, the evidence on
record is not inspiring the confidence and the Trial Court as
well as the Appellate Court wrongly relied upon the said
evidence and, therefore, interference is called for by
invoking the jurisdiction under the revisional powers.
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454 revn209.23
11. Per contra, learned Additional Public Prosecutor for
the State submitted that the scope of the revisional powers
is very limited. In exercise of revisional powers, the High
Court cannot conduct a detailed minutest reexamination of
the entire evidence and put concurrent findings of the Trial
Court and First Appellate Court. The evidence on record
sufficiently shows involvement of the accused in the crime.
The revision being devoid of merits is liable to be dismissed.
12. The conviction and the sentence by learned JMFC
and confirmed by learned Sessions Judge is under challenge
in the present revision. There is no dispute as far as the
powers under 397 of the CrPC are concerned. The minutest
reexamination of the whole evidence is not expected. There
has to be self restraint while exercising the powers under
revision. The Revisional Court is empowered to exercise all
the powers conferred on the Appellate Court by virtue of
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454 revn209.23
the provisions contained in Section 401 of the Cr.P.C.
Section 401 of the CrPC is a provision enabling the High
Court to exercise all powers of Appellate Court, if necessary,
in aid of power of superintendence or supervision as a part
of power of revision conferred on the High Court or the
Sessions Court. Court. Section 397 of the CrPC confers
power on the High Court or Sessions Court, as the case may
be, for the purpose of satisfying itself or himself as to the
correctness, legality or propriety of any finding, sentence or
order, recorded or passed and as to the regularity of any
proceeding of such inferior court.
13. It is for the above purpose, if necessary, the High
Court or Sessions Court can exercise all appellate powers.
Section 401 of the CrPC conferring powers of Appellate
Court on the Revisional Court is with the above limited
purpose. The provisions contained in Section 395 to Section
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of the CrPC, read together, do not indicate that the
revisional power of the High Court can be exercised as a
second appellate power.
14. The Hon'ble Apex Court, in the case of Duli Chand
vs. Delhi Administration, reported in (1975)4 SCC 649,
observed that the High Court in revision was exercising
supervisory jurisdiction of a restricted nature and, therefore,
it would have been justified in refusing to re-appreciate the
evidence for the purposes of determining whether the
concurrent finding of fact reached by the learned Magistrate
and the learned Additional sessions Judge was correct. But
even so, the High Court reviewed the evidence presumably
for the purpose of satisfying itself that there was evidence in
support of the finding of fact reached by the two
subordinate courts and that the finding of fact was not
unreasonable or perverse.
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It is necessary to note in the said decision that the
High Court re-appreciated the whole evidence and findings
of the two courts below.
15. In the light of the above observations, if the findings
of the Trial Court as well as the Appellate Court are
considered, it is relied upon on the evidence of evidence of
PW1 the father of the victim, PW3 brother of the victim,
and PW4 the victim.
As per the evidence of the father of the victim, on the
day of the incident, at about 5:00 to 6:00 am, he had been
to "Tukaram Math" and returned after 10-15 minutes. His
daughter and son were at home. When he returned the
home, the victim was found weeping and she disclosed that
the accused has pressed her breast and outraged her
modesty. Admittedly, PW2 the mother of the victim was not
at home at the relevant time.
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Thus, his evidence is on the basis of disclosure made
to him.
As per evidence of PW3 the brother of the victim, his
father had been to the temple and the accused came at his
home and gave money for purchasing chocolate. When he
was proceeding to purchase the chocolate, he heard the
shouts of his sister and, therefore, he returned home and his
sister disclosed to him that the accused has outraged her
modesty.
The evidence of the victim is also on the similar line.
16. During cross examination, it is specifically admitted
by the victim as well as the father and the brother of the
victim that PW1 the father of victim has obtained amount
Rs.2000/- from the father of the accused and the said
amount was not returned.
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17. PW3 the brother of the victim has also admitted that
the accused was on visiting terms at his house. In specific
words, the victim has admitted that at the time of the
incident, the accused came to demand money and on that
count there was quarrel between them. She further stated
that she is not aware what is mentioned in the report by her
father. She also specifically admitted that her father has
disclosed to her what is to be deposed before the court.
18. Learned counsel for the applicant submitted that
these admissions sufficiently show that the victim was
tutored and as there was money transaction between the
father of the victim and the father of the accused, the
accused came to the house to demand money and,
therefore, this false report is lodged.
19. Appreciation of the evidence reveals that recital of
the FIR and the evidence of the PW1 the father of the victim
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is not consistent as far as time of the incident is concerned.
As per the recital of the FIR, the alleged incident has taken
place at 8:00 pm. Whereas, as per the evidence, the
incident has taken place at 5:00 to 6:00 pm. The spot
panchanama shows that the house of the victim is situated
in dense locality. As per the evidence of the brother of the
victim, when he was proceeding to bring chocolate, he
heard the shouts and asked the victim what happened and
she disclosed the incident. There are houses adjacent to the
house of the victim. No independent witness came forward
to show presence of the accused at the time of the incident.
20. Thus, as far as foundational fact is concerned, i.e.
presence of the accused at the spot, the same itself is not
established by the prosecution. There is reason for the
accused to be present there as the evidence of the victim
itself shows that the accused came to her house to demand
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the money which was obtained from his father as a hand
loan. This fact is also admitted by the father of the victim.
Admittedly, PW1 the father of the victim has not repaid the
money, till the date of the incident and, therefore, the
accused was at the house. Further admission of the victim
is that she was asked to depose by her father as narrated by
him.
21. It is well settled that the child witness is competent
witness under Section 118 of the Evidence Act. PW3 the
brother of the victim and PW4 the victim are child
witnesses. The Trial Court was under obligation to verify
whether the child witnesses are competent to depose before
the court and, therefore, preliminary enquiry is to be
conducted. It is to be ascertained whether the child
witnesses are aware about the facts and for what purpose
they are before the court. Thereafter, the Trial Court must
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also record its opinion that the child witnesses understand
the duty of speaking of truth and state why he is of the
opinion that the child understands the duty of speaking
truth.
22. It is a well-settled principle that corroboration of the
testimony of a child witness is not a rule but a measure of
caution and prudence. A child witness of tender age is easily
susceptible to tutoring and, therefore, careful scrutiny of the
evidence of the child witness is must. "A reasonable
likelihood of tutoring" wherein the foundational facts
suggesting a possibility of tutoring is established, then such
evidence is to be appreciated in the light of the facts of the
case and reason behind the said tutoring.
23. Having appreciated the entire facts and material on
record, it reveals that the Trial Court as well as the
Appellate Court has not considered these facts and totally
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ignored the evidence of the victim who during the cross
examination specifically admitted that the accused had been
to the house for demanding hand loan amount. There was
quarrel between her father and the accused. PW1 the father
of the victim has also admitted that he has obtained the
amount as a hand loan from the father of the accused and
he did not not return back the amount. Though the
evidence of the victim and her brother shows that the victim
shouted, none of neighbouring witnesses came forward
substantiating the contention as to the incident.
Additionally, the evidence of PW1 the father of the victim is
inconsistent as to the timing of the incident. These all
aspects create doubt about the prosecution case.
Apparently, there is an error committed by both the courts
below which needs to be corrected and, therefore, the
revision deserves to be allowed, as per order below:
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454 revn209.23
ORDER
(1) The Criminal Revision is allowed.
(2) The order dated 7.7.2023 passed by learned Additional
Sessions Judge, Wardha in Criminal Appeal No.52/2018
and the judgment and order of sentence dated 4.9.2018
passed by learned JMFC, Wardha in RCC 155/2016 are
hereby quashed and set aside.
(3) The accused is acquitted of offences for which he is
convicted and sentenced.
Revision stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 22/08/2025 11:26:02
