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2014 DIGILAW 1292 (BOM)

Govind Pandurang Kadale v. State of Maharashtra

2014-06-19

SADHANA S.JADHAV

body2014
JUDGMENT 1. Appellant herein is convicted for offence punishable under Section 376 r/w 511 of Indian Penal Code and is sentenced to suffer rigorous imprisonment for 3 years and 6 months by Ad-hoc Additional Sessions Judge, Nashik vide Judgment and Order dated 4.11.2011 in Sessions Case No. 183 of 2011. Hence this appeal. 2. Such of the facts which are necessary for the decision of this appeal are as follows. 3. On 16.6.2010, Kavita wife of Chotu Shergil lodged report at Panchavati Police Station alleging therein that on that day, i.e. on 16.6.2010, at about 9.00 a.m. she along with her husband had left for work. They returned home in the evening. On their way, they had been to the house of her sister-in-law at Mary Colony, Panchavati. While they were there at about 8.00 p.m. her brother-in-law, Ketan informed them telephonically that their daughter (victim) had been for play. She was picked up by the present appellant, who was working as watchman on the construction site of row houses. He had denuded her of her clothes. The first informant and her husband immediately rushed home. They saw their daughter was crying. Upon inquiry, victim informed her mother that at about 7.00 p.m. when she was playing in the house, accused had called upon her and informed her that her father had called her home and that she should accompany him. She reposed faith in him and accompanied him. He had taken her to a room on the site which was under construction. He had denuded her of her clothes and had attempted to kiss her. She thereafter, raised hue and cry. Her uncle Ketan had heard her hue and cry and had rescued her from the clutches of the accused. On the basis of her report, Crime No. 310 of 2010 was registered at Panchavati Police Station for offence punishable under Section 375 r/w 511 and Section 354 of Indian Penal Code. Accused was arrested on 17.6.2010. Investigation was set in motion. After completion, charge-sheet was filed on 31.3.2011. Accused was enlarged on bail on 30.7.2010 and was on bail during the pendency of the trial. The case was committed to the Court of Sessions and registered as Sessions Case No. 183 of 2011. Prosecution examined 4 witnesses to bring home guilt of the accused. 4. P.W.1 Ketan Shergil happens to be the paternal uncle of the victim. Accused was enlarged on bail on 30.7.2010 and was on bail during the pendency of the trial. The case was committed to the Court of Sessions and registered as Sessions Case No. 183 of 2011. Prosecution examined 4 witnesses to bring home guilt of the accused. 4. P.W.1 Ketan Shergil happens to be the paternal uncle of the victim. He is an eye witness to the incident. He had rescued the victim from the clutches of the accused. He has deposed before the Court that on 16.6.2010, when he was returning home from work, he had heard voices of his niece. She was trying to shout. Initially, he had not paid any attention. After sometime, he met his mother who inquired with him as to whether he had seen the victim girl. He had replied in the negative. They both started looking out for the victim as she was hardly 7 years old. When he was passing through the construction site of the row houses, he again heard the same sound and therefore he peeped into the row house. He saw the accused with the victim. Accused had denuded the victim of her clothes and was sitting on her person. He was attempting to kiss the minor girl. Upon seeing P.W.1, accused started to flee from the rear door of the said row house. The victim was crying. P.W.1 then followed the accused and apprehended him near the brick kiln. He brought him near the house. Thereafter, the victim girl had informed everybody that while she was playing in front of the house in the evening the accused had told her that her father had called her near the shop. She believed him and went with him. Thereafter, she was carried by the accused to the scene of offence. His sister-in-law i.e. mother of the victim has lodged the report. 5. The victim was sent for medical examination to Civil Hospital. In the cross-examination, P.W. has admitted that accused was working as watchman on the construction site of row houses. He has admitted that it is not mentioned in his statement under section 161 that he had heard the voice of his niece while she was shouting and that he had not paid attention. In the cross-examination, P.W. has admitted that accused was working as watchman on the construction site of row houses. He has admitted that it is not mentioned in his statement under section 161 that he had heard the voice of his niece while she was shouting and that he had not paid attention. It is also elicited that it is not mentioned in his previous statement that he had met his mother on the way who had inquired whether he had seen the victim and thereafter, they had initiated search for the victim. Similarly, it is also not stated that the witness had seen the accused sitting on the person of the victim. It is pertinent to note that the witness has not been confronted with his previous statement and hence, the said portions in his substantive evidence have not been exhibited. The omissions are admitted by the witness. It is a matter of record that the victim has been rescued by P.W.1 and therefore, the omissions would loose their significance. 6. P.W.2 Kavita Shergil is the mother of the victim. She has deposed before the Court inconsonance with her first information report and has proved the contents of the F.I.R. which is at Exhibit 15. The witness has not been shattered in her cross-examination in any way and therefore, her testimony deserves to be believed. 7. P.W.3 is the victim herself. She has also deposed before the Court inconsonance with the statement which she had given to her mother. The victim has been cross-examined by the defence. At this stage, learned counsel for the appellant submits that the statement of the victim was not recorded by the Investigating Officer under section 161 of Code of Criminal Procedure, 1973. The said contention is correct. Upon perusal of column no. 11 of the charge-sheet, it is apparent on the face of the record that the victim has not been cited as witness. In all probabilities, learned Judge, Prosecutor and Advocate representing the accused had lost the sight of the fact that the victim was not cited as witness. In spite of it, the defence had proceeded to cross-examine the witness. The victim could have been examined as a Court witness and not as a witness of prosecution. In all probabilities, learned Judge, Prosecutor and Advocate representing the accused had lost the sight of the fact that the victim was not cited as witness. In spite of it, the defence had proceeded to cross-examine the witness. The victim could have been examined as a Court witness and not as a witness of prosecution. However, the said irregularity would not vitiate the trial as it is apparent on the face of the record that the victim had immediately disclosed the incident to her mother. Similarly, there is an eye witness to the incident who cannot be disbelieved. It was fortunate for the victim that she had been rescued by her paternal uncle i.e. P.W.1. 8. P.W.4 is the Investigating Officer. It is pertinent to note that the Investigating Officer has admitted in the cross-examination that he had not recorded the statement of the victim at the time of filing of the complaint as she was in a disturbed state of mind and her parents requested him not to disturb her by recording her statement immediately. The same contention is reflected in Exhibit 16. Exhibit 16 is an application by Honarary Assistant to APP wherein he has prayed to the court that the victim is in state of mind to depose before the Court and her substantive evidence would be necessary to establish the guilt of the accused and therefore he had sought permission to examine the victim. The said application was opposed by the defence. However, the Court in the interest of justice appears to have allowed the application. 9. From perusal of the records, it is clear that prosecution has established the guilt of the accused beyond reasonable doubt. There is no reason to infer that the appellant has been falsely implicated and therefore, conviction of the appellant for offence punishable under Section 376 r/w 511 of Indian Penal Code needs to be upheld. However, taking into consideration the fact that the appellant has undergone 2 years and 9 months, the substantive sentence imposed upon the appellant is modified to the period already undergone. ORDER (i) Appeal is partly allowed. (ii) Conviction of the appellant dated 4.11.2011 recorded by Ad-hoc Additional Sessions Judge-II, Nashik in Sessions Case No. 183 of 2011 for offence punishable under sections 376 r/w 511 of Indian Penal Code is upheld. (iii) Appellant is sentenced to the period already undergone. ORDER (i) Appeal is partly allowed. (ii) Conviction of the appellant dated 4.11.2011 recorded by Ad-hoc Additional Sessions Judge-II, Nashik in Sessions Case No. 183 of 2011 for offence punishable under sections 376 r/w 511 of Indian Penal Code is upheld. (iii) Appellant is sentenced to the period already undergone. (iv) Appellant be released forthwith, if, not required in any other offence. Appeal stands disposed of. Appeal partly allowed.