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2018 DIGILAW 2922 (BOM)

Sk. Samir S/o Sk. Ahmed v. State of Maharashtra

2018-12-11

M.G.GIRATKAR

body2018
JUDGMENT : M.G. GIRATKAR, J. 1. The present revision is against the judgment of conviction, dated 30th January, 2014 passed by learned Judicial Magistrate, First Class, Akola in Regular Criminal Case No. 159 of 2008 by which the applicant (hereinafter referred as “accused”) came to be convicted for the offence punishable under Section 354 of the Indian Penal Code and sentenced him to suffer RI for one year and to pay fine of Rs. 2,000/- in default, to further suffer RI for one month. The appeal preferred by the accused before the learned Sessions Judge, Akola came to be dismissed vide judgment dated 06th March, 2014. Hence the present revision. 2. The case of the prosecution against the accused in short is as under: That, on 21st February, 2008, at about 09:00 p.m. victim was on the road in front of her house at Akola. Her mother was sleeping inside the house. At that time, accused came to her and uttered some obscene words saying that, come with him and allow him to do something wrong. Victim denied the same. Accused pressed her breasts and ran away. The victim went to Police Station, City Kotwali, Akola and lodged report. Crime was registered against the accused. After completing investigation, charge sheet was filed. After framing the charge, prosecution has examined in all four witnesses. Learned trial Court relied on the evidence of victim and convicted the accused as stated above. 3. Heard Shri Thotange, learned Counsel appearing on behalf of the applicant and Shri S.D. Sirpurkar, learned Additional Public Prosecutor appearing on behalf of the respondent/ State. 4. Shri Thotange, learned Counsel for the applicant has pointed out the evidence of PW- Nos. 2 to 4 and submitted that there is no corroboration to the evidence of PW-2. Her mother not supported the version of PW-2. The prosecution has failed to establish the guilt of accused beyond reasonable doubt. Hence, the accused is entitled for acquittal. At last, prayed to allow the revision. 5. Shri Sirpurkar, learned APP for the respondent/State has supported the impugned judgments. He has submitted that there is no reason for the victim to depose against the accused. Hence, revision is liable to be dismissed. 6. PW-1 not supported to the prosecution. Nothing is brought on record in his cross- examination to prove the spot panchnama. The prosecution has not examined any panch. He has submitted that there is no reason for the victim to depose against the accused. Hence, revision is liable to be dismissed. 6. PW-1 not supported to the prosecution. Nothing is brought on record in his cross- examination to prove the spot panchnama. The prosecution has not examined any panch. Therefore, spot panchnama itself is not proved. PW-2 (victim) has stated about the incident saying that in the night of incident, accused came in front of her hut and pressed her breasts. In the examination-in-chief itself, she has stated that she informed the incident to her mother. She has admitted in her evidence that her brothers and sisters were residing in the hut along with her mother. She has further admitted that she was not knowing the accused before incident. Material omission is brought on record in respect of the spot of incident. 7. Evidence of mother of victim shows that the victim not disclosed anything to her about the incident. 8. As per the evidence of victim (PW-2), immediately she disclosed the incident to her mother; whereas her mother PW-3 has specifically stated in her deposition that victim has not disclosed anything to her. Therefore, the incident stated by PW-2 creates doubt. The prosecution has to prove the guilt of accused beyond reasonable doubt. No other witness has corroborated the evidence of PW-2. As per the evidence of PW-2, her brothers and sisters along with her mother were residing in the house. At the time of incident, her mother was present in the house. Evidence of PW-2 further shows that she had disclosed immediately the incident to her mother, but her mother PW-3 has specifically stated that she did not know anything about the incident. Therefore, whatever incident stated by PW-2 against the accused creates doubt. The prosecution has failed to prove the guilt of accused beyond reasonable doubt. 9. As per the settled principle of law, benefit of doubt should go in favour of accused. Hence, the following order. 10. In the result, the revision application is allowed. The judgment of JMFC, Akola dated 30th January, 2014 in Regular Criminal Case No. 159 of 2008 and confirmed by learned Additional Sessions Judge, Akola vide judgment dated 06th March, 2014 in Criminal Appeal No. 18 of 2014, are hereby quashed and set aside. 11. Hence, the following order. 10. In the result, the revision application is allowed. The judgment of JMFC, Akola dated 30th January, 2014 in Regular Criminal Case No. 159 of 2008 and confirmed by learned Additional Sessions Judge, Akola vide judgment dated 06th March, 2014 in Criminal Appeal No. 18 of 2014, are hereby quashed and set aside. 11. Accused is acquitted of the offence punishable under Section 354 of the Indian Penal Code. Fine amount, if paid by the accused, be refunded to him.