High Court
Legal Reasoning
CriAppeal-150-2018+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 150 OF 2018The State of Maharashtra,Through P.S.O. Topkhana Police Station,Ahmednagar.… Applicant[Ori. Complainant]Versus1.Kiran Suresh Shinde,Age 24 years,R/o Police Head Quarter,Sarjepura, Ahmednagar.2.Vinod @ Bala Raghu Kamble,Age 22 years,R/o Municipal Colony,Nalegaon, Ahmednagar.… Respondent[Ori. Accused Nos. 1 and 3]…..Mr. S. M. Ganachari, APP for the Appellant-State.Mr. Shaikh Mazhar A. Jahagirdar, Advocate for Respondent Nos. 1 and 2...…WITHAPPLICATION FOR LEAVE TO APPEAL BY STATE NO. 33 OF 2018The State of Maharashtra,Through P.S.O.,Topkhana Police Station,Ahmednagar.… ApplicantVersus1.Kiran Suresh Shinde,Age 24 years,2.Akash Rajendra Wandhekar,Age 19 years3.Vinod @ Bala Raghu Kamble,Age 22 years,
Legal Reasoning
CriAppeal-150-2018+-2- Nos. 1 and 2 R/o Police Head Quarter,Sarjepura, Ahmednagar.No. 3 R/o Municipal Colony,Nalegaon, Ahmednagar.… Respondents[Orig. Accused]…..Mr. S. M. Ganachari, APP for the Applicant-State.Mr. Shaikh Mazhar A. Jahagirdar, Advocate for Respondent Nos. 1 to 3...… CORAM :ABHAY S. WAGHWASE, J. Reserved on: 05.02.2024Pronounced on: 09.02.2024JUDGMENT : 1.By way of above mentioned proceedings, State is seeking leaveto file appeal questioning the acquittal of accused no.2 from offenceunder Sections 354-D, 452 r/w 34 of the Indian Penal Code [IPC] aswell as acquittal of all accused from offence under Sections 11, 12and 16 r/w 17 of the Protection of Children from Sexual Offences Act,2012 [POCSO Act] and also seeking enhancement of punishmentawarded to accused nos. 1 and 3.2.Learned APP pointed out that prosecution was launched byTopkhana Police Station against three accused persons i.e. namely,Kiran Shinde, Akash Wandhekar and Vinod Kamble i.e. for offences CriAppeal-150-2018+-3- punishable under Sections 354-D(1)(i)(2) and Section 452 r/w 34 ofIPC and Section 11 r/w 12, Section 16 r/w 17 of the POCSO Act. Hepointed out that victim was a minor i.e. below 18 years of age andwas taking education in 12th standard. Main accused i.e. accused no.1was following, stalking and intercepting her way with intention todevelop relations with her. Accused nos. 2 and 3 also accompaniedhim in such attempts. That, finally on 18.12.2015, accused personsentered her class while she was there and all accused personsapproached her. Accused no.1 expressed his liking, sought time totalk and even sought her mobile number. Therefore, the girl gotfrightened and she left the class. Immediately her friends came. Theywere also informed and finally, college authorities were informed,who called police. Accused were apprehended and on complaint ofvictim, crime was registered bearing no. 381/2015. It wasinvestigated and finally accused persons were chargesheeted and triedbefore Additional Sessions Judge. 3.Learned APP further submitted that as many as seven witnesseswere examined by prosecution. Complainant-victim and her friendwere examined as PW1 and PW3 respectively. Professor of the Collegewho had apprehended accused no.2, has also deposed in the capacityof PW2. Thus, involvement of all three accused was brought home. CriAppeal-150-2018+-4- Age of victim was also established. It is pointed out that offence underSection 354-D IPC as well as under POCSO Act were made out. It ispointed out that, however, learned trial Judge has held only accusednos. 1 and 3 guilty and moreover, in spite of holding they guilty, hasgiven them benefit of Section 4 of the Probation of Offenders Act,1958, whereas accused no.2 has been completely given clean chit andtherefore above proceedings.4.In answer to above, learned counsel for the accused wouldsubmit that there is false implication. That there is no evidence aboutsexual harassment by following complainant-victim or by anyconversation with her. It is pointed out that still guilt has beenrecorded as against accused nos. 1 and 3. However, it is pointed outthat learned trial court, after considering the circumstances in whichthe incident took place, the nature of accusations, age of accused andtheir track record, in stead of sentencing them, has given them benefitof Section 4 of the Probation of Offenders Act, 1958 and hence it issubmitted that there is no error on the part of the learned trial Judgein extending such benefit. He would further submit that there was noevidence as against accused no.2 and so he is rightly acquitted. Henceboth, appeal as well as leave application, are sought to be dismissedand refused respectively. CriAppeal-150-2018+-5- 5.Having heard both sides and on going through the papersbefore the trial court as well as the judgment under challenge, itseems that Topkhana Police have registered crime for above offenceson complaint by victim. The sum and substance of her complaint isthat she was staying in hostel and was taking education in 12thstandard. According to her, since two to three months prior to theincident dated 18.12.2015, accused no.1 used to stand outside herhostel and follow her whenever she went to college. He used to seekpermission to talk with her and even said that he liked her. On18.12.2015 while she was in the class room, she alleged that, accusednos. 1 and 3 came there and drove other students from the class roomand thereafter accused no.1 approached her saying that he wants totalk and that he likes her. He also sought her mobile number. Gettingfrightened, she immediately went out of the class and thereaftercollege authorities were informed, who summoned police. Thereafter,she lodged complaint Exhibit 15.6.On re-appreciating the evidence, it is emerging that, amongst 7witnesses, whose oral testimonies are adduces by prosecution, crucialevidence is of victim PW1, her friend PW3 as well as PW2 Professor ofthe college to whom the incident was immediately reported and CriAppeal-150-2018+-6- subsequently accused seem to be apprehended in the very collegepremises and information was passed to police.7.On going through the substantive evidence of victim PW1, herfriend PW3 and Professor PW2, they are found to be consistent. PW1while attending class, after the episode with her, rushed out, out offright and while she was crying, she has reported occurrence to herfriend. Friend too has supported complainant’s version. In spite ofboth witnesses being cross examined, nothing adverse has beenbrought. In fact, there is no effective cross on actual occurrence. PW2has also deposed about hearing the victim, catching hold of accusedand summoning police. On evaluation of even his testimony, there isnothing to disbelieve his testimony. Consequently, these three crucialwitnesses have remained steadfast while facing cross. There is noreason to doubt their versions. Evidence of victim inspires confidence.She is shown to be below 18 years of age. Therefore, findingnecessary ingredients in the testimonies of above witnesses, there isno hesitation to hold that the charge for which guilt has beenestablished are cogently proved.8.Learned trial Judge has appreciated the evidence of victim inpara 16. Learned trial Judge has also discussed the answers given by CriAppeal-150-2018+-7- victim in cross in para 17. Taking the same into account and even thestatement of victim under Section 164 of the Code of CriminalProcedure, learned trial Judge has held that evidence of victim hasremained intact and nothing adverse has been brought by thedefence. On careful scrutiny of evidence, learned trial Judge has heldthat victim is 17 years of age. There was evidence about she beingfollowed, harassed and therefore finding accused nos. 1 and 3 alone,approaching her on 18.12.2015, they seem to be held guilty ofoffence under Sections 354-D and 452 of IPC. Cross of victim has alsobeen taken into account wherein she has admitted that accused nos. 2and 3 had not uttered anything. Accused no.2 not being attributedany role and there being no material to show his accompaniment withaccused no.1 at any time for commission of this offence, learned trialJudge has acquitted him. However, holding accused no.3 to beaccompanying main accused no.1, he is also held guilty. After findingboth accused nos. 1 and 3 guilty, they are heard on sentence andthereafter learned trial Judge has extended benefit of probation bymaking clear observations and assigning reasons in para 38 as to whythey are entitled for said benefit.9.Therefore, on going through the available papers and judgmentunder challenge, in the considered opinion of this court, guilt has CriAppeal-150-2018+-8- been rightly fastened against accused no.1. Though there is nothingas regards to accused no.3, his mere role of accompanying accusedno.1 while approaching the girl seems to be the ground for ropinghim also. However, accused no. 3 has not distinctly preferred appealagainst the said conviction. Be it so. As there was no material relatingaccused no.2, even this court is of the considered opinion that no rolebeing played by accused no.2, more particularly in view of admissiongiven by victim herself regarding his role, no fault can be found in theappreciation by learned trial court for acquitting him. No fruitfulpurpose would be served in granting leave to the State to file appealagainst his acquittal.10.Now the question that remains is that whether for offenceunder Section 354-D, 452 r/w 34 of IPC, there is insufficientsentence. 11.This court has carefully gone through the reasons assigned bylearned trial Judge in the judgment, more particularly para 38. Ittranspires that accused were 24 years and 22 years of agerespectively. Taking the nature of accusations and absence ofantecedents, benefit available under Section 4 of the Probation ofOffenders Act, 1958 seems to have been extended to them. Even this CriAppeal-150-2018+-9- Court endorses the view taken by the trial Judge. Therefore, no faultcan be found in extending the benefit. It was a case deserving suchbenefit in view of their young age and there being no bad trackrecord. Resultantly, this court also does not find any infirmity in thesaid order. No case being made out for enhancement as well, appealto that extent also requires to be dismissed. Accordingly, I proceed topass the following order :ORDERI.Criminal Appeal No. 150 of 2018 is hereby dismissed.II.Application for Leave to Appeal by State No. 33 of 2018 standsrejected. [ABHAY S. WAGHWASE, J.]vre