In criminal revision, the High Court found no merit in the petitioner's appeals challenging conviction for offences under IPC 354 and 506. The Court held lower courts' findings on delay, evidence, and sentencing were sustainable and saw no reason to interfere.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.117 OF 2005.
Mangesh Suryakant Parkhe. ...Petitioner
V/s.
The State of Maharashtra. ...Respondent
Shri H.D.Gole, for petitioner
Shri A.S.Gadkari, APP for respondent.
CORAM: A.M.KHANWILKAR,J
DATE : APRIL 21, 2005
P.C. :-
1. Heard the counsel for the parties.
2. I see no reason to interfere with the concurrent
view taken by the courts below, in so far as the
finding of guilt recorded against the Petitioner for
offence punishable under section 354 and 506 of the
I.P.Code. That view is concurrent view, taken by the
courts below on appreciating the evidence on record.
3. To get over this position, Shri Gole, the counsel
for the petitioner contends that the complaint has been
filed after five weeks and the delay has not been
explained by the prosecution. This argument clearly
overlooks the finding recorded by the trial court in
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paragraph-12 of its decision. The court below has
found that the prosecutrix was threatened by the
petitioner and because of that threat, she did not dare
to disclose the incident to any one. She disclosed the
incident only after five weeks to her companion namely
Dipali at the time of defecating by the side of road on
day in Diwali vacation and thereafter, on the next day,
Dipali disclosed that incident to her mother. The
courts below have accepted the explanation offered by
the prosecution being natural. It is therefore, not
open for this court to reappreciate the evidence to
take a different view other than, the view taken by the
courts below on this aspect. That is not the scope of
interference in Revisional jurisdiction.
4. Mr.Gole the counsel for the petitioner, then
contends that prosecution has not examined the Doctor
who has had occasion to examine the prosecutrix. It is
true that the prosecution has not examined the Doctor
but that makes no difference to the recording of the
finding of guilt. The examination of Doctor or testing
medical evidence would have arisen, if the allegation
was one of rape. That is not the case on hand. In the
present case, the prosecution alleges that the
prosecutrix who was at the relevant time, 7 or 8 years
old was taken upstair of his house by the petitioner,
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where she was made to sleep on a quilt on the ground
and the incident in question took place. The nature of
allegations about the incident do not require evidence
of the Doctor to corroborate the same. In these
circumstances, nonexamination of the doctor will make
no difference to the finding of guilt recorded by two
courts below, which is substantiated from the record.
5. Mr. Gole then contends that no independent
witness has been examined by the prosecution.
According to him Manisha could have been examined by
the prosecution. However, this submission overlooks
that Manisha was not eye-witness to the incident,
whereas, she claims to have been told about the
incident. In other words, her evidence was only
hearsay evidence for the present case. The only
evidence that can be the basis is that of the
prosecutrix; as it is not the defence case that any
other person was present at the relevant time and that
person was not examined. The evidence of the
prosectrix as well as of her mother which has been
accepted by the two courts below, in my opinion, is
sufficient to record finding of guilt. Non-examination
of Manisha therefore, will make no difference.
6. Mr.Gole then contends that the date of incident
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was initially recorded as 25th September, 1995,
however, that date has been subsequently changed after
15 days by way of supplementary statement. This
submission overlooks that the prosecutrix did not
disclose the incident to any one because of the
circumstances disclosed by her, she was only 7 to 8
years of age at the relevant time. The incident was
disclosed after five weeks from the date of incident.
In this background, if there was some mistake about the
date of the incident and if, that has been corrected by
the supplementary statement by the prosecutrix who was
exposed to cross examination on that point and whose
version has been accepted by the two courts below, in
my opinion, change of date of the incident after 15
days will not vitiate the finding reached by the courts
below about the actual incident as had occurred. The
courts below have considered this aspect in paragraph
No.4 of the Judgment and it is a possible view. If, it
is a possible view, it is not open for this court to
interfere with the same in exercise of revisional
jurisdiction, merely because another view can also be
taken in the same fact situation of the case.
7. Mr. Gole next contends that the courts below
have not properly appreciated the defence version.
This submission clearly overlooks the discussion in the
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impugned Judgment in paragraph No.9. The version that
the petitioner has been falsely implicated in the
present case out of vengeance, only to avoid the
liability of the father of the complainant, has been
considered by the courts below. The courts below have
found that except putting certain suggestions, no
evidence has been produced by the defence to establish
the fact asserted by them. No fault can be found with
the said finding recorded by the courts below. If it
is so, it is not a case of manifest error committed by
the lower court. On the other hand, no fault can be
found with the approach of the lower court and view
taken by the court is a possible view. Hence it is not
open for this court to exercise its revisional
jurisdiction.
8. Lastly, Mr. Gole contended that the punishment
imposed by the courts below is excessive. He submits
that Section 354 provides for alternative punishment.
In the present case, the applicant has been sentenced
to undergo R.I. for 3 months and to pay fine of
Rs.1,000/-(one thousand) i.d. to suffer S.I. for 3
weeks, for the offence punishable under section 506 of
the I.P.Code and to suffer R.I. for 2 years and to pay
fine of Rs.1,000/-(one thousand) i.d.to suffer S.I.
for 3 months, for the offence punishable under section
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354 of the I.P.Code. The trial court in paragraph
No.24 has examined the plea of the petitioner that
leniency be shown. Accordingly, the trial court, in
the fact situation of the present case awarded proper
punishment as the victim who was sexually molestated
was only of 7 to 8 years of age at the relevant time.
9. Even the Appellate court has considered the
submission of the defence on the point of sentence.
There are no mitigating circumstances. Punishment
awarded by the lower courts is appropriate. In
exercise of revisional jurisdiction, I see no reason to
interfere with the view taken by the courts below even
on the point of sentence. In my opinion, there is no
error either in the approach or conclusion reached by
the courts below.
10. Accordingly, this petition is dismissed as devoid
of merits.
3 issues framed by the court
Whether delay in filing complaint and non-examination of doctor, independent witness, or doctor vitiate the conviction.
Whether change of date of incident after supplementary statement vitiates the finding of the lower courts.
Whether the sentence imposed is excessive.
1 provisions across 1 enactments
Mangesh Suryakant Parkhe
The State of Maharashtra
A.M. Khanwilkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court