Criminal Revn. Appln. No. 57 of 1993, D/- 9 -2 -1994. Case: Narayan Iranna Potkanthi Vs State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Revn. Appln. No. 57 of 1993, D/- 9 -2 -1994 |
| Counsel | For Petitioner: D. R. Pole as amicus curiae, Advs. and For Respondents: A. S. Bajaj, APP, Advs. |
| Judges | M. S. Vaidya, J. |
| Issue | Evidence Act (1 of 1872) - Sections 118, 3; Indian Penal Code (45 of 1860) - Sections 376(2)(f) |
| Citation | 1994 CriLJ 1752 |
| Judgement Date | February 10, 1994 |
| Court | High Court of Bombay (India) |
Judgment:
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The Assistant Sessions Judge, Nanded, had convicted the present revision-petitioner of offence punishable under S. 376 of the Indian Penal Code, in Sessions Case No. 37/1990 and had sentenced him to suffer R.I. for five years and to pay a fine of Rs, 1,000/- in default, to suffer further R.I. for three months. An Appeal was carried in Criminal Appeal No. 46/90 to the Sessions Judge and the learned II Additional Sessions Judge, Nanded dismissed that appeal on 16-1-1993. The revision petitioner was, then, taken in custody for undergoing the sentence. It was through Jail that he had sent a letter-cum-appeal to this Court for considering the matter because, according in him, the decision of the case was not correct according to the true facts and the Courts below had not given him a proper chance to submit his evidence. It was also contended that the decision was given without hearing his side and that the sentence was awarded merely on suspicion.
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In view of the gravity of the offence, Shri D. R. Pole, a senior advocate, was requested to appear for the present revision-petitioner and to argue the matter. In the course of his arguments, Mr. Pole, invited our attention to the points urged on behalf of the petitioner in the Courts below, namely, that the first information report in question was a delayed FIR and that neither the clothes of the petitioner nor the clothes of the victim girl were found to hear stains of semen. It was also pointed out that the learned Assistant Judge had committed, while recording the evidence, an error in omitting in record his satisfaction that the victim, who was a child witness was aware or was made aware of her duty to tell the truth though no oath could be administered to her on account of the fact that she was unable to understand the sanctity of oath. It was, therefore, submitted that these points deserved consideration at the hands of this Court while deciding the revision application. It was also submitted that the evidence adduced by the prosecution was not necessarily worthy of safe - reliance though, it was fairly- conceded that if believed, the same could warrant a conviction of the revision-petitioner for the offence in question. Mr. Pole did not press the point that in view of the S. 6 of the Probation of Offenders Act, the petitioner deserved to be considered for under that Act, because, he rightly pointed out that under S. 376(2)(f) of the Indian Penal Code, the offence would be punishable with rigorous imprisonment for a term which was not less than 10 years, but which might extend to imprisonment for life. It was, however, submitted that looking to the young age of the petitioner, it may be considered, whether he deserved any leniency in the matter of quantum of sentence.
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The learned A.P.P. supported the decision of the Court below.
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It need not be stated that it is the settled law that while sitting in revision, this Court could not appreciate the evidence afresh as if it was a Court of Appeal unless it was shown that the appreciation of evidence was tending to be perverse or that there were procedural errors in the conduct of the trial. (See Vimal Sukumar Patil v. Sukumar Anna Patil, 1981 Mah LJ 82: (1981 Cri LJ 210)), following the decision of the Supreme Court in the case of State of Orissa v. Nakula Sahu, AIR 1979 SC 663: (1979 Cri LJ 594).
Bearing this point in mind, we have gone through the entire evidence recorded in this case, with the assistance of Shri Pole as well as Shri A. S. Bajaj, the learned A.P.P. On considering the evidence as a whole along with the statement of the petitioner recorded under S. 313 of the Code of Criminal Procedure, we find that no procedural error has been committed by the learned Assistant Judge in recording the evidence nor has he committed any error on account of which it could be said that his appreciation of evidence was tending to be perverse.
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To state the facts briefly, the victim-Balmani was a girl aged about 7 years and she was playing outside her residence with her brother Suresh, aged about 8 and a half years and younger sister Bharati. On 5-1-1990 at about 3.00 p. m. Balmani was, in fact, cleaning the household utensils and her brother and younger sister were just in the vicinity. At about 3.00 p.m. the petitioner, who was, then, a boy of 19 years of age and who happened to be a neighbour of the family of the victim, called Balmani, her brother and Bharati to his house under the pretext that he would give them some flowers. When the three children went to his house, he asked Bharati and Suresh to go away from there and after they had gone, he took Balmani to the inner part of his house. There was a cot at the centre of the room on which the petitioner, then, allegedly spread bed-sheet and, then, he made Balmani to lie down on the cot. Thereafter, he undressed himself, fell on her person and raped her. Balmani raised cries and, then, the petitioner gave her coin of 10 paisas, asking her to get sweets for her out of that money and, then, allowed her to go. Before doing so, he took the frock which was on her person and washed it under the pretext that it was stained with mud. Balmani returned to her mother - Gangabai (PW 5) and reported the incident to her. The mother examined the private parts of the girl and found some swelling on her private parts. The father of the girl - Gangadhar (PW 1), who happened to be a clerk working in the Court at Mukhed, was living at Mukhed. Therefore, no immediate action could be taken. According to the prosecution in the same evening, the parents of the petitioner approached Gangabai (PW 5) and begged apologies for the misdeeds of the petitioner. By this time, a crowd had gathered near the house. PW 5, Gangabai proceeded to Mukhed early in the next morning and reported the incident to Gangadhar (PW 1) at about 7.30 a.m. Gangadhar took some...
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