Narayan s/o Iranna Potkanthi Through Jail vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1994 Supreme(Bom) 546

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
M.S. Vaidya, J.
Narayan s/o Iranna Potkanthi Through Jail ....Petitioner
Versus
The State of Maharashtra....Respondent.
Criminal Revision Application No. 57 of 1993, decided on 9/10-2-1994.
Advocates appeared:
D.R. Pole, for revision petitioner.
A.S. Bajaj, for respondent.

Headnote:Section 235-Indian Penal Code, 1860-Section 376 (2) (f)-Punishment Leniency in award of.
       When judge has already taken very lenient view, no further interference called for.
       Section 376 (2) (f)-Civil Procedure Code, 1973-Section 154--Evidence Act, 1872-Section 114-Delay in lodging FIR-Where in minors rape case mother went to other village to inform husband and both next day returned and lodged complaint-Held delay explained fully.
       True it is that there was some delay in lodging the first information report, hut this delay has been properly explained, both by mother and father. The mother was an illiterate woman and it appears from her evidence that on account of the shock sustained by her due to the sexual violence meted out to her child, she had broken in tears immediately. One can imagine how she must have taken some time to take some decision in the matter. Her reaction in not approaching the public officials till the matter was informed to her husband also was quite eloquent and natural. The father explained how the mother reported the matter to him early at about 7.30 a m. at Mukhed and how he required some time to obtain Casual Leave from his officials and to come to Degloor for reporting the matter to the police. As soon as the matter was reported, the Panchnama of the scene of offence was drawn, but the revision petitioner could not be arrested then and there because, be was not found at his residence. He was arrested on 8-1-1990 and that was the reason why he could not be referred earlier to Medical Officer for his medical examination. This delay in the arrest and in referring him to the Medical Officer also is, thus, properly explained by the prosecution. It cannot be said that such delay could be read as want of prompt and material corroboration to the evidence of victim,
       Section 376 (2) (f) - Evidence Act, 1872-Settions 3, 59 and 118-Rape case-Minor girl-Rape on-No blood or semen on clothes-Its affect-When can be taken as adverse regarding evidence showing clothes been washed by accused immediately after offence?
       There is no reason to suppose that the girl was narrating something that was not true or, that she was induced or influenced to tell before the Court something which was untrue. At the end of her cross-examination she was clear enough iu telling that she was not deposing at anybody. insistence and that her father had never asked her to depose to the facts in a particular manuer or otherwise. Under such circumstanees, it is not thought by the High Court that the irregularity committed by the learned Assistant Sessions Judge in omitting to record the certificate a indicated by tho Supreme Court or by the Gujarat Higil Court in tile above mentioned relations ilas seriously affected the admissibility or the weight of the evidence of the child witness.

JUDGMENT - M.S. VAIDYA, J.:--The Assistant Sessions Judge, Nanded, had convicted the present revision-petitioner of an offence punishable under section 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 to 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.

2. 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 bear stains of semen. It was also pointed out that the learned Assistant Judge had committed, while recording the evidence, an error in omitting to 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 section 6 of the Probation of Offenders Act, the petitioner deserved to be considered for under that Act, because, he rightly pointed out that under section 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.

3. The learned A.P.P. supported the decision of the Court below.

4. 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) 1, 1981 Mh..L.J. 82: 1981 Bom.C.R. 494 following the decision of the Supreme Court in the case of (State of Orissa v. Nakula Sahu) 2, A.I.R. 1979 S.C. 663.

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 APP. On considering the evidence as a whole along with the statement of the petitioner recorded under section 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.

5. To state the facts briefly, the victim-

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