2008 Supreme(Bom) 413

IN THE HIGH COURT OF BOMBAY
R.M.S. KHANDEPARKAR, J.
Maloji Patil s/o.Nanappa Patil - Appellant
Versus
State of Goa - Respondent
Criminal Appeals No.64 & 71 of 2006
Decided On : 03/14/2008

Headnote:Negotiable Instruments Act, 1881 - Section 138 - Acquittal - Dishonour of cheque - Notice - Service of - Held - No convincing evidence to hold that demand notice was sent at correct address - No interference required.

       Indian Penal Code, 1860 - Sections 354 and 509 - Goa Children’s Act, 2003, Sections 8(2) - Appeal against order of conviction and sentences - Maintainability of - Allegation against accused-appellant, a primary school teacher that he committed offence of outraging modesty subjecting to sexual abuse, a minor girl of 8 years studying in 3rd standard in primary school - Prosecution succeeded in proving his case and he was convicted and sentenced to undergo punishment for 3 months and a fine of Rs. 500/- on account of offence punishable under Section 354, IPC and one month simple imprisonment and a fine of Rs. 200/- for offence punishable under Section 509 and to suffer 3 months simple imprisonment and fine of Rs. 2000 for offence punishable under Section 8(2) of said Act - First appeal filed against impugned orders of convictions and sentences by accused-appellant failed - But second appeal filed against punishment of fine of Rs. 2,000 under Section 8(2) of said Act by State Government - Allowed and fine under Section 8(2) of the said Act of Rs. 2000 enhanced upto Rs. 1,00,000/-.

       Indian Penal Code, 1860 - Sections 354 and 509 - Goa Children’s Act, 2003, Section 8(2) - Sexual assault - Child abuse - Outraging modesty of minor girl - Accused, a Teacher in School - Put hand of girl on his private body part and touched her private body part in classroom - Girl got scared and started crying - Her testimony corroborated with evidence of other students present in classroom - Students, girls and boys of school examined as witnesses - Consistently stated that accused misbehaved with them - Four of witnesses described manner in which accused tried to outrage modesty of girls including victim girl - Description about place of offence fully established by evidence of witnesses - Merely because panchas happened to be relative of victim girl, not sufficient to discard panchanama - Accused rightly convicted for offence committed. - on consideration of the above evidence on record, it is apparent that the girls, including the said girl from the concerned school, have described the incident without any material discrepancy on the relevant aspect of the incident. The girls and the boys from the school who had been examined as witnesses, have consistently stated that the accused person misbehaved with them and in particular with PW 3 and PW 6 inasmuch as that the accused not only touched the private part of those two girls, but also made the said girl to touch the private part of the accused. Though it was sought to be contended on behalf of the appellant-accused that there is discrepancy as regards description of the incident, as also the place of the alleged incident and the timing relating to the alleged incident, proper reading of the testimonies of all those witnesses would reveal that none of these contentions are borne out from the record. The testimonies of all these witnesses are consistent in relation to the timing of the incident, as also the place of the incident, so also in relation to the description of the incident.

       Four of the witnesses have described the manner in which the accused tried to outrage modesty of the girls, including the said girl and also that he had acted with the intention to insult modesty of the girls. All the four witnesses have consistently stated that the incident had occurred prior to the recess and the said girl was found crying during the time of recess and on being asking the reason for crying, she had narrated the incident. The evidence on record, therefore, as regard the acts which constitute the offences punishable under Sections 354 and 509, IPC, as also Section 8(2) of the said Act, is very clear and cogent to establish the said offences and to hold the accused guilty of having committed the said offences.

       Taking into consideration the above ref erred evidence on record, merely because there was some delay of 2 days in lodging the FIR or that prior to the lodging of the FIR there was discussion with the villagers, that would hardly vitiate the findings arrived at on the basis of the cogent evidence regarding the offence which had been committed by the accused. It is true that the evidence on record also discloses that the parents of the girl witnesses had inquired with the girls regarding the behaviour and the conduct of the accused in the school and in particular about the incident in question, that itself also would not be sufficient to discredit the testimony of those girl witnesses who were subjected to thorough cross-examination. Their testimonies could not be demolished nor discredited even by lengthy cross-examination.

       In the facts and circumstances of the case, merely because the panchas were relatives of the said girl, it does not make any difference as far as genuineness of the panchanama is concerned. Whatever has been stated in the panchanama regarding the description of the site, is fully corroborated by the student witnesses in every respect. It is, however, true that the Investigating Officer should be reluctant to accept such persons as panchas for the panchanamas. But, it is equally pertinent to note that even in the cross-examination, the Investigating Officer, apart from inquiring whether the panchas were related to the said girl, was not questioned on the point as to why the said persons were accepted as panchas for the said panchanamas and as to whether any efforts were made to procure any other panchas or not. It is also pertinent to note that the said statement of the Investigating Officer about the absence of knowledge to him, about the relationship between the panchas and the said girl, was not sought to be challenged in the course of cross-examination. In the circumstances, merely because the panchas happened to be relative of the victim girl, that itself, is not sufficient to discard the panchanama and even otherwise, as already stated above, the description of the place of offence has been fully established through the testimony of the student witnesses.

       For the reasons stated above, therefore, I do not find the case put forth by the prosecution to be improbable one. Rather the testimonies of the witnesses clearly lend full support to the accusation made against the appellant-accused and the cogent evidence on record leaves no room for the doubt and clearly establishes that the accused and accused alone has committed the offence for which he has been convicted.