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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
K.K. Sonawane, J.
Pandurang Narayan Jadhav - Appellant
Vs.
State of Maharashtra Through Investigating Officer Police Station Chhawani, Aurangabad - Respondent
Criminal Appeal No. 192 of 2017
Decided On : 12-04-2019
Indian Penal Code,1860 - Section 354 - Criminal Procedure Code,1973 – Sections 313,374 - Protection of Children From Sexual Offences Act, 2012 – Sections 3,5,7,9,10,2(d),29 - Indian Evidence Act,1872 – Section 8 - Negotiable Instruments Act, 1881 - Section 139 - Prevention of Corruption Act, 1988 – Section 20 - Teacher of "Sanskrit" subject and during relevant period of incident in year 2013 he was employed in school known located at, Aurangabad - Prosecutrix girl her cousin brother resident of village Ta. and District Aurangabad were taking education in appellants School - Timing of school was for standard to standard - In all four students from village of prosecutrix - girl used to attend school by vehicle School Van - Prosecutrix - was adolescent girl 13 years old studying in 7th standard at time of alleged incident - According to prosecution, on day of incident - Prosecutrix - girl, her cousin and minor boy from her village studying in 3rd Standard, all attended the school at. as usual by vehicle School Van - School timing of minor was. and both prosecutrix - Adolescent girl and her cousin used to take home minor daily with them in School Van - It has been alleged that on day of incident after school timing prosecutrix - girl and her cousin both were remained in classroom waiting for minor Rohit to return to home - Meanwhile appellant-accused came in classroom of prosecutrix – girl - He called prosecutrix - girl and asked to show her notebook - Appellant - accused gave advise to prosecutrix - girl to improve her handwriting - Held, Prosecutrix during relevant period of incident was adolescent girl of 13 years old school going student studying in 7th standard - It would be presumed that at relevant time she had an age of understanding to realize consequence of alleged act committed on part of accused - Conduct and demeanour of prosecutrix - girl disclosing mischief of accused teacher immediately to her mother is relevant under illustration (j) of Section 8 of Indian Evidence Act - Therefore there is no impediment to appreciate version of P.W.1-adolescent prosecutrix for charges pitted against accused in this case - I find this kind of defence propounded on behalf of accused appears to be fallacious and preposterous one - This ridiculous defence appears to be rest on figment imagination and such kind of defence put-forth by matured handicapped teacher to rebound allegation cast on behalf of adolescent - prosecutrix is incomprehensible and unacceptable in this case - It would be an stigma on sacred bonding of teacher - Student in an educational Institution - In statement under section 313(1) (b) of Cr.P.C. appellant - accused maintained silence and did not explain cause for his false implication on allegation nurtured on behalf of prosecution witnesses against him - Court do not find any infirmity or perversity in findings recoded by learned trial Court for adverse inference against appellant/accused - In contrast evidence of prosecution witnesses appears credible believable and deserves to be accepted – Moreover it would be significant factor for consideration that there was no serious endeavour on part of appellant-accused to rebut presumption under section 29 of POCSO Act or to disprove allegations of prosecution for sexual assault with adolescent prosecutrix in this case - Feeble attempt on behalf of appellant-accused to bring on record some sort of defence in cross-examination of witnesses found not sufficient to cause any serious dent in veracity of allegations nurtured on behalf of prosecution - It is true that prosecution did not examine witness Parmeshwar - a minor cousin of prosecutrix or any other independent witness in case - But in view of nature of subject-matter when appellant-accused did not succeed to discharge his burden of presumption under section 29 of POCSO Act all these circumstances are not much mean for consideration being an circumstances having devastating effect on prosecution case - textual facts in judicial precedents relied on behalf of appellant and quality of evidence on record in this case are clearly distinguishable and of no avail to appellant - In result Court not inclined to accept argument advanced on behalf of appellant to exonerate him from the charges levelled on behalf of prosecution in this case - appeal stands dismiseed
K.K. Sonawane, J.
This appeal takes exception to the impugned Judgment and order of conviction and resultant sentence passed by the Special Judge (POCSO Act), Aurangabad in Sessions Case No. 368 of 2013, thereby convicting the present appellant for the offence punishable under Section 10 read with Section 9(f) of the Protection of Children From Sexual Offences Act, 2012 ("POCSO Act") and awarded the sentence of Rigorous Imprisonment for five years and to pay a fine of Rs.2000/- in default to suffer further Rigorous Imprisonment for two months. Being dissatisfied with the impugned finding of conviction and resultant sentence, the appellant taking recourse of remedy under section 374 of the Code of Criminal Procedure ("Cr.P.C.") approached to this Court for redressal.
2. The scenario of the prosecution case in short compass is that, the appellant was the teacher of "Sanskrit" subject and during the relevant period of incident in the year 2013, he was employed in the school known as "Onkar Vidyalaya" located at Vanjarwadi, Aurangabad. The prosecutrix girl, her cousin brother Parmeshwar, resident of village Karodi" Ta. and District Aurangabad, were taking education in the appellant's School namely, "Onkar Vidyalaya". The timing of the school was from 8.00 a.m. to 1.00 p.m for 5th standard to 9th standard. In all four students from village "Karodi" of prosecutrix - girl used to attend the school by vehicle School Van. The prosecutrix - was the adolescent girl, 13 years old, studying in 7th standard at the time of alleged incident.
3. According to prosecution, on the day of incident i.e. on 16-08-2013, prosecutrix - girl, her cousin Parmeshwar and minor boy Rohit from her village studying in 3rd Standard, all attended the school at 7.30 a.m. as usual by vehicle School Van. The school timing of minor Rohit was 10.00 a.m. to 3.00 p.m. and both prosecutrix - adolescent girl and her cousin used to take home minor Rohit daily with them in the School Van. It has been alleged that on the day of incident, after school timing prosecutrix - girl and her cousin both were remained in the classroom waiting for minor Rohit to return to home. Meanwhile, the appellant-accused came in the classroom of the prosecutrix - girl. He called the prosecutrix - girl and asked to show her notebook. The appellant - accused gave advise to the prosecutrix - girl to improve her handwriting. During the conversation, he caught hold hand of prosecutrix - girl and pulled her towards him. He pressed her breasts and attempted to rub her cheek. However, appellant-accused noticed presence of the cousin Parmeshwar in the classroom. Therefore, he asked her cousin Parmeshwar to bring chalk box from the classroom of 8th Standard. The conduct and demeanour of appellant/accused raised suspicion in the mind of prosecutrix. Therefore, she herself left the classroom under the pretext of brining chalk box from classroom of 8th standard. But, the appellant/accused followed her in the classroom of 8th standard. According to prosecutrix, the appellant-accused attempted to close the door of the classroom, but any how she managed to get escape from the clutches of appellant-teacher. She came to her cousin Parmeshwar in the classroom and started weeping. The appellant- teacher again came near the prosecutrix girl under the pretext of giving advise to improve her handwriting and then went away. Thereafter, at about 2.30 p.m. they collected the minor Rohit and returned to home. The prosecutrix - adolescent girl narrated the incident to her mother, who had further disclosed about the incident to father of the prosecutrix and other relatives. On the following day, the parents visited to the school, but the appellant - accused was not found available in the School. The prosecutrix and her parents ventilated the grievance against the appellant-teacher to the headmistress of the School. Eventually, the report about the alleged incident came to be lodged to the Police of cantonment Polic
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