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2023 Supreme(Online)(Bom) 26372
HIGH COURT OF BOMBAY
HON'BLE SHRI JUSTICE MAKARAND SUBHASH KARNIK
MAHESH BABURAO DHAVALE – Appellant
Versus
STATE OF MAHARASHTRA – Respondent
APEAL/815/2023
2023:BHC-AS:28806 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION APPEAL NO. 815 OF 2023 WITH INTERIM APPLICATION NO. 1858 OF 2023 Mahesh Baburao Dhavale Age 51 yrs, Occ: Service, R/o, 27/5, Nande Building, Ganesh Nagar, Near Ram Mandir, Ambegaon, Pathar, Pune -46 ..Appellant VS.
The State of Maharashtra ..Respondent Mr. Vaibhav Gaikwad i/b Mr. Shriram Shantaram Chaudhari, for the Appellant.
Ms. Anamika Malhotra, APP for the State.
API- Mr. C.C. Thorbole, Hadapsar Police Station, Pune city present.
CORAM : M. S. KARNIK, J. DATE : AUGUST 11, 2023 ORAL JUDGMENT :
1. The challenge in this appeal is to clause (vi) of the operative portion of the judgment and order dated 22/04/2022 passed by learned Extra Joint Additional Sessions Judge, Pune in Special Case (POCSO) No. 155 of 2017 and consequently, to quash and set aside the Regular Criminal Case No. 2323 of 2022 pending before learned Additional Chief Judicial Magistrate, Shivajinagar, Pune.
2. The appellant is the father of the minor victim girl. The accused faced trial in the special case before the POCSO Court for the offences punishable under Sections 354A, 324 w/34, 323 r/w 34, 427 r/w 34 of the Indian Penal Code, 1860 (“IPC”, for short) and under Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”, for short). The FIR came to be lodged by the complainant with Bharti Vidyapith Police Station, Pune. It is alleged that on 09/01/2017 at about 8.00 a.m., her daughter i.e.
the victim had been to school. When she came back home, the victim was in a frightened condition. The victim informed that the accused had committed acts against her which is an offence punishable under the aforesaid sections. On being questioned by the complainant, the accused assaulted the complainant and the appellant herein.
3. The charge was framed against two accused for the offence punishable under Sections 354A, 324 r/w 34, 323 r/w 34, 427 r/w 34 and under Sections 8 & 12 of POCSO Act. The prosecution examined 6 witnesses. The appellant was examined as P.W.4. The trial Court framed the following issues and rendered the findings as under :
Sr.No Points Findings
1. Does prosecution prove that on 09.01.2017 between 16:00
hours to 17:55 hours in washroom situated in the basement of Mahadic Hostel, Dhanakwadi, Pune and on 16th December at Ganesh Kalakrida Manch, Swarget accused No.1 Vijay followed a victim minor girl, pressed her breast and committed sexual harassment to her ?
Negative
2.
Does prosecution further prove that on the aforesaid date, time and place accused Nos.1 and 2 in furtherance of their common intention voluntarily caused hurt to victim and her parents ༡
Negative
3.
Does prosecution further prove that on the aforesaid date, time and places accused Nos. 1 and 2 in furtherance of their common intention committed mischief by causing wrongful loss or damage to the articles of the institute of complainant?
Negative
4.
Does prosecution further prove that on the aforesaid date, time and place accused No.1 with sexual intent pressed breast of a victim minor girl is said to commit sexual assault ?
Negative
5.
Does prosecution further prove that on the aforesaid date, time and place accused No.1 committed sexual harassment upon a victim minor girl?
Negative
6.
What order?
As per final order.
4. The trial Court for the reasons mentioned in the judgment and order, acquitted the accused; however, in the operative portion of the order at clause (vi) it is observed thus :
“vi) PW-4 Mahesh Baburao Dhavale resident of 27/5 Nande Building, Ganesh Nagar, Near Ram Mandir, Ambegaon Pathar, Pune-46 has given false evidence in the Court, and compelling victim to depose falsely in the Court, hence, the Office Superintendent of the District and Sessions Court, Pune is hereby directed to lodge complaint against him for offence punishable under Section 193 of the Indian Penal Code within two months f
