HEMANT TUKARAM KARANDE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This revision is directed against the judgment and order dated 05.03.2005 passed by Judicial Magistrate First Class, Court No.6, Nagpur in Criminal Case No.1068/1999, convicting the revision applicant for the offence punishable under Section 354 of the IPC and sentencing him to undergo simple imprisonment for four months and to pay a fine of Rs.800/, in default to undergo imprisonment for 15 days and for an offence punishable under Section 341 of the IPC to pay a fine of Rs.500/ in default to suffer simple imprisonment for 15 days and confirmed in Criminal Appeal No. 22/2005, only insofar as the conviction and sentence under Section 354 of the IPC is concerned.

(2.) The revision applicant was aged about 57 years at the relevant time and was working as Director of Akashwani, Nagpur. Samson Manwatkar was working as a subordinate Government servant under him. It is the case of the prosecution that on 22.07.1999, the complainantUpasna, aged about 8 years, daughter of Samson Manwatkar lodged a report with Police Station, Sadar stating that she had gone in the evening along with her father at the residence of boss of his father. Both of them entered his house when he was alone. He came in the first room and caused her seat on his thigh and kissed her on her cheeks and asked her name. Thereafter, he insisted on her to see his house though she stated that she had already seen his house but he still insisted, took her in the house and had shown her bathroom, kitchen and thereafter took her in the bedroom. He sat on the bed and caused her to sit on his thigh and took her kisses and thereafter slept on the bed, caught hold of her and moved his private part on her body. Thereafter, she somehow escaped and went to her father in the drawing room and both of them then went out. She started weeping near Akashwani hall and told him about the incident. They again returned back to the house of the boss and her father protested on which the boss apologized and then they went back home. On the next day, they lodged report in the afternoon and it was taken by Police Sub Inspector N. M. Patil, who is also the Investigating Officer. After recording the FIR, he recorded statements and also prepared spot panchanama and filed the chargesheet. The learned Magistrate held the trial and after hearing the evidence brought by the prosecution, recorded conviction and sentence as above. The revision applicant preferred appeal before the appellate Court vide Appeal No.22/2005, who confirmed the conviction under Section 354 of the IPC and directed him to suffer simple imprisonment for four months and fine of Rs.800/ but acquitted him of the charge under Section 341 of the IPC. Hence, this revision application.

(3.) In support of the revision application and assailing the impugned judgments and orders, the learned counsel for the revision applicant submitted that the FIR lodged by complainant Upasna Samson Manwatkar, aged about 8 years, does not at all show the name of revisionapplicant anywhere but shows 'Saheb' as the culprit and still in the printed FIR, against the name of the accused, name of revision applicant was shown, and this is not explained by the prosecution at all. The Officer recording the FIR was PSI Patil, who was also the Investigating Officer but he was not examined by the prosecution for the flimsy reason recorded by the trial Judge. He then submitted that the Investigating Officer had recorded statements of several independent witnesses but except mother, father and complainant herself, none was examined by the prosecution and, in fact, the chargesheet shows that all other witnesses were given up. He then submitted that there is an unexplained delay of about 18 hours on the part of the complainant in lodging the FIR, but then that was crucial because the name of the revision applicant still was not disclosed in the report Exh.39. Applicant was not known to the girl. No identification parade was held. Looking to the explanation given by the applicant in his statement under Section 313 Cr.P.C. about verification of caste of about 40 employees including Samson Manwatkar, there was clear possibility of Samson involving the applicant in a false case. Samson was working at Akashwani, Nagpur for 15 years and was never transferred out of Nagpur and his case for transfer was being processed by the applicant as an higher officer and in order to thwart the same, he appears to have taken revenge. He then submitted that not a single neighbour or independent witness was examined by the prosecution for which no explanation was tendered. He then submitted that non examination of the police officer who recorded report and the FIR and also made investigation is fatal to the prosecution particularly because the evidence of three witnesses examined by the prosecution namely; mother, father and girl is full of omissions and contradictions, which could not be even shown to the Investigating Officer because he was not examined. He then cited some judgments in support of his contention that non examination of the Investigating Officer must result into acquittal of the accused. He then contended that the prosecution theory appears to be highly improbable and impossible because the applicant was aged about 57 years at the relevant time and it is alleged that in front of her father in the first room he caused her to sit on his thigh, kissed her and then took her inside and that her father Samson did not follow her inside and, therefore, the whole prosecution case is suspicious. The learned counsel then contended that the revision applicant, who was occupying such a high post, never had any antecedent. At the verge of his retirement from service he was caught in a trap. The impugned judgment has caused miscarriage of justice to him. Per contra, Mrs. Jachak, learned A.P.P. for the State, supported both the judgments of conviction under Section 354 of the IPC and submitted that they are based on evidence and there is no perversity of whatsoever nature and, therefore, the revisional jurisdiction should not be exercised and prayed for dismissal of his revision application.