Mahesh Nanku Dhobi v. The State Of Maharashtra
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.351 OF 2017 IN CRIMINAL APPEAL NO.194 OF 2017 MAHESH NANKU DHOBI )...APPLICANT V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT Ms.Pracheta Rathod a/w. Mr.Arun Rajput i/b. Ms.Anjali Patil, Advocates for the Applicant.
Ms.A.A.Takalkar, APP for the Respondent - State.
CORAM
:
A. M. BADAR, J.
DATE :
7th MARCH 2017.
P.C. :
This is an application for suspension of sentence and release of applicant on bail during the pendency of the appeal filed by him. The applicant / accused has been convicted of the offence punishable under Section 10 of the Protection of Children from Sexual Offences Act and he has been sentenced to suffer rigorous imprisonment for 5 years apart from directing him to pay avk 1/6
fine of Rs.1,000/-, in default, to undergo simple imprisonment for one month. In addition, he is directed to pay compensation of Rs.20,000/- to the victim girl, in default, to undergo further simple imprisonment for 6 months.
Heard the learned advocate appearing for the applicant / accused. By taking me through the evidence of the minor female victim of the crime in question, the learned advocate argued that cross-examination of the victim child shows that she was tutored by her father and therefore her evidence is of no assistance to infer guilt of the applicant / accused in the crime in question. The learned advocate further argued that PW3 Dr.Shashank Tyagi in his cross-examination has accepted the fact that he is unable to tell whether the incident, as alleged, had occurred or not. With this, according to the learned advocate appearing for the applicant / accused , the applicant / accused is entitled for liberty during pendency of his appeal. As against this, the learned APP argued that the evidence of the minor female victim of the crime in question is clear and she has identified the avk 2/6
applicant / accused while in the dock. Therefore, in submission of the learned APP, the applicant / accused is not entitled for his release on bail.
I have carefully considered the rival submissions and also perused the copies of deposition of prosecution witnesses apart from the documentary evidence. According to the prosecution case, the applicant / accused who is neighbour of the female child, has sexually assaulted her. As the victim child is stated to be below 12 years of age, Section 10 of the Protection of Children from Sexual Offences Act is pressed in service by the prosecution.
The prosecutrix is reported to be five years of age. She is a child witness. She deposed about sexual assault on her by the applicant / accused during the course of her chief examination by the learned Special Prosecutor. However, while in crossexamination, the prosecutrix has stated that there used to be quarrel between mother of the applicant / accused and her own avk 3/6
mother. She accepted the fact that her mother was angry with mother of the applicant / accused. Thereafter, the prosecutrix has accepted the fact that her father had tutored her by asking questions to her and by telling answers to those questions. In answer to Question No.75 in cross-examination, the prosecutrix has accepted the fact that her father has told her to tell in the court that the applicant / accused had inserted hand and played with his finger at the place of urination. In very next question to her, the prosecutrix has accepted the fact that infact no such incident had ever happened with her. This, prima facie, shows that the prosecutrix has denied the incident of sexual assault allegedly committed on her by the applicant / accused.
Child witnesses are prone to tutoring is a fact noted in catena of judgments even by the Hon'ble Apex Court and in order to place reliance on version of the child witness, possibility of the child witness being tutored is required to be excluded. In the case in hand, evidence of the prosecutrix goes to show that she is tutored by her father and she had deposed what her father has told her to depose before the court.
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PW3 Dr.Shashank Tyagi in his evidence has accepted the fact that he is unable to tell whether the incident, as alleged by the prosecution. has occurred with the prosecutrix or not. It is worthwhile to note that according to the prosecution case, this witness had examined the prosecutrix.
This is the nature and quality of the evidence available against the present applicant / accused. In the wake of this evidence, I am of the considered opinion that liberty of the applicant needs to be restored to him during pendency of the appeal filed by him. Therefore the order :
i) The application is allowed.
ii) Substantive sentence of imprisonment imposed upon the applicant / accused is suspended and the applicant / accused is directed to be released on bail on his furnishing P.R.Bond in the sum of Rs.15,000/- and on furnishing surety in like amount.
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iii)As a condition of this order, the applicant / accused should not contact, in any manner, either the prosecutrix or her family members during pendency of the appeal filed by him.
(A. M. BADAR, J.) avk 6/6