IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 876 OF 2008 CRIMINAL APPEAL NO. 876 OF 2008 CRIMINAL APPEAL NO. 876 OF 2008 Bhaskar Waman Gavale ) Aged - 57 years, Ocu-Service, ) Residing at Jamadari, Nandgaon, ) Taluka-Nandgaon, District-Nashik) ...Appellant (Orig.Accused) vs. The State of Maharashtra ) Through Nandgaon Police Station ) ...Respondent Mr.S.K. Shinde i/b. Mr.Ajit Ram Pitale for the Appellant. Mr.D.P. Adsule, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : NOVEMBER 21, 2008 DATED : NOVEMBER 21, 2008 DATED : NOVEMBER 21, 2008 ORAL JUDGMENT :- ORAL JUDGMENT :- ORAL JUDGMENT :- 1. Heard Counsel for the appellant and APP for the State. 2. This appeal had come up for admission on 4th September, 2008. At the time of hearing of the appeal for admission, learned Single Judge (Coram : R.S. Mohite, J.) who was pleased to hear the appeal has held that no ground was made out to admit the appeal and therefore, record and proceedings were called for. The - 2 - following order was passed in the appeal :- "1. After hearing the Advocate for the appellant, prima facie, it appears that there is no ground to admit this appeal. There is evidence of 3 child witnesses to the effect that the appellant who was their teacher molested them. However, it is necessary to call for record & proceedings. Hence, record & proceedings be called for. Thereafter, the following order was passed in the Criminal Application for bail :- "1. By a separate order passed today in the appeal, I have called for R & P on the prima facie footing that there is no ground to admit the appeal. In the circumstances, place the application for hearing alongwith appeal for admission on 10.11.2008." 3. When the matter came up for admission again on 12.11.2008, I have heard the learned Counsel appearing on behalf of the appellant at length on the criminal application for bail. The record and proceedings were received by the office and by a detailed order, the application for bail was rejected. However, since the sentence imposed by the trial court was one year, the appeal was kept for final hearing at the admission stage and it was stood over to 20th November, 2008 and the appeal was kept part heard. Thereafter, I have heard - 3 - Counsel for the appellant at length on 20th November, 2008. The learned Counsel also placed the file of compilation of evidence. 4. The prosecution case is that the appellant was working as a teacher in the Zilla Parishad Primary School at Babhulwadi. Both the victim girls were studying in the said primary school. The prosecution case is that on 21st November, 2003 at about 10 a.m. the accused was taking class of the students and the other teacher working in the school was absent and therefore, he was managing both the classes on that day. The prosecution case is that the accused asked the victim girls to go to the vacant room and two girls viz. one Shakuntala and another girl Yogita were asked to keep a watch at the door of the said room by the accused and thereafter, he went inside the room and closed the door. He asked PW1 to remove her knicker and when she refused to do so, he removed it himself and thereafter, put her on the table and slept on her person. When she started weeping, he asked her to get down and thereafter, he put the other girl PW2 on the said table and slept on her person. It is the prosecution case that he tried to commit sexual intercourse with both the - 4 - girls and threatened to beat them if they inform this incident to any other person. The prosecution case is that however, one of the girls informed the incident to the aunt of PW2 and thereafter, aunt of PW1 and PW2 came to school and abused the accused. Some people gathered there also abused the accused. The prosecution case is that though the police patil was informed about the incident, he did not lodge FIR and thereafter, after a lapse of about 10 days, FIR was lodged at the police station, Nandgaon. The investigation was made by the officer. Both the girls were sent for medical examination. The statements of the witnesses were recorded. The trial court framed the charge for the offence punishable under Section 376 read with 511 of the IPC and under Section 3(iii)(xi) and (xii) of SC and ST (Prevention of Atrocities) Act. The accused pleaded not guilty to the said charge. The prosecution examined 9 witnesses. The trial court, however, came to the conclusion that no case was made out for the offence punishable under Section 376/511 of the IPC. The trial court, however, found the appellant guilty for the offence punishable under Section 354 of the IPC and convicted him for outraging modesty of young girls and sentenced to suffer SI for one year. The appellant was - 5 - also acquitted for the offence punishable under Section 235 of Cr.P.C. of the offence punishable under Section 3(iii), (xi) and (xii) of SC & ST (Prevention of Atrocities) Act. 5. Shri Shinde, learned Counsel for the appellant submitted that the appellant was a handicapped person having 51% disability and he was prominent and competent teacher in the school. He was working in the school for long time. He submitted that firstly, there was gross delay in filing the FIR. Secondly, he submitted that the FIR was lodged at the instance of a person who did not belong to the said village and the said person had instigated the parents of the victim girls to lodge the said complaint. He submitted that from the evidence which was brought on record by the prosecution and the circumstances which were narrated by the victim girls, the story put up by the prosecution case was totally improbable. He submitted that the school was situated in a busy locality and there were two rooms in the said schools. Each room was occupied about 35 students. Since the only two teachers were working in the school and since the other teacher had remained absent, the responsibility to teach girls in both the classrooms was - 6 - on the appellant. It was submitted it was improbable that such an incident would take place at 10 a.m. in the morning and in the presence of 60-70 students who were in the other room. He submitted it was hard to believe that the appellant would have committed the said offence in broad day light in the presence of all the students who were outside the room. He submitted that when the first victim girl raised hue and cry, the other students had gathered there, according to prosecution. However, none of these students were examined by the prosecution in support of the case put up by the victim girl. He further submitted that it was difficult to believe that the appellant who was a teacher in the said school for considerably long time would commit the offence in the presence of the other victim girl and particularly, when two other girls were keeping a watch outside the room. He then submitted that number of improvements had been made by the two victim girls viz. PW1 and PW2 and there were several inconsistencies in the statements of both these witnesses on number of aspects. He further submitted that the aunt who had come to the scene of the offence also had made a lot of improvements in her statement. He submitted that it was difficult to believe that if the complaint of earlier - 7 - act was made by the victim girls to her parents, the parents would still continue to send her in the said school. He also invited my attention to the statement of mother of the PW1 and PW5 Gangadhar Laxmanarao Aushikar. He submitted that both these witnesses have made a lot of improvements in their case. He submitted that from the evidence of PW5, it was apparent that this witness had some grudge against the teacher and therefore, he had gone out of his way to threaten the Patil that he would take action against him if he did not go to the police station to file complaint. He submitted that this statement and the cross-examination of this witness clearly indicates that the complaint was lodged at the instance of PW5 who had compelled the parents of the victim girls to file the complaint. He, therefore, submitted that the appellant was, therefore, entitled to be released on bail and submitted that no injury was caused to the victim girls and under these circumstances, the order of the trial court was liable to be set aside. 6. Shri Adsule, learned APP for the State, on the other hand, submitted that there was no reason for the two girls of 8 years of age to make a false statement - 8 - against the appellant. He submitted that though some improvements may have been made by these two victim girls, there evidence was not shaken in the cross-examination and on the evidence of these two girls alone, the appellant was liable to be convicted. He submitted that however, the statements of these two victim girls were sufficiently corroborated by other witnesses. He, therefore, submitted that therefore, no case was made out in interfering with the order passed by the trial court. 7. Since the bail was not granted by this Court to the appellant, this appeal immediately was taken up for hearing so that the appellant would avail of his statutory right of appeal. The record and proceedings have been received and the appellant’s Counsel also prepared compilation of evidence. 8. Both the Counsel have taken me through the deposition of the witnesses and the evidence on record. I am satisfied that no case is made out in interfering with the judgment and order passed by the trial court. PW1 Sarika Godalkar was examined by the court and the court came to the conclusion that the witness does not - 9 - understand the significance of oath and the oath was not offered. She has stated in her evidence that she was in the 2nd standard and was attending the school at Babhulwadi and the appellant Bhaskar was her class teacher. She has stated further in her evidence that on the date of the incident, she had been to school alongwith Swati, Shakuntala and Yogita and at 10 a.m. she had reached the classroom. Combined class of 1st to 4th standards were taken by the appellant. Thereafter, she has stated that the appellant asked one student Anil Monitor to stand in the classroom and to write down the names of the students talking in the class. Thereafter, he asked PW1, Yogita, Swati and Shakuntala to go to the other vacant room. There the appellant took the table to one side and asked Shakuntala and Yogita to stand near the door. She has stated further that the appellant told her to remove her pant and when she did not obey him, the appellant himself removed her pant and thereafter, she has stated that the appellant himself removed his pant and underpant. Then he kept PW1 on the table and made her lie down and rubbed her muscles and laid down on her person. When she started weeping, she was made to stand. Then Swati was asked to remove her pant and when she refused to do that, the appellant - 10 - himself removed the pant of Swati. Thereafter, he kept Swati on the table, made her lie down and rubbed her private parts and he also laid down on the person of Swati. When she started weeping, the appellant, he told Yogita to bring one glass of water from pot and Yogita brought glass of water and handed it to the appellant and he washed the dirt on her frock with the water. She has then stated that Yogita and Shakuntala went to her aunt Kalpana and Shakuntala went to the aunt of Swati whose name was Seema. It was further stated that both the Kalpana and Seema came there and started abusing the appellant. The other persons also gathered there and started abusing the appellant. Thereafter, this witness has been cross-examined at length. Though it appears that there are some improvements, the basic testimony of this witness has not been shaken. 9. In the cross-examination, this witness has stated that there is railway track and road in front of the school. She has further stated that her house is at walkable distance of five minutes from the school. She has further admitted that there are about 35-40 students who used to seat in one room. In the cross-examination, the following improvements have been made by this - 11 - witness. The witness has stated that she did not tell the police that the teacher had informed Anil Monitor to note down the names of the students in the class. It appears that the fact that the appellant had taken the table to the wall side was not mentioned in the police statement. Further, it was not stated in the police statement that the slate and pencil was kept on the cupboard. Similarly, it is not mentioned in the police statement that when she was weeping, the appellant made her to stand on the table. It is not also mentioned in the statement that the appellant had rubbed her private parts. It is also not stated that Swati was weeping at that time. Then it is not mentioned to the police that the appellant had told Yogita to bring one glass of water from the pot. Further it is not mentioned that the appellant had rubbed the private part of Swati PW2. Further it is not mentioned that Yogita had brought water in flask and thereafter, dust on frock was washed by the accused. Further, it is not stated to the police that Yogita and Shakuntala had ran to call her aunt Kalpana. She has also not said to the police that Shakuntala went to meet Seema who is the aunt of other victim girl. Further, it is not mentioned to the police that Kalpana and Seema had come to the school and had - 12 - abused the appellant. It is not also mentioned to the police that the people had gathered in the school and had abused the appellant. She has stated that when her statement was recorded, it was not read over to her. Further she has stated in the cross that when her pant was removed, she had made an attempt to run away and had also raised shouts and immediately, Swati had raised shouts and at that time, boys and girls had gathered there in the class. She has further stated that when her pant was removed, Yogita and Shakuntala did not raise any shout and did not call any other student from other class. The other suggestions made by the defence Counsel has been denied by the girls. 10. It is no doubt true that some improvements have been made by this witness and some statements have been made before the court which do not find place in the statement. However, it has to be noted here that there are no major contradictions or omissions in the statement which has been made by them either to the police or before the court. Therefore, merely because some improvements have been made to this witness, there is no reason to disbelieve the testimony of this witness. What has to be seen while appreciating the - 13 - evidence on record is whether the improvements which have been made are of substantial nature which would have the effect of nullifying the original statement made by the witness to the police. By way of illustration, it can be stated that if the witness states before the police that the incident takes place at 10 O’Clock in the morning and before the Court, it is stated that the incident had taken place at 10 O’Clock in the night, that would be an improvement in the testimony and contradiction which would create a doubt about the veracity of this witness. A mere change in the sequence of events which is of a minor nature would not create a doubt about the veracity of this witness. PW1 who is a young girl studying in the 2nd standard had given details in her statement that the appellant had committed the act of molestation and the molestation of other girl PW2. This evidence has not been shaken though PW1 had been examined at length. The submission made by Shri Shinde, learned Counsel appearing on behalf of the appellant that on account of these improvements by this witness the said evidence has to be discarded, cannot be accepted. 11. The evidence of this witness has been fully - 14 - corroborated by the other witness who was molested by the appellant in the presence of this witness. PW2 has also given the same sequence of events. Again in cross-examination, several such minor improvements which have been made by PW2 have been brought on record and it was strenuously urged that on account of these inconsistencies in the statements of these two witnesses and the improvements made by them, their evidence was liable to be discarded. This submission cannot be accepted. PW1 and PW2 have given graphic details of the incident and they have corroborated each other’s case. The submission made by the learned Counsel for the appellant that the incident, in question would not have taken place as narrated by PW1 and PW2 because it had taken place in the crowded locality and that the other students were present in the next class and 2 students Yogita and Shakuntala were waiting outside the door and that it was improbable that the appellant could have committed the said offence in broad daylight in such a crowded locality and that too in the presence of the two girls at the same time. This submission also cannot be accepted. It is not possible to fathom the mind of the accused in such cases. What has to be seen by the Court is the evidence on record. In the presence case, the - 15 - appellant who was a class teacher of victim girls had complete control over his students and possibly the appellant must have been emboldened by previous attempts which were made by him which have been brought on record by the other witnesses. One of the victim girls was not sent to the school for a period of 15 days because the appellant had misbehaved with her on the earlier occasion also. Therefore, it is possible that having been emboldened by the previous attempts and being over confident, he may have attempted to commit the said offence. Possibly, the appellant would have been successful even this time because though the complaints were filed by the parents of the two girls, no FIR was lodged by the police patil for a period of 9 to 10 days and only when PW5 stated to the police party that he would make a complaint against him, only thereafter the complaint was lodged after a lapse of 10 days. The parents of the girls were also afraid to lodge the complaint since it would tarnish the names of the girls and it would have been an impediment in their life which would have come in the way of their marriage. The Apex court has in umpteen number of cases held that delay which is caused on account of these reasons is sufficient explanation for delay caused in filing the - 16 - complaint. Taking into consideration this fact, therefore, it cannot be said that the incident in question that it was improbable that the appellant would not have dared to commit the said offence in broad daylight in the presence of two girls at the same time. In my view, therefore, on account of the statements of girls PW1 and PW2 corroborated each other, the prosecution has proved beyond reasonable doubt that the appellant has committed offence under section 354. Apart from this witness, the prosecution has also examined PW3 Yogita Godalkar who was asked to stand outside the room by the appellant. This witness has also corroborated the testimony of PW1. 12. The learned Counsel for the appellant has stated that the accused had removed the dust from the frock of Sarika and thereafter, she had gone to call aunt of Sarika. He stated here also some improvements have been made by the witness. 13. It is not possible to accept this submission as PW1 and PW2 have been examined thoroughly. The prosecution has also examined PW4 father of PW1 Sarika who has corroborated the version. He has stated that - 17 - his father informed him about the incident which had taken place in the school. PW5 Gangadhar Laxmanrao Aushikar has stated that he was informed by one Shivaji Jadhav about the incident in the school, he, therefore, interrogated the parents of both the girls and also interrogated the victim girls and informed the police patil to lodge the report. The learned Counsel for the appellant has submitted that from the evidence of this witness, it is apparent that he had tutored two girls and also the parents of the girls and he was informed by one stranger. It was submitted that there was no reason why this witness should take undue interest in lodging the complaint against the appellant. He submitted that at his instance, therefore, FIR has been filed. This submission also cannot be accepted. In my view, this is one of the most natural thing for any person after having learnt about the molestation of the young girls by their teacher. Apart from examining the other police witnesses, the prosecution has also examined Kalpanabai Balu Godalkar PW8 who is the aunt of PW1 Sarika. It was submitted vehemently that even this witness made number of improvements in her statement. It was submitted that there was discrepancy about the incident of the teacher to splash water on the frock of Sarika as narrated by - 18 - her and by the two witnesses. In my view, the said improvements are of very minor nature and do not affect the testimony. She has corroborated that she was called by Yogita after the incident. The prosecution has also examined PW9 Mahadu Salu Bodhalkar who was grandfather of PW1 Sarika. Taking an overall view of the matter, therefore, it is not possible to accept the submission made by the Counsel for the appellant. The trial court after going through the entire evidence on record have acquitted the appellant for the offence punishable under Section 376 and 511 of the IPC and has correctly come to the conclusion that he has committed an offence punishable under Section 354 of the IPC. No case is, therefore, made out by the appellant for interfering with the order passed by the trial court. 14. The appeal, therefore, is dismissed. The judgment and order of the trial court is confirmed. In view of the disposal of the appeal, Criminal Application does not survive and it is disposed of accordingly. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)