1 Cri.Appeal No.445/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.445 OF 2010. Mukesh s/o Parma Pawar Age: 20 Yrs., occu. Porter, R/o Laxminagar, Near Hanuman Temple Gendalal Mill, Jalgaon. - APPELLANT VERSUS The State of Maharashtra - RESPONDENT ***** Mr.Rajendra Sanap, (appointed) Advocate for Appellant; Mr.NB Patil APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 12th January, 2011. ORAL JUDGMENT: 1) Heard learned Counsel for appellant and learned APP. The appeal is admitted on 22nd October, 2010. 2) The appellant questions conviction 2 Cri.Appeal No.445/2010 recoded for an offence under Section 363 of Indian Penal Code in Sessions Case No.50/2010 by the learned District Judge-5 & Additional Session Judge, Jalgaon, thereby convicting the accused/appellant and directing him to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/-. 3) The prosecution case proceeds, on a report of Dipak Bhimrao Kamble, father of minor – Rani, aged 3 years. On 22.12.2009, Rani was playing in the court yard with other girls. Her parents could not keep track of her movements. At around 10.15 hrs., Gopal Pawar (PW 4) approached him and informed that, a boy (accused) had kidnapped Rani and carried her in the bushes. It was also informed, that the culprit is nabbed and under control of Vijay Pawar and Dhanraj Sapkale. Consequent upon such communication, the bittered dismal father – Dipak, with his relations, rushed to the spot, he found his weeping daughter – Rani. Rani conveyed him pointing Accused, under the pretext of offering a biscuit, he enticed her and brought her to the said place. The other witnesses narrated him how they up the accused and the girl in the commotion. This gave rise to First Information Report against the accused/appellant. 3 Cri.Appeal No.445/2010 4) Since the accused/appellant was apprehended and nabbed at the spot itself, there was no question of any mis-match of identity. The offence under Sections 363 and 366-A was registered against the accused. The charge (below Exh.2) was explained to the accused. 5) In order to establish the charge, the prosecution has put in eight witnesses; PW 1 -Vijay Pawar; PW 2- Vinod Wankhede; PW 3 – Dipak Kamble; PW 4 – Gopal Pawar; PW 5 – Chandrakant Patil, who carried measurement and gave the distance; PW 6 – Siddharth Chaudhari. He did not support the prosecution; PW 7 – Vandana Kamble, mother of the victim. She narrated about the events that have taken place on the day of incident and PW 8 – PSI Sardarsing Thakur, who carried the investigation and a member of the police party. 6) Learned Counsel for the accused/appellant submits, that the evidence of PW 1 – Vijay or PW 2 and PW 4, being of chance witnesses should not be taken into consideration. According to him, there is vacuum in their depositions, which is full of inconsistency and consequently, its benefit should be showered upon the accused/appellant. 4 Cri.Appeal No.445/2010 7) The counsel submits, the law on the point of appreciation of evidence of chance witness, being demonstrated by the reported judgments, its benefit should be extended to the accused. To substantiate his contention, he has placed reliance to the following judgments, - a) 2005 (1) Bom,.C.R.(Cri.) 86 – Shankarlal Vs. State of Rajasthan and Ors.; b) 2007 (1) Bom.C.R.(Cri.) 369 - Mangesh @ Balya Pralhad Bitode and Ors. Vs. State of Maharahstra;( para 8 thereof) c) 2009 DGLS (Cri.) 1874 – Bhupen Bora Vs State of Assam; (para 14 thereof); d) 2002 DGLS (Cri.) 1039: equivalent citation – 2002 Cr.R. 0573 (Andhra Pradesh High Court) – Pullareddigari Venkaataramana Reddi and Anr. Vs. The State of A.P., relating to inconsistency in the evidence regarding altercation before the incident. 8) In the matter of Shankarlal Vs. State of Rajasthan, the Hon’ble Lordships of the Apex Court, did not believe the sole eye-witness as the Apex Court, on evaluation of the evidence, found that he was a got-up witness and could not explain his presence. The Hon’ble Lordships observed that, since PW 6 was purely a chance witness, whose presence at the place of the incident was found highly doubtful. His conduct 5 Cri.Appeal No.445/2010 too was seen unnatural in not informing anyone else in the village until he met Khyali Ram at the village square that too for a considerable period of 5-6 days. 9) In the matter of Mangesh @ Balya, the Division Bench of this Court did not believe the evidence of two eye-witnesses, who were chance witnesses as they did not disclose the facts to anybody for over a period of six days after the incident. 10) In the matter of Bhupen Bora (Gauhati High Court) the Court did not believe evidence of chance witness PW 4 as he did not inspire confidence. The Court has observed that the evidence of solitary witness must be truthful and worthy of credit, conviction could not be solely on testimony of such solitary witness. 11) In the matter of Pullareddigari (Andhra Pradesh High Court ), the learned Judge considered the evidence, since inconsistencies were writ-large, did not believe the chance witness. 12) On scanning the evidence of PW 1 – Vijay Pawar and PW 4 – Gopal Pawar, I find that their narration cannot be doubted as to its credit- 6 Cri.Appeal No.445/2010 worthiness and, therefore, there does not seem to be any spices added by over-reacting to the situation. PW 1 informed that before five months, it was around 10.00 a.m., he noticed the accused with the girl of three years, with a packet in her hand. The accused was asked as to what is his relation with the girl, he informed the girl to be his niece and since there was commotion, people gathered and by time time the accused gave his incorrect name. Gopal Pawar (PW 4), who was in the melee, dismissed claim of Accused as he knew the victim – Rani and consequently, he rushed to call her parents. The conduct of PW 4 – Gopal in rushing to carry parents of the girl was in natural sequence and cannot be doubted. Since commotion triggered and Gopal had been to the area for answering nature’s call, his presence is but natural and cannot be branded to be a chance witness or a got-up witness. 13) On analyzing the evidence, I find that Gopal was honest to his narration, as reflected in police statement and as per the events. He was suggested, he did not saw the victim/girl or the accused and there was a false implication of the accused. However, there is nothing to demonstrate any animus or any vendetta in the mind of either parents or the victim or of PW 4. 7 Cri.Appeal No.445/2010 14) PW 7 – Vandana Kamble, mother of the victim, could not be expected to narrate the events at the spot as they were indeed notice by PW 4 in material particulars. She went with her husband on a communication by PW 4 and found her daughter Rani with the accused. PW 7 is an illiterate lady, her husband is doing casual painting work and playing music instrument at the time of marriages. They reside in hutmate, near the railway yard track. Precision of expression and explanation is not expected, either from PW 7 Vandana; or her husband PW 3 – Dipak Kamble. Consequently, the doubt that has been expressed by the learned Counsel for the accused/appellant, calls no consideration. PW 1 and PW 4 in unmistakable terms gave correct account of the events that took place having seen the accused with the girl, whose identity was made clear by PW 4 - Gopal. 15) The learned Counsel further submits that there is no evidence that the accused carried the girl/victim during day time from her father’s house. However, that by itself would not mitigate the facts deposed by PW 1 and PW 4, noticing the accused with the minor girl Rani, that too, without any reason or occasion. The accused was not master of the minor girl. He had no authority to have control and command over the 8 Cri.Appeal No.445/2010 minor girl. The accused enticed and allured the victim by offering her biscuit and carried her. The intention of the accused also matters. He may have in his mind several distraught either to sexual abuse the victim or to have any other illegal activities. 16) The paramount aspect in the matter is, the accused, without any authority, vested in him, kidnapped the minor girl/victim from the lawful guardianship of her parents. Age of the victim being of three years. The provisions of Section 361 of IPC mandates for taking action in terms of Section 363. Age of the girl should be below 18 years. The area of company where the accused was found with the girl was a secluded place, the residents were moving either for answering nature’s calls or using the nearby space as a bye-pass. The accused could not, in his statement under Section 313 of Cr.P.C. explain as to what made him to carry the minor girl with him, without any authority. That apart, the conduct of the accused also does not prove his innocence. Sheer denial by the accused of there being any past acquaintance and any false implication, there should not be any doubt in the narration of the witnesses. The prosecution has on the strength of the evidence, referred to above, proved the charge against the 9 Cri.Appeal No.445/2010 accused/appellant in material terms. The learned Sessions Judge has acquitted the accused of the charge under Section 363-A of IPC and consequently reference to paragraph 19 of the judgment carried by the learned Advocate for the appellant is of little consequence. 17) The victim had no capacity and capability to understand the events in the world, she was removed from the lawful custody of her parents. The order under challenge, recording conviction in terms of Section 363 of IPC in the manner indicated herein above, does not require any interference. No leniency can be shown to the accused/appellant, even if he is informed to be 20 years at the material time. The appeal lacks merit, dismissed. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/ Authenticated copy (BD VADNERE,PS)