BHIMRAO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The accused, who has been convicted of the offences punishable under Sec. 354 and 448 of the Indian Penal Code, has impugned the judgments and orders of the learned Judicial Magistrate First Class, Pathari, District Parbhani passed in Regular Criminal Case No. 60 of 2003 dtd. 17/5/2005 and confirmed by the learned Additional Sessions Judge Gangakhed in Criminal Appeal No. 4 of 2005, dtd. 31/1/2006, under Sec. 397 read with Sec. 401 of the Criminal Procedure Code.

(2.) The facts giving rise to the case are that the accused and the husband of the prosecutrix were carpenters and residing in the same village. It has been alleged against the accused that on 18/2/2001, at about 9.00 p.m., he went to the house of the prosecutrix to demand 'Kikara" (a carpenter's tool). That time, the prosecutrix was alone at home, and her children were sleeping. When she went to bring Kikra, suddenly, the applicant caught and pressed her breast from behind. When she screamed, her husband, who went to the house of P.W. No.2 to watch the Television, came with P.W. No.2 and 3 on the spot of the incident. They saw the accused running from her house. The accused was prosecuted and held guilty for the offences punishable under Ss. 354 and 448 of the Indian Penal Code.

(3.) The learned counsel for the accused has vehemently argued that both the Courts have erroneously discarded the plea of inordinate delay in lodging the report and its unsatisfactory explanation. She has also vehemently argued that both the Courts have erred in law in assigning the reasons that it was a short delay; hence, it is liable to be condoned on its own. The law on delay in lodging the first information report has been misconstrued. The Courts have no jurisdiction to condone the delay on their own. The prompt first information report has its importance. The delay in lodging the first information report raises suspicion over the truthfulness of the accusations. Both the Courts have erroneously applied the ratio laid down in the case laws placed before them. She further argued that the presence of the other witnesses was also improbable. However, both the Courts have discarded these material circumstances. She further argued that on the one hand, the learned Judicial Magistrate accepted the threat to kill the victim as a satisfactory explanation and, on the other hand, disbelieving the threat given by the applicant, acquitted the accused for the offences punishable under Ss. 506(ii) of the Indian Penal Code. The learned Additional Sessions Judge also did not consider the legal ground raised before him about the ingredients of the threats and did not consider the contrary findings recorded by the learned Magistrate on threats given to kill the prosecutrix. The learned Additional Sessions Judge has erroneously applied the ratio laid down in the case of Azeez Osman Shaikh Vs. State of Maharashtra 1999 (3) Mh. L.J. 272. He has also erroneously held that a short delay would not come in the way of the prosecution.