Full Judgment Text
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CASE NO.:
Appeal (crl.) 1513 of 2004
PETITIONER:
Pandurang Sitaram Bhagwat
RESPONDENT:
State of Maharashtra
DATE OF JUDGMENT: 17/12/2004
BENCH:
N. Santosh Hegde & S.B. Sinha
JUDGMENT:
J U D G M E N T
[Arising out of SLP (Crl.) No. 2177 of 2004]
S.B. SINHA, J :
Leave granted.
This appeal is directed against the judgment and order dated
27.01.2004 passed by the High Court of Bombay in Criminal Revision
Application No.219 of 1996, whereby and whereunder the revision
application filed by the Appellant herein was dismissed ex parte.
The Appellant herein is a Constable in the State Reserve Police. He
was charged for alleged commission of an offence punishable under
Sections 354, 323, 504, 506 read with Section 34 of the Indian Penal Code.
One Dilip Phadtare was a monthly tenant under the Appellant in one of the
rooms in his house situated at Sarpanch Vasti, Dund. It is not in dispute
that quarrels used to ensue between other tenants on the one hand and the
said Dilip Phadtare and his wife on the other. It is also not in dispute that
the Appellant had asked Dilip to vacate the tenanted premises. He was also
said to have in search of other premises.
His wife Alka Dilip Phadtare is the complainant. On 10.04.1993, at
about 5.15 p.m., the Appellant is said to have entered into the said tenanted
premises, when Alka (PW-2) was watching a movie in the television with
her sons Shivaji and Amol. He enquired about her husband. Alka (PW-2)
told him that he was not at home. He thereupon allegedly entered into the
room, closed the door and outraged her modesty by embracing her from
backside and touched her breasts. At that time PW-3, Dilip came back and
found Alka abusing the Appellant. On his questioning as to what had
happened; he was assaulted by fists and kicks. The other three accused
thereafter also allegedly came there and assaulted both of them. Dilip
allegedly was also assaulted with stones and bricks.
The Appellant and the other three accused persons stood their trial for
commission of offences punishable under Sections 354, 323, 504, 506 read
with Section 34 IPC on the basis of a first information report lodged by PW-
2 in relation to the aforementioned alleged incident.
The prosecution besides the informant (PW-2) also examined her
husband (PW-3) and son, Shivaji (PW-4).
The Judicial Magistrate, First Class, Daund, by a judgment and order
dated 25.05.1995 disbelieved the story as disclosed in the First Information
Report as regard threatening given to her husband, Dilip (PW-3), on the
premise that no such allegation was made in her earlier statement. The
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court also disbelieved the allegation that Alka and her husband were abused
by the accused persons. It furthermore negatived the case of the prosecution
that the accused persons voluntarily caused hurt to Alka and her husband.
The accused persons were, therefore, acquitted of the charges for
commission of the offences punishable under Sections 323, 504, 506 read
with Section 34 of the Code. However, the Appellant alone was found
guilty of commission of the offence of outraging modesty of Alka by the
learned Magistrate holding :
"As regards the submission of probability of false
implicating of the accused, I find it difficult to
digest that a woman will prefer to put her character
at streak only in order to take revenge or in order
to implicate the accused falsely, particularly when
her husband serves in police department. Alka
and her husband could have easily made false
charge of house trespass, causing of hurt etc. to
lodge prosecution and it was not necessary for
them to put to streak character of Alka by making
false accusations of outraging of modesty by the
accused No.1\005"
On the aforementioned finding, the Appellant was convicted under
Section 354 IPC and sentenced to suffer R.I. of three months and also to pay
a fine of Rs.1,000/-. A sum of Rs.500/- was directed to be paid to the
complainant Alka by way of compensation, out of the aforementioned
amount of fine. The Appellant preferred an appeal thereagainst. By reason
of a judgment and order dated 31.08.1996 passed in Criminal Appeal No.10
of 1995, the Additional Sessions Judge, Baramati, dismissed the said
appeal. The learned Appellate Court noticed the discrepancy in the
evidences of PW-2 and her son Shvaji as regard the manner of occurrence
but maintained the judgment of conviction and sentenced passed by the Trial
Judge, stating :
"\005There was nobody to watch the said incident.
No doubt, the other incident of beating, abusing by
appellant and his other relatives to Alka and her
husband took place outside the house but main
incident of outraging modesty of the woman having
taken place in the drawing hall itself, there was no
person, who could see the incident and therefore,
non-examination of independent witness from the
neighborhood of Alka and her husband, cannot be
said to be a minus point for the prosecution. A
minor discrepancy has been occurred in the evidence
of mother and son. Shivaji testified that when
mother was going towards kitchen and was in
standing position, her breasts were caught by the
accused, coming behind her, whereas Alka stated
that her breast were caught, when she was watching
T.V. However, this discrepancy is very minor in
nature, if a woman is assaulted in this fashion. The
very next moment, she would stand up and would
not continue to sit in the same position before she
was criminally assaulted. So, if natural one and it
cannot shake credibility of either of the witnesses to
the occurrence."
A Revision Application filed by the Appellant was dismissed by the
High Court in terms of the impugned judgment holding that both the courts
below have appreciated the evidence on record and on appreciation found
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the accused guilty and there was no error of law committed by any of the
Court.
It is not in dispute that the High Court passed the said judgment in
absence of the counsel for the Appellant.
Mr Jadhav, the learned counsel appearing on behalf of the Appellant,
would submit that the High Court committed a manifest error in passing the
impugned judgment, insofar as it failed to consider the merit of the matter.
Had the merit of the matter been gone into by the High Court, the learned
counsel would contend, the Appellant could have shown that he had been
falsely implicated owing to dispute between him as the landlord and Dilip as
the tenant.
The learned counsel appearing on behalf of the Respondent, however,
supported the judgment of the courts below.
Keeping in view the nature of the case, we are of the opinion that the
matter should be finally disposed of by this Court upon consideration of the
materials on record.
The strained relationship between the parties is not in dispute. If the
contention of the first informant and her husband to the effect that they had
already taken a decision to shift from the said premises is believed, there
does not appear to be a plausible reason as to why the Appellant and three
other accused would trespass into the house and assault them. Some
photographs showing the injuries of PW-2 and PW-3 were produced before
the Court, but no reliance thereupon was placed by the learned Trial Judge.
The Trial Judge, as noticed hereinbefore, disbelieved the prosecution
case as regard: (i) threatening of the first informant and her husband by the
accused persons, (ii) hurling abuses to them, and (iii) assaulting them by
bricks and stones. No independent witness has been examined and the
witnesses of the Punchnama were also said to have been declared hostile.
The approach of the learned Trial Judge as noticed supra that
ordinarily a lady would not "put her character at stake" may not be wrong
but cannot be applied universally. Each case has to be determined on the
touchstone of the factual matrix thereof. The law reports are replete with
decisions where charges under Sections 376 and 354 of IPC have been found
to have been falsely advanced.
In this case, allegation of house trespass was made but for reasons
best known to the investigating agency no specific charge in relation thereto
was made.
Charges for causing hurt, along with other charges as noticed
hereinbefore were specifically disbelieved.
The charges of making false allegations by Alka at the instance of her
husband, who is working in the police department cannot be totally brushed
aside. No case was also made out that the incident of threatening, abusing or
beating took place outside the house of the Appellant.
We are not oblivious that the doctrine ’falsus in uno, falsus in
omnibus’ is not applicable in India but the evidence led by the parties must
be appreciated keeping in view the entirety of the situation. The Trial
Judge, as noticed hereinbefore, came to the conclusion that most of the
statements made by PW-2 and PW-3 were incorrect and no reliance could be
placed thereon. The statements of the said witnesses with regard to
commission of an offence by the Appellant under Section 354 IPC should
have been considered keeping in view the extent of falsity in their
statements. PW-2 and PW-3 not only failed to substantiate the allegations as
regard commission of offences under Sections 323, 504, 506 read with
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Section 34 IPC but also implicated the three persons falsely. The
statements of the said witnesses should have been accepted with a pinch of
salt and keeping in view the admitted animosity between the parties. The
background of the case vis-‘-vis continuous animosity between the
complainant and her husband, on the one hand, as also and the Appellant and
his other tenants could not have been lost sight of by the learned Trial Judge.
The exact place of occurrence and the manner in which the purported
offence of outraging the modesty was committed by the Appellant,
furthermore, materially differ. Whereas PW-2 asserted that the Appellant
came inside the house and embraced her from the back, when she was
watching T.V. sitting; PW-4 stated that the incident took place when she was
proceeding towards the kitchen. The observations made by the learned
appellate court is based on surmises and conjectures. The said discrepancy
even if ordinarily could not have been the basis of passing a judgment of
acquittal, but in this case, as noticed hereinbefore, the conduct of both PW-2
and PW-3 being suspect, it would not be safe to rely on a part of their
statements as prosecution witnesses.
The High Court, in our considered opinion, should not have refused to
exercise its revisional jurisdiction on the ground that no question of law had
arisen therein inasmuch as in terms of Section 397 of the Code of Criminal
Procedure, the correctness, legality or propriety of any finding, sentence or
order may fall for consideration of the Revisional Court and in particular
having regard to the fact that the prosecution case should have been tested
from the angle that the Trial Judge had acquitted all the three accused
persons who are said to have shared a common intention with the Appellant
not only in relation to the offences under Sections 323, 504 and 506 of the
Indian Penal Code but also in relation to the offence committed by the
Appellant under Section 354 thereof.
We, therefore, are of the opinion that having regard to the totality of
the fact and circumstances of the case, the Appellant is entitled to be given
the benefit of doubt.
For the reasons aforementioned, this Appeal is allowed, the impugned
judgment is set aside and the Appellant is discharged from the bail bond.