CRI. APPEAL NO.13.02.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.13 OF 2002
Dadarao s/o Nathuji Gote,
Aged about 40 years,
R/o. Gandhi Nagar, Wardha,
Tahsil and District-Wardha. .. APPELLANT
.. VERSUS ..
State of Maharashtra,
Through the P.S.O.
City Police Station, Wardha. .. RESPONDENT
..........
Shri R.M. Patwardhan, Advocate for Appellant,
Shri I.J. Damle, APP for Respondent-State.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : APRIL 13, 2017.
ORAL JUDGMENT This appeal takes an exception to the judgment and order dated 18.12.2001 passed by the learned Ad-hoc Special Judge, Wardha in Special Case No.2/1998 thereby convicting the sole accused of the offence punishable under section 354 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for one year and fine of ::: Uploaded on - 19/04/2017 ::: Downloaded on - 20/04/2017 00:14:39 ::: CRI. APPEAL NO.13.02.odt 2 Rs.300/- in-default rigorous imprisonment for one month. 2] Prosecution case which can be revealed from the chargesheet and connecting papers thereto may be stated in brief as under :
(a) Complainant Anita Fulmali, aged about 23 years, was resident of Station Fail, Wardha.
She was serving as Home-Guard. On 1.4.1995 at around 6.30 pm, she along with her sister Rajani and friend Padma was proceeding towards her house from Mahavir Photo Studio. When they reached near Wardha Bus Stand, accused came from opposite direction and pressed her breast by one hand. He was caught hold by complainant, her sister and friend. He was brought to Wardha Police Station. Complainant lodged report.
(b) Crime No.162/1995 was registered against the accused for the offence under Sections 354 of the Indian Penal Code and 3(1)(x) of the Scheduled Castes and the Scheduled ::: Uploaded on - 19/04/2017 ::: Downloaded on - 20/04/2017 00:14:39 ::: CRI. APPEAL NO.13.02.odt 3 Tribes (Prevention of Atrocities) Act, 1989. Investigation was taken over by PSI Baliram Daberao. He recorded spot panchanama in the presence of panch witnesses and handed over further investigation to ASI Vasant Borle.
(c) Investigating Officer recorded statements of witnesses. Caste certificate of complainant was collected. It was found that she belonged to 'Mahar' caste. On completion of investigation, chargesheet was submitted to the learned Chief Judicial Magistrate, Wardha, who in turn, committed the case for trial to the Court of Sessions.
3] On committal, Sessions Court framed the charge against the accused vide Exh.11. He pleaded not guilty and claimed to be tried. His defence was of total denial and false implication. He submitted that due to misunderstanding and mis-identity, report came to be lodged against him. His post conduct in accompanying the complainant to Police Station speaks of his innocence. ::: Uploaded on - 19/04/2017 ::: Downloaded on - 20/04/2017 00:14:39 ::: CRI. APPEAL NO.13.02.odt 4 4] Prosecution examined in all four witnesses in support of its case. Considering the evidence of prosecution witnesses and submissions made on behalf of the parties, trial court came to the conclusion that offence under section 354 of the Indian Penal Code was made out against the accused and convicted and sentenced him as stated above. For the offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, accused was found not guilty and was acquitted.
5] Heard Shri Patwardhan, learned counsel for the appellant and Shri Damle, learned Additional Public Prosecutor for the respondent-State. With the assistance of the learned counsel for the parties, this court has gone through the evidence of prosecution witnesses. 6] On meticulous evaluation and close scrutiny of the evidence of star witnesses, this court, for below mentioned reasons, is of the view that offence under section 354 of the Indian Penal Code is not proved beyond reasonable doubt against the accused/appellant.
::: Uploaded on - 19/04/2017 ::: Downloaded on - 20/04/2017 00:14:39 ::: CRI. APPEAL NO.13.02.odt 5 7] PW-4 Anita Fulmali is complainant. She stated that on 1.4.1995 at about 6.30 pm, she along with her sister and one Padma was proceeding to the house from Mahavir Photo Studio. She states that when they reached in front of S.T. Bus Stand and were on the left side of the road, accused came there and pressed her left breast forcibly. She caught hold him and took him to Police Station. She stated that she lodged report vide Exh.20.
In the cross-examination, complainant admits that there was rush of people in front of S.T. Bus Stand at the relevant time. She admits in unequivocal terms that she did not raise alarm when incident occurred. According to her, persons did not gather on the spot, when she caught hold the accused. She carried the accused inside the Police Station and her sister Rajani and friend Padma stood outside the Police Station. Prosecution did not examine Padma, one of the eyewitness of the incident.
8] PW-1 Rajni is sister of complainant Anita. She supports the version of complainant and further adds that after accused pressed breast of Anita, she slapped him. ::: Uploaded on - 19/04/2017 ::: Downloaded on - 20/04/2017 00:14:39 ::: CRI. APPEAL NO.13.02.odt 6 There is no whisper in the evidence of Anita that she slapped the accused after the occurrence. Like Anita, Rajni also admits in her cross-examination that there was rush of people at the S.T. Stand. Contrary to the evidence of Anita, Rajni says that Anita raised hue and cry at the time of outraging her modesty, but persons did not gather there. Anita in clear terms admits that she did not raise alarm. It has come in the cross-examination of Rajni that accused, on his own accord, accompanied them to Police Station. According to Rajni, Padma did not come with them to Police Station. Anita says that Padma was standing outside. Rajni admitted that accused was saying that he had not outraged the modesty of Anita and he is not aware who was responsible for the act. Accused also disclosed to them that he was serving in police department.
9] The facts elicited in cross-examination of Rajni would indicate the post occurrence conduct of the accused. If really he was guilty, he on his own would not have accompanied the complainant and her sister to Police Station. Moreover the evidence of Anita and Rajni is not consistent on the genesis of the prosecution case. ::: Uploaded on - 19/04/2017 ::: Downloaded on - 20/04/2017 00:14:39 ::: CRI. APPEAL NO.13.02.odt 7 10] In view of inconsistencies brought in the cross- examination of Anita and Rajni, it would be essential to search for independent corroboration to the testimony of complainant. Though it has come on record that the place of occurrence was a crowded place, prosecution did not examine independent witnesses. Padma, an eyewitness to the incident, has been kept away from the witness box for the reasons best known to the prosecution. For want of independent corroboration, it would be risky to rely upon the testimonies of complainant and her sister. 11] In the light of above, this court finds that defence raised by the accused that due to misunderstanding, a report came to be lodged is most probable and acceptable. Hence, impugned judgment and order of conviction and sentence is unsustainable. Accordingly, the following order is passed :
(i) Criminal Appeal No.13 of 2002 is allowed.
(ii) Impugned judgment and order of conviction and sentence dated 18.12.2001 passed by the learned Ad-hoc Special Judge, Wardha in Special Case No.2/1998 is quashed and set aside.
::: Uploaded on - 19/04/2017 ::: Downloaded on - 20/04/2017 00:14:39 ::: CRI. APPEAL NO.13.02.odt 8
(iii) Accused-appellant is acquitted of the offence punishable under Section 354 of the Indian Penal Code.
(iv) His bail bond shall stand cancelled forthwith.
(v) Fine, if paid, shall be refunded to the appellant.
(Kum. Indira Jain, J.) Gulande, PA ::: Uploaded on - 19/04/2017 ::: Downloaded on - 20/04/2017 00:14:39 :::