Bombay High Court
Shantaram Nilkantha Meshram vs State Of Maharashtra on 31 July, 2001
Equivalent citations: 2002 BomCR Cri, (2002) 1 BOMLR 647, 2002 (1) MhLj 260
Bench: R Batta
JUDGMENT
1. The applicant challenges concurrent findings of two courts below in this revision. The applicant was tried and held guilty ,for the offence under Section 354 of the Indian Penal Code and sentenced to undergo simple imprisonment for three months and pay fine of Rs. 300/-, in default, to suffer further simple imprisonment for fifteen days.
2. The prosecution case, in brief, is that the applicant came from behind and caught the breasts of the prosecutrix. The courts below have believed the prosecution case.
3. Learned Advocate for the applicant urged before me that there are contradictions in evidence whether the prosecutrix knew the applicant inasmuch as she first stated that she was knowing the applicant/accused before the incident, then stated that she knew the applicant by face and ultimately stated that she knew him by name. It is also urged by learned Advocate for applicant that though she stated that she was weeping and narrating the incident while going to the house of applicant/accused in order to complain to his father, she had met number of persons to whom she had narrated the incident, but no such witnesses have been examined. Learned Advocate for the applicant, therefore, urged that the version of the prosecutrix could not be believed and the Courts below have erred in convicting the applicant. Alternatively, he prayed that the applicant be released on probation
and in support of his submission, learned Advocate for applicant placed reliance on Naib Singh v. The State of Punjab, 1980 CLR (P&H) 29, Tppili Trinadha Rao v. State of Andhra Pradesh, 1984 Cri.LJ 1254, Panchu Parida v. State of Orissa, 1993 Cri.LJ 953 and Dilip Ramchandra Umare v. State of Maharashtra, 1996 Mh.L.J. 1004 = 1996 Cri.LJ 72. Alternative to this submission, it was further urged that the applicant was in custody/jail for a period of nine days which period should be considered as sufficient substantive sentence and fine imposed may be increased.
4. Learned APP, on the other hand, urged before me that in view of the concurrent findings of facts, there is no reason to interfere in the exercise of revisional jurisdiction of this Court and he urged that the revision be dismissed.
5. It is now well settled that in the exercise of revisional jurisdiction under Section 397, Criminal Procedure Code, the revisional Court does not re-appreciate or reappraise evidence and findings of fact recorded by the two courts below can be interfered with only when such findings are perverse or based on no evidence or suffer from any error of law learned Advocate for applicant is not able to satisfy me that the concurrent findings of fact recorded by the two courts below suffer from any such infirmity. Even though much was sought to be made out on the fact that the prosecutrix had made wavering statements as to whether she knew the applicant/accused or not, yet if the statement of applicant/accused under Section 313, Criminal Procedure Code is seen, the applicant/accused himself has stated that the prosecutrix knew him from before. Even otherwise, this cannot be treated as material contradiction which goes to the root so as to discredit the testimony of the prosecutrix. On the question of the act of outraging modesty, the prosecutrix was cross-examined, but could not be shaken during her cross-examination. She stated that she did not see the accused coming towards her; he all of a sudden came from behind and she could not rescue herself from the clutches of the accused. She was candid enough to state that she could not tell as to what was the intention of the accused behind this act of catching herself from bade side and pressing her breast. However, the intention is crystal clear, viz. outraging the modesty of the prosecutrix. Therefore, J am of the opinion that the findings of the two courts below and the accused having been found guilty for the offence under Section 354 of the Indian Penal Code do not call for any interference whatsoever.
6. Coming to the question of release of the applicant on probation, I do not consider this to be a fit case for releasing the applicant on probation keeping in view the act of outraging the modesty of the prosecutrix by pressing her breast. Even the Andhra Pradesh High Court in Tppili Trinadha Rao v. State of Andhra Pradesh (supra) has observed :--
"The Court would be slow if not loathe to extent the benefit of the provisions of the Act in respect of offences committed on women viz.
under Section 354 of the Code. If the beneficial provision of the Act is extended to the offenders like one punishable under Section 354, Indian Penal Code for outraging the modesty of a teen-aged girl and of like offences on women, would not only encourage further escalation of the crime, but also would become difficult to check or arrest the preparation of those crimes and imperil the modesty of several innocent girls. Under those circumstances, the court has to be circumspect in extending the beneficial provision to the offences committed on the weaker section, viz. Women."
7. Even in the aforesaid case and in the case before the Orissa High Court, viz, Panchu Parida v. State of Orissa (supra), the accused were not released on probation, but instead of sending them to jail, they were made to sit in the Court of the Magistrate for certain period. Nevertheless, it is a matter of fact that the applicant/accused was in custody pending trial for one day from 19-3-1993 to 20-3-1993 and he was in jail for eight days with effect from 5-11-1998 to 12-11-1998 after his appeal was dismissed by the Sessions Judge and before he was released on bail in this revision. This means that the applicant had been in custody for about nine days which, in the circumstances of the case, in my opinion, can be considered as substantive sentence, but at the same time, it is necessary to increase the fine imposed on the applicant.
8. In view of the above, revision is partly allowed. Conviction of the applicant for the offence under Section 354 of the Indian Penal Code is maintained. The substantive sentence is reduced to already undergone during which period the applicant/accused was in custody pending trial and pending hearing of revision and the fine is enhanced from Rs. 300/- to Rs. 2,500/-. In default of payment of fine, the applicant shall undergo simple imprisonment for one month. Learned Advocate for applicant states that the applicant has already deposited fine amount of Rs. 300/-. The applicant shall, therefore, deposit balance amount of fine within a period of six weeks from today and file compliance of payment of fine in this Court after six weeks. Revision stands disposed of in aforesaid terms.
9. Revision partly allowed.
