The State Of Maharashtra vs Satyendra Dayal Khare
2004 Latest Caselaw 466 Bom

JUDGMENT

A.S. Aguiar, J.

1. This is an appeal by the State from the judgment and order dated 27th February 1997, passed by the Learned Metropolitan Magistrate 22nd (sic) Court, Andheri, Bombay, acquitting the accused Satyendra Dayal Khare, of offences punishable under Sections 341, 342 and 354, IPC, on the allegation that on 21-3-1992 between 6 to 7.30 p.m., the accused outraged the modesty of the complainant P.W. 1 Rajyashri Wagharay, in his office at Sahar Airport, Mumbai.

2. Briefly, the case of the prosecution is that the complainant, a probationer of the Indian Customs and Central Excise Service, Group A, was undergoing training while attached to the Bombay Custom House. As part of her training she was required to write a detailed assignment on the topic baggage rules, problems in interpretation, cases of violations, and suggestions for improvement, and for the said purpose she was stationed at the Sahar Airport Collectorate.

3. Since the complainant had completed her training she wanted to say her goodbyes. Accordingly on 21-3-92 at about 3.05 p.m., the complainant went to the office of the Collector of Customs, Sahar Airport and met Mr. Khare who showed concern about her training and enquired about her assignment and also about her choice of posting and other such matters. Mr. Khare particularly enquired about the complainant's awareness of 'Revenue Drive' for the month of March 1992 and asked her whether she had included this in her assignment. Mr. Khare told the complainant that he was going to his office at the Sahar Aircargo complex and asked her to accompany him to learn about The Revenue Drive. The complainant expressed her inability to accompany the respondent as she had to meet the Additional Collector Mr. Rajendra Prasad and other officers to thank them for their help during her assignment and to clear up some doubts about certain cases since it was her last day of work at Sahar Airport. Just then Rajendra Prasad entered the office and Mr. Khare told Rajendra Prasad that the complainant was on her way to see him. Rajendra Prasad asked the complainant to wait in his Office. Accordingly the complainant left and waited in the office of Rajendra Prasad. Within a short while Rajendra Prasad came in. After some discussion on the queries and clarifications sought by the complainant, Rajendra Prasad told the complainant that the respondent had asked him to arrange for a vehicle to take her to Air Cargo Complex. The complainant accordingly went to the Air Cargo Complex in the car provided by Rajendra Prasad and met the respondent Mr. Khare, in his office at the Cargo Complex. There were some other officers with the respondent. They were discussing some departmental matters. After some time the respondent offered to show the complainant the cargo complex. The complainant informed him that she and other probationers had already been to the Air Cargo Complex earlier with Mr. Udaynarayan, one of the officers, who had explained the working of the complex. Soon after the meeting broke up all of them got up to leave. On the way out in the corridor the complainant requested Mr. Khare that she may be permitted to leave. It was about 5.30 p.m., but Mr. Khare told the complainant that he wanted to show her some files at his Sahar Airport office and insisted that she accompany him there to learn about the 'Revenue Drive'. Accordingly the complainant accompanied the respondent in his official car to Sahar Airport office.

4. At the Sahar Airport office the respondent appeared to be pre-occupied with work and did not pay any attention to the complainant nor did he show her the relevant files of Revenue Drive. At about 6 p.m. the complainant again requested the respondent to allow her to leave as she has to go all the way to the Bhandup RTI hostel where she was staying during the training. She told him that it would take her about two hours to reach the hostel. However, the respondent insisted that she should stay on and go through the files as she would not have another opportunity to do so. The Respondent then showed her some files pertaining to corruption cases against some of the officers at the Airport. Shortly 'thereafter he got up and went towards the adjoining room (referred to as anteroom) and asked the complainant to follow him to see a gold-seizure case. The complainant followed the respondent to the ante room where the respondent switched on the video on the gold seizure case. After the short clip was over the complainant got up and told the respondent that she is leaving as it was getting late and she was worried about reaching the hostel. At that time the respondent who was changing the video cassette caught hold of the complainant wrist and told her to sit down to watch the International Customs Day cassette and told her that he would drop at her hostel. When the complainant protested and tried to get up to go out of the room the respondent, snatched her handbag and catching hold of her shoulders pushed her down onto the sofa saying 'seeing a naughty movie will put you in mood'. Then the respondent also got on the sofa and started behaving in a manner that shocked the complainant. Without releasing his grip on her arm, the respondent pulled the complainant closer and brought his arm around her shoulders and kept her pinned down and started groping her and misbehaving with her at the same time telling her that he found her to be irresistible and that since the day he had seen her at the anti-smuggling conference at the Sahar Airport he was trying to possess her but she never gave him a chance. He also told her that he found her to be a mixture of innocence and seriousness and having too much dignity but he found her irresistible. All the while saying this the respondent continued to misbehave with the complainant who struggled and pleaded with the Respondent to let her go. The complainant started shaking and sobbing uncontrollably. The respondent asked her why she was being so difficult while other lady officers (whose names the complainant did not disclose), were so dynamic and obliging. The respondent offered to give the complainant any foreign goods from the disposal section. The respondent further told the complainant he thought that she would know the name of the game..... and further said that he knows that she will not resist him as he had known women from Bangkok to San Francisco'. When the complainant became upset and started demanding that the respondent let her go the respondent told her that he was sick of her. He gripped her shoulders and shook her. This made her to vomit. Respondent told her to 'say yes or no'. The complainant said 'no' and moved to the door to get away, she went out of the door and reached the bottom of the stairs to the exit.

5. The respondent followed her. At that time the official car was already at the exit gate. The complainant tried to get a taxi but the respondent insisted on her getting into his official car and almost propelled her into the car. The complainant told the respondent that she wanted to get out of the car but before she could do so the car was already in motion. Suddenly, the respondent changed appearances and became mild and quietly tried to assuage her feelings. The respondent told her that he would be dropped first at Madh Island and then she would be dropped at Bhandup. She protested and told the respondent to stop the car. By that time the car had reached Lela Kempinski Intersection at which point the driver asked, which way he should go and the complainant told him to stop the car and drop her at that spot itself. But, the respondent told the driver to proceed to Ghatkopar. Within 15 minutes the car reached Ghatkopar station. All the while the respondent tried to hold complainant's hand and explain his behaviour. When she curtly brushed aside his hands the respondent told her that his ego had been hurt, but being a persuasive man he would not give up and would not take 'no' for an answer. When the car reached Ghatkopar station the complainant immediately opened the door to get down but was held back by the respondent. He told her that she must give him a reply whether 'Yes' or 'no' by the next day and he would come personally or send his private vehicle to pick her up from the hostel. He also told her to sleep it over and that she would be in a more accessible mood the next day. The respondent tried to cajole her stating that he was not an ordinary Collector and would see how far she could go in her career in the department. The complainant freed her hand and rushed to the Railway station and caught the first train for Bhandup, where she alighted and almost ran all the way to the hostel.

6. On reaching the third floor of the hostel building, the complainant rushed into the room of her colleague Surjit Bhujbal. It was about 8.45 p.m. She was shaking and shivering and too shocked to speak. She vomited in her colleague's room. Surjit tried to cool her down and repeatedly asked her as to what had happened. After some time she blurted out that the Collector had molested her in his office and she described the incident. Surjit advised calling complainant's husband and accordingly the complainant accompanied Surjit to a PCO from where Surjit made a telephone call to complainant's husband at Hyderabad. The complainant was too overwhelmed and broke down when her husband came on the line. Thereupon, Surjit took over and asked the complainant's husband to come to Bombay immediately. Thereafter they returned to the hostel.

7. The next morning complainant's husband arrived from Hyderabad. At about 8.30 a.m., he contacted the Director General, NACEN Mr. B.V. Kumar, at his residence in Delhi on telephone. The complainant narrated the incident to him. Thereafter the Director, NACEN Madras Mr. P.R.V. Ramanan and Mrs. Ramanan were contacted and the incident narrated to them. Some time later the complainant called on Mr. S.V. Ramakrishnan, Director, NACEN, Western Region at Bombay and appraised him of the incident. She also met Mr. D.S. Solanki, Collector of Customs, Bombay under whose overall charge the complainant was receiving training and she narrated the incident to them. During all these virits the complainant was accompanied by her husband. Complainant also contacted her father and her father-in-law, a retired High Court Judge. They advised her not to keep quiet but to see higher authorities. They assured her full moral support. After the complainant and her husband contacted other superior officers they decided on filing a police complaint.

8. On the next day, i.e. On Monday the 23rd March they met the Commissioner of Police and gave a written complaint. The said complaint is in the handwriting of the complainant (Exhibit 'E'). On the same day the Senior Inspector of Police, Sahar Police Station Mr. Shetye contacted the complainant sometime in the evening. Thereafter two further statements of the complainant were recorded, one on 24th March and the other on 1st of April. Copy of the complaint was given to Shri V.K. Gupta, Principal Collector of Customs, Bombay, Shri Gupta forwarded the complaint to the Chairman, Central Board of Excise and Customs.

9. A panchanama of the scene of offence, i.e., the Office of the Collector of Customs, Sahar Airport, where the alleged incident took place was drawn on 28th March 1992. Statements of the husband of the complainant and other witnesses viz., (1) Surjit Rajkishore Bhujbal -- complainant's co-probationer, (2) Shri Rajendra Prasad, Additional Collector of Customs, Sahar International Airport, Bombay, (3) Shri Uday Narain -- Additional Collector of Customs, (4) Shri K.P. Mishra -- Additional Collector of Customs, Air Cargo Complex, Bombay, (5) Shri Mahadev Hari Kumbhar (driver), (6) Smt. Annapurna Chidambaram, Senior P. A. to the Collector of Customs (7) Shri Sudesh Gujran, P.A. to Collector of Customs, Sahar Airport, (8) Yeshwantrao Balaji Jadhav, (9) Atmaram Kanshiram Bhoite, the owner of PCO, (10) Viraj Pusha Narayan Gosiya, casual loader, Sahar Airport, and (11) Shri Ganesh Yellappa Bhadellu, Sepoy, Cargo complex, Sahar, Bombay and other witnesses were recorded. After completion of the investigation charge-sheet was filed against the accused under Sections 341, 342 and 354, IPC. Charges were framed and explained to the accused/respondent who pleaded not guilty and claimed to be tried.

10. The defence of the accused/respondent is that he has been falsely implicated in the case by the complainant at the instance of a strong lobby of Customs Officers as they were envious of the posting of the respondent as Collector of Customs, at Sahar International Airport, which is a coveted posting and hence they were trying their best to dislodge the respondent from the said posting. According to the respondent, on the day of the incident he had been to Sahar Airport Cargo Complex in connection with his work. In the evening at about 5-30 p.m., while he was busy discussing official matters with his officers, he saw the complainant entering his room in the cargo office. After his work was over at about 6 p.m., while returning to his Sahar Airport Office in his official car he "gave lift to the complainant and returned to his office". Thereafter he called the peon and sepoy who served tea and cold drink to both of them. He was busy in attending his work. Thereafter he had some discussions with the complainant and at that time she pointed out that she is some relative of Ex-Prime Minister Shri P.V.N. Rao through her father as they both are from the same village. The complainant requested him to drop her at her hostel." He expressed his inability to arrange for a vehicle and asked her to make her own arrangement. But the complainant insisted on getting a lift in the official car and stated that she was ready to wait till he finished his work. The complainant also requested the accused/respondent that she be dropped first at her place but accused told her that he wanted to get dropped first as his wife would be waiting for him for dinner, to which she did not raise any objection.

11. According to the accused he called his steno Sudesh and asked him to contact Warehouse Superintendent in order to bring the CBI officials to his room to give him some information in a matter in respect of which they were conducting an enquiry. During all this time the complainant was examining the artifacts placed in the room. She peeped into the ante-chamber where she came across one cassette The Biggest Gold Seizure' and expressed her desire to see the said cassette. Accordingly she viewed the said cassette while the accused was disposing of his work and waiting for the arrival of the CBI officials. At about 7.15 p.m., the complainant switched off the T.V. and VCR. The accused again asked Sudesh to bring the CBI officials as he was getting late. Within a short time he was informed that CBI officials were not coming on that day. Thereafter he got a buzzer from Sudesh from the PA's room asking him whether he can leave the office. He was permitted to do so. A Sepoy was called. The chamber was locked. Thereafter he went outside the office followed by the complainant. His driver was waiting outside the chamber. He was asked to bring the car. It was at that time the complainant requested the accused that she should be dropped first at Ghatkopar Railway Station. There was heavy traffic when they were going along Ghatkopar Station Road. At the suggestion of the complainant she was dropped near Ghatkopar Railway Station, from where she was to get a train for Bhandup. The complainant got down from the car, thanked the accused and walked away from the car towards the station. It is therefore the contention of the defence that the complaint is a concocted one in view of what is stated by the accused and the evidence of the complainant cannot be believed and the complaint needs to be dismissed.

12. In support of its case the prosecution has examined in all 11 witnesses, including the complainant P.W. 1, her husband P.W. 2, Sunil K. Pawatkar, P.W. 3, Mrs. Annapurna Chidambaram P.A. to the accused, Atmaram Aushaan Bhoite P.W. 4 the owner of the communication centre outside Bhandup Railway Station in connection with the telephone calls made by the complainant from his PCO., Surjit Bhujbal P.W. 7 a colleague of the complainant to whom the complainant first disclosed the assault on her modesty by the accused. Other Officers of the Customs Department, examined are -- P.W. 9 Devendra Singh Solanki Collector of Customs, in charge of training programme of the probationers and P.W. 10 B.V. Kumar, the Director General, whom the complainant contacted on the morning of 22nd March. After going through the evidence of the aforesaid witnesses and hearing learned counsel on behalf of the prosecution and the defence the learned Magistrate acquitted the accused of all the charges. Hence the present appeal by the State.

Unfoldlng the prosecution case :

13. The main challenge of the defence before the trial Court is dropping of witnesses, whose statements were recorded by the police and whom the accused considered to be material witnesses as their evidence would disprove the prosecution case. Some of them were admittedly present near about the scene of offence viz., the office of the accused at Sahar Airport and some were present at the Cargo complex where the complainant had gone and met the accused. The other relevant witnesses would be the drivers of the car by which the complainant was taken from the Airport office to the cargo complex and the driver of the official car of the accused by which the complainant was taken from the cargo complex to his office at Sahar Airport in the evening in question and also from Sahar Airport to Ghatkopar Railway Station, where she was dropped. Another relevant witness not examined is the Additional Collector of Customs Mr. Rajendra Prasad who was an eye-witness to what transpired between the accused and the complainant in the chamber of the accused on the question of going to the Sahar Cargo Complex. It is contended that these witnesses could have thrown light on the events prior to and subsequent to the Incident in question, which allegedly took place in the ante-chamber in the office of the accused at the Sahar Airport. These witnesses are the Sepoy who brought tea and cold drinks for the accused and the complainant in his chamber and carried the bag of the accused while leaving the office in the evening; the leader who was outside the cabin of the accused in the corridor and who would have seen the complainant and the accused leaving the office of the accused and noted the unusual behaviour of the complainant and the accused, and, of course, the driver of the official ear who took the complainant and the accused from Cargo Complex to Sahar Airport and thereafter from Sahar Airport to Ghatkopar Railway Station. The driver could have deposed whether the accused held the hand of the complainant or attempted to get intimate with the complainant while on the way to Ghatkopar Railway Station and whether there were any emotional outbursts by the complainant in the car, and whether she objected to the behaviour of the accused. The driver could have confirmed whether the accused had given instructions to take the car first to the Hotel at Madh Island where the family of the accused was allegedly waiting and thereafter to drop her at her hostel at Bhandup as claimed by the accused in his defence. It is pointed out that these were important witnesses whose evidence could have corroborated the events as seen by them prior or subsequent to the main incident which took place behind closed doors. The evidence of the said persons, if examined, would have lent credence to the testimony of the complainant regarding the alleged criminal assault on her person by the accused/respondent. It is contended that these witnesses were dropped deliberately and not examined because their evidence would have weakened the complainant's case.

14. The Court's attention is drawn to the evidence of the Investigating Officer Shri Shete P.W. 11 who has indicated the reasons for not examining the proposed witnesses. Shri Shete in para 19 of his evidence has stated as follows :

"It is true that the witnesses i.e. The loader and sepoy are stamped as a tampered witnesses because they are not supporting uncontrollable crying heard by the witnesses outside the chamber. It is true that I stamped them as a tampered witnesses as they are not supporting the complainant that she raced out of the chamber and she was chased by the accused while going out of the chamber. It is true that I stamped them as a tampered witnesses because they are not supporting about the waiting car of accused at the exit gate."

He also admitted that there was no other reason for him to stamp them as tampered witnesses, except the line of their statements.

15. According to the prosecution these witnesses were dropped because they were not material witnesses and their evidence would make no difference to the prosecution case. However, according to the accused these witnesses are material witnesses. They had occasion to see the conduct of the complainant and the accused before and after the incident and the said conduct was relevant for the purpose of determining the veracity of the prosecution story of molestation and that in the absence of evidence from these material witnesses which has been suppressed, the Court must draw an adverse inference under Section 114 of the Evidence Act.

16. Mr. Chitnis, the learned Special Prosecutor, has contended that, the test whether the witness is material for proving the case is not whether he would have given evidence in support of the defence. The test is whether he is a witness "essential to the unfolding of the narrative on which the prosecution is based". In the present case, it is pointed out, the said witnesses were not necessary for confirming the narrative on which the prosecution case is based and the non-examination of the driver, sepoy and the loader could not be considered a factor in discarding the evidence of the complainant P.W. 1. This proposition of law has been well-settled as laid down by the Apex Court in the case of Narain v. State of Punjab reported in, of the said judgment it is observed as follows :

"13. The question then is, was Raghbir a material witness? It is an accepted rule as stated by the Judicial Committee in Stephen Seneviratne v. The King, AIR 1936 PC 289 :

((1936) 37 Cri LJ 963) that witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution". It will be seen that the test whether a witness is material for the present purpose is not whether he would have given evidence in support of the defence. The test is whether he is a witness "essential to the unfolding of the narrative on which the prosecution is based". Whether a witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied. It is not however that the prosecution is bound to call all witnesses who may have seen the occurrence and so duplicate the evidence. But apart from this, the prosecution should call all material witnesses."

17. Admittedly the sepoy and the leader were not witnesses to the actual incident and could have therefore deposed to what happened in the cabin. What transpired in the cabin of the accused was known only to the accused and the complainant. Hence the question of getting any corroboration to the facts stated by the complainant pertaining to the molestation does not arise. The complainant has given a fairly detailed nature of the events making out the offence under Section 354, IPC, and the narration of those events unfolds the prosecution story implicating the accused. The examination of the driver of the vehicle too was not essential for unfolding the basic prosecution story which took place within the confines of four walls of the office cabin of the accused. It cannot be said that these witnesses were essential to unfolding the prosecution case. No doubt the proposed witnesses, if examined, could have thrown some light on the behaviour of both the complainant and the accused outside the cabin of the accused. It could have been elicited from the driver of the car whether the accused behaved in an unbecoming manner with the complainant while driving from the airport to Ghatkopar Railway Station. But strictly speaking, what transpired in the car is not part of the basic prosecution case.

18. The only question for consideration is whether the testimony of the complainant could be accepted independent of corroboration from the attending circumstances. Dropping of the witnesses who could have proved the attending circumstances can, by no stretch of imagination, be said to be destructive of the prosecution case as their evidence was not necessary to unfold the prosecution case. The investigating officer Shete has stated that the said witnesses were not examined as according to him the said witnesses were "tampered" and this conclusion has been arrived at by him from the nature of the statements given by the said witnesses. Undoubtedly the driver, the loader and the sepoy are employees of the Customs Department. The accused, being the Collector of Customs, was in a position to exercise undue influence on his minions. The Investigating Officer after recording their statements became justifiably apprehensive that the said witnesses would not faithfully and truthfully testify as to the attending circumstances prior to and subsequent to the main incident which as stated earlier, took place within the confines of the office of the accused. This Court cannot read into the said statements as the concerned persons have not been examined. However, this Court has with a view to ascertaining the facts for itself perused the statements and found nothing in them that could be said to be destructive of the prosecution case. The non-examination of the driver, loader and the sepoy cannot be said to be fatal to the prosecution case and hence conclusion drawn by the learned Magistrate and the adverse inference drawn by him due to non-examination of these witnesses is unwarranted.

Non-Examination of Rajendra Prasad

19. The learned Magistrate has made much of the non-examination of the Additional Collector Mr. Rajendra Prasad whose statement recorded by the police would, according to the learned Magistrate, prove that the complainant went to the Air Cargo Complex hot on the insistence of the accused Mr. Khare, but of her own desire to be seen in the company of Mr. Khare.

20. It is pointed out by the learned Magistrate that the complainant has deposed before the Court that she had visited the Sahar Collectorate on 21st March 1992 for the purpose of saying that she had completed her work and that she wanted to say good-bye as she would not visit Sahar Cargo again. Moreover, she wanted to have some clarifications regarding some notifications of gold import from the Additional Collector of Customs, Shri Rajendra Prasad. She went to the office at Sahar Airport where the accused made some enquiries with her and told her that she should include 'Revenue Drive' in her assignment. He also told her that he was going to his office at Sahar Cargo complex and she should accompany him. The complainant told the accused that she wanted to meet Rajendra Prasad. Thereafter the complainant went to the office of Rajendra Prasad for clarification of certain doubts with regard to gold import policy and notifications. Rajendra Prasad told her that he had arranged a car to take her to the Sahar Cargo Complex. Accordingly she went in the car to the cargo complex where she met the accused. On returning from the cargo complex to the office at Sahar Airport the complainant did not travel in the separate car provided to her but accompanied the accused in his car.

21. The learned trial Magistrate has observed that from the evidence of the complainant it appears that it was the accused who insisted upon the complainant going to the cargo complex to study 'Revenue Drive' and to make it a part of her assignment. However, from the statement of Rajendra Prasad recorded by the police it appears that it was not the accused who insisted on the complainant going to the Cargo complex, but it was the desire of the complainant herself to go to the Sahar Cargo Complex and on the pretext of getting some clarification and seeing the notification of gold import she went to the office of the Additional Collector of Customs, Rajendra Prasad, who made arrangement for her transport to the Cargo Complex. The learned trial Magistrate has concluded that the prosecution has deliberately not examined witness Rajendra Prasad to deprive the defence the benefit of his evidence which would be favourable to the accused. Hence the learned Magistrate has thought it fit to draw an adverse inference and give the benefit of doubt to the accused.

22. It must again be pointed out that the testimony of Rajendra Prasad could be of assistance only on the point whether the complainant visited the cargo complex at the instance of the accused or of her own volition. This is not a part of the basic prosecution story which is the subject-matter of the charge against the accused, viz., the charge of molestation which took place in the inner chamber of the office of the accused. What transpired at the Cargo Complex or the reason why the complainant went to Cargo Complex is not material for unfolding the prosecution case of what actually transpired in the 'ante chamber' of the accused. The evidence of Rajendra Prasad would at the most be material only for the purpose of corroborating in an indirect way the defence case that it was the complainant who wanted ,to be seen in the company of the accused so that she could implicate him later on in a false case. Whether the complainant went to the office of the accused at Sahar Airport for the purpose stated by her; or that she went to the Cargo Complex of her own volition or at the instance of accused can be of no assistance in corroborating or demolishing the prosecution case of molestation of complainant by accused in the 'ante-chamber' of his office at the Sahar Airport.

Molestation in Camera :

23. On the charge of molestation which allegedly took place in the ante-chamber of the office of the accused, the learned trial Court found that the substantive evidence of the complainant before the Court is not corroborated by the FIR and has observed that the FIR is totally silent on the material aspects and details as given by the complainant in her evidence before the Court. Attention is drawn to page 9 of the FIR where the complainant has stated as follows :

"Without releasing the grip he pulled me close and brought his arm around me and started misbehaving the details of which I cannot bring myself to mention now."

The learned Magistrate has observed that the complaint is silent on the basic and most important details constituting the offence under Section 354, IPC. The details of the actual molestation have not been given in the FIR and there is no corroboration from the FIR on this material aspect of criminal assault by the accused on the complainant. The learned Magistrate has further observed that the defence has been deprived of an opportunity of pointing out any contradictions in the prosecution story before the Court since no details of the molestation are given in the FIR on the basis of which the nature of the molestation could have been ascertained. To say the least, the reasoning of the learned trial Magistrate is specious if not perverse. It proceeds on an assumption that if the complainant had given details in the FIR of the acts constituting the molestation then this would, as a matter of fact, have resulted in contradictions in the statement made in the FIR and complainant's testimony before the Court.

24. Furthermore, the learned trial Court has observed that there are several discrepancies in the substantive evidence of the complainant and the evidence of Kumar P.W. 10 who has deposed to what was told to him by the complainant in the telephonic conversation she had with him on 22nd March. It is pointed out that the incident as narrated by the complainant before the Court was not communicated to Mr. Kumar P.W. 10 immediately after the happening of the incident and that there are glaring discrepancies between the statement of the complainant and the statement of Mr. Kumar before the Court.

24A. Further it is pointed out by the learned Magistrate that the complainant has stated before the Court that after being telephonically informed, her husband immediately came to Bombay on the next day at 8.00 a.m. and went to the hostel and had discussion with Mr. Bhujbal and complainant and thereafter they contacted Mr. B.V. Kumar at Delhi, and another Director General of NACEN at Madras and that after taking permission of B.V. Kumar, Director General Mr. Ramanan came to Bombay by air in the afternoon. Director General of NACEN Mr. Ramakrishnan trie immediate boss and in charge of the training programme, was also contacted. They all had discussions with the complainant and her husband. However, Mr. Ramakrishnan has not been examined so it cannot be ascertained exactly what statement was made by the complainant before Mr. Ramakrishnan and whether it was in consonance with the statement made before the Court and hence the statement recorded by the police were not available to contradict or corroborate the evidence of the complainant.

25. It is further pointed out that the complainant and her husband had a telephonic talk with Mr. Ramanan and Mrs. Ramanan, his wife, and thereafter they all had discussion with some senior criminal lawyer and it was only thereafter that the complaint was drafted. It is submitted that the complaint was pre-meditated as it was drafted after full deliberation and preparations. The learned Magistrate has therefore concluded that the delay of 48 hours in filing the FIR which was due to the confabulation between the complainant, her husband, the higher-ups in the Customs department and obtaining advice of a senior criminal lawyer, gave ample scope to the complainant to develop a false case against the accused. It is contended that the complainant did not lodge the complaint immediately after her husband came down to Bombay, but waited till she could discuss the matter with the higher ups in the Customs Department and consult a senior criminal lawyer only with a view to make out a water-tight case against the accused. It is further pointed out that the complainant had contacted Mr. Kumar at Delhi on the night of 21st March and it is in the evidence of Mr. Kumar P.W. 10 that neither the complainant nor Surjit, who had accompanied her to the telephone booth, informed him that they would like to file any complaint at that stage. It is pointed out that the evidence shows that before contacting her husband, a telephone call as made to B.V. Kumar at Delhi and the incident was narrated to him. It is therefore not correct to say that complainant waited for the arrival of her husband before deciding what she should do. It is further pointed out that the complainant was a well educated lady and aware of the legal position and that she ought to have lodged the complaint immediately without waiting for her husband to arrive. It is contended that the complainant and Surjit had not contacted the husband of the complainant on the night of 21st but in fact they had contacted P.W. 10 B.V. Kumar at Delhi and Rajendra Prasad, the Additional Collector of Customs at his residence at Bombay and despite having taken their advice she did not file the complaint. The fact that the complainant contacted B.V. Kumar and Rajendra Prasad on the night of 21st and of not having contacted the complainant's husband on the night of 21st is, according to the defence, proved by the evidence of P.W. 4 Mohlte, the owner of the PCO., from where the complainant and Surjit made the telephone calls.

26. Much is made of the fact that the complaint was not lodged at the earliest possible opportunity. There was a delay of more than 48 hours in filing the complaint and this delay was on the count of the complainant consulting various persons and higher ups in the Customs Department and also taking expert legal opinion to prepare a water-tight case against the accused. It is contended that a false case has been made out against the accused under the instructions of Mr. B.V. Kumar, P.W. 10, the Director General who held a grudge against the accused and therefore wanted to falsely implicate the accused who was holding a covetous position in the Customs Department. According to the complainant she did not file the complaint immediately as she wanted to consult her husband before taking a decision. The defence has relied on the evidence of P.W. 4, the person who runs the telephone booth to prove that no phone call was made on the night of 21st March to Hyderabad where the husband of the complainant was residing, and therefore, the reasons given by the complainant for not filing a police complaint on that day itself cannot be accepted. It must be pointed out that the evidence of P.W. 4 establishes that a call was made to Delhi, supposedly to B.V. Kumar, and also a local call made supposedly to Rajendra Prasad, the Additional Collector on the night of 21st March. Clearly, just because P.W. 4 has not stated anything about the call made to Hyderabad that by itself cannot disprove the complainant's case that she first contacted her husband at Hyderabad after the incident on the night of 21st March on the advice of Surhit. It is pertinent to note that P.W. 4 does not state that no calls were made to Hyderabad on the night of 21st March. P.W. 4 has not produced any list maintained by him or from the MTNL showing the telephone calls made from his booth on the night of 21st February (March). If such a list of telephone calls was produced it would have shown whether any telephone call was made to Hyderabad or not. Though the prosecution has not produced any such list of the telephone calls made from the booth of P.W. 4, on the night of 21st March, the learned Special Prosecutor before us has produced a list of telephone calls made from the said telephone booth. This list, which was obtained from P.W. 4 shows that two telephone calls were made on 21st March to Hyderabad on telephone No. 0842 247310 which undisputedly is the telephone number of the husband of the complainant at Hyderabad. Thus it cannot be said to be proved that no telephone call was made by the complainant to her husband on the night of 21st March. The complainant's case that she did not lodge the complaint immediately after the incident as she wanted to consult her husband as to what she should do, must be accepted as true, as in fact, her husband did come down to Bombay immediately the next morning i.e. 22nd March, (Note : The list of telephone calls made on 21st March was not shown to the defence prior to production before me nor has it been proved to be obtained from P.W. 4 the owner of the PCO.).

27. Immediately the next morning on the arrival of complainant's husband Mr. B.V. Kumar was contacted and appraised of the incident. Other higher-ups in the Customs Department were contacted and legal opinion obtained from a senior criminal lawyer and only thereafter the complaint was lodged. The conduct of the complainant in the circumstances in which she was placed, was perfectly natural and the circumstances per se sufficient explanation for the delay in filing the complaint. The so called delay in filing the complaint cannot therefore, be a ground for rejecting the testimony of the complainant.

28. The learned Magistrate has made much of the fact that the details of the incident given by the complainant are at variance with the details given by P.W. 10 B.V. Kumar. The variance/difference, if any, in the said versions given by the complainant and B.V. Kumar are not of such magnitude as to reject the version given by the complainant herself. It must not be forgotten that it is the evidence of the complainant, the victim, that is of paramount importance and the version given by a third person, like Kumar, is a mere hearsay. Moreover, P.W. 10 B.V. Kumar could not be expected to remember all the details given to him in the telephonic conversation he had with the complainant. The evidence of B.V. Kumar on the actual incident of molestation, being hearsay, could hardly be used as corroboration to the evidence of the complainant; much less can any variation in the details of the incident given by Mr. Kumar be said to contradict the version of the incident given by the complainant herself.

29. But what seems to have made the learned Magistrate to reject the case of the complainant are the apparent discrepancies by way of omissions in the complaint; FIR recorded by the police. It is pointed out that the FIR does not contain the details of the incident which have been given by the complainant in her testimony before the Court. And therefore her testimony before the Court is an attempt at improving her case stated in the FIR. No doubt all the facts stated in the evidence of P.W. 1 may not be appearing in the FIR. Nevertheless the gist of the actual incident has been set out in the FIR. It must not be forgotten that the complaint was filed by P.W. 1 after consultation with her husband and the complaint is in the handwriting of the complainant who would naturally have felt embarrassed to place the lurid details of the assault on her by the accused in writing. From a perusal of the FIR it would be clear that the complainant was overwhelmed with a sense of shame. Clearly she did not want to embarrass herself or her husband any further. Even in her testimony before the Court the complainant has avoided giving any embarrassing details of the molestation though she has in her testimony (paras 24 and 25 of the notes of evidence) given a more graphic account of how the incident took place than as set out in the FIR. This by no stretch of imagination, can be said to be an improvement made after obtaining legal advice and deliberation. It must not be forgotten that the complaint itself was lodged after consultation and obtaining legal advice. The reason given by the Magistrate for rejecting the evidence of the complainant on account of the so called improvements made in the evidence regarding the incident is wholly unwarranted.

30. The learned trial Magistrate has disbelieved the evidence of the complainant about her molestation by the accused in his ante-chamber in view of his findings pertaining to the events that took place after the incident when the complainant allegedly rushed out of the cabin of the accused, followed by the accused. It is pointed out that the complainant has stated that after coming out of the office of the accused she came to the exist gate and was trying to get a taxi, but in the meantime the accused came there and co-incidentally official car also arrived at the gate and the accused 'propelled' the complainant into his car against her wishes.

31. The trial Court has held that the driver of the car whose statement has been recorded and who could have thrown some light on the manner in which the complainant found herself in the car, viz., whether she was propelled into the car by the accused or not, has deliberately not been examined and therefore an adverse inference has been drawn against the prosecution. As stated earlier it was not necessary for the prosecution to have examined the driver as well as other witnesses who had not seen the incident; as their evidence was not necessary for unfolding the prosecution case. Therefore the non-examination of the driver cannot be a ground for disbelieving the evidence of the complainant. Further more, the learned Magistrate has 'reasoned' that the complainant not being an 'ordinary' lady and having completed two years of probationary training, including training in martial art would not have allowed herself to be propelled physically into the car by the accused. And if she was so badly molested by the accused earlier she would not have continued to travel in the car right up to Ghatkopar Railway Station during which time the accused was holding her hand and patting her thighs as alleged by the complainant. Further since the accused was not the immediate boss of the complainant and did not have any powers in connection with her posting or training, there was nothing to compel the complainant to surrender to his wishes. She could have very well asked the driver to stop the car and get out of the car and taken a taxi to her hostel. The learned Magistrate has concluded that the behaviour of the complainant after she left the cabin of the accused till the moment she was dropped at Ghatkopar Railway Station was unnatural. Since the complainant did not prevent the accused from his advances even in the car till she was dropped, when she said 'thank you' to the accused.

32. The learned Magistrate in arriving at the above conclusion has completely misdirected himself by basing his findings on unwarranted inferences and surmises about the physical training and social standing of the complainant. It has been brought on record in the evidence of the complainant herself that when she came out from the office of the accused and was at the exit gate she was desperately trying to get a taxi. But before she could even proceed further to find a taxi the accused came there and at that time the car of the accused also came at the spot and thereupon the accused 'hustled' her into the waiting car. The use of the word 'propelled' may not be a happy expression but it does not mean that the complainant was bodily lifted and shoved into the car. It does however, convey the meaning that the attending circumstances gave no time to the complainant to decide and that she found herself in the car even before she realised it. Moreover, no modest woman would create a scene in front of others, especially the staff working under the accused who was a high-ranking official in the Customs department and also the fact that she had just come out of his cabin. The complainant has also in her evidence stated that during the travel from the Airport office of the accused to Ghatkopar Railway Station the complainant resisted the advances of the accused by abruptly pushing his hand. If the complainant said 'thank you' to the accused after she was dropped near the railway station that cannot be held against her as having acquiesced to the conduct of the accused, rather it would show that the complainant was a cultured and well mannered person who did not want to create an unnecessary scene. The conclusion therefore of the learned trial Magistrate that the conduct of the complainant was unnatural, needs to be rejected.

33. The learned Magistrate has also referred to the FIR wherein the complainant has stated that during the course of her molestation by the accused she vomitted in his chamber. It is pointed out that the fact of omitting is not mentioned by the complainant in her evidence. In her cross-examination she has explained that she used the word 'saliva' and not 'vomit'. It is argued that when the panchanama of the scene of offence was made, the complainant was present, but she failed to point out any stains of vomit in the said chamber of the accused and, in fact no stains or traces of vomit were found in the chamber. It is therefore concluded by the learned Magistrate that the complainant has come out with the story that there was discharge of 'saliva' and not 'vomit' only with a view to explain why there were no stains left in the cabin of the accused. The learned Magistrate has taken upon himself the task of explaining why no mark or stain of such discharge or 'vomit' was found in the chamber of the accused. According to the learned Magistrate the complainant was in a state of trauma condition on account of the molestation and her mouth therefore would be dry and there would not be any discharge of saliva. Obviously the learned Magistrate has substituted his personal opinion in place of expert medical opinion. The learned Magistrate clearly is not qualified to give such an opinion. Therefore his finding that there could be no vomiting or discharge of saliva in the cabin of the accused is without basis. In fact the opinion expressed by the learned Magistrate is wholly irrelevant either to the case of the complainant or the defence as the panchanama conducted in the office of the accused makes no reference to any stains or marks found in the cabin of the accused, leave alone stains of vomit or saliva.

34. The Very scheme of approach' of the learned Magistrate to a sensitive and delicate matter which involves a woman's privacy has been faulty. The learned trial Magistrate has misdirected himself in appraising the evidence. The trial Court has gone astray from the basic features of the case by using the FIR as a substantive piece of evidence to discredit the complainant and by reading into the statement of the driver, loader and sepoy, recorded under Section 161 Cr. P.C. and thereby "losing himself in a labyrinth of immaterial details, desultory discussion and vacillation arising from unfounded suspicions."

35. As stated earlier the defence of the accused is that he is falsely implicated by the complainant at the instance of P.W. 10 B.V. Kumar and other higher-ups in the Customs Department who are bent upon getting the accused dismissed and/or transferred from his coveted position as Collector of Customs, Sahar International Airport.

36. Apart from stating his defence in his statement under Section 313/314, Cr. P.C. the accused has not examined any witness in support of his defence. He has not produced any evidence to show why P.W. 10 Kumar or any of the higher-ups in the Customs Department wanted to have him out of his coveted position. There is nothing brought on record to show that there is any previous enmity between the accused and Mr. B.V. Kumar or any of the other officers in the Customs Department, nor is there anything on record to show whether B.V. Kumar or other officers have stood to gain in any way by getting the accused falsely implicated in a charge of molestation, that too of a woman who has just completed her training as a probationer in the Customs department. All that the defence has relied upon are the perceived improbabilities in the prosecution case which according to the accused go to show that the complainant was deliberately wanting to be seen in the company of the accused so that she could thereby implicate him in a false case of molestation. It has been argued that the reasons given by the complainant for visiting the Sahar Airport and meeting the accused are false because the complainant at no time, while in the company of the accused, brought up the topic of 'Revenue Drive' in her assignment. It is pointed out that even after the complainant had gone to the Sahar Air-cargo complex and met the accused in his cabin no reference was made to 'Revenue Drive' for the purpose for which she had allegedly gone to the Sahar Airport. It is pointed out that the complainant had stated that she went to the Sahar Airport to say good-bye to the accused and Rajendra Prasad as she had completed her training period, but in fact she had gone there in the morning at 11-30 and there was no explanation why she had gone there in the morning and what she was doing there from 11-30 a.m., till 3.30 p.m., when she met the accused. It is therefore contended that the real reason for which the complainant went to the Airport was to be seen in the company of the accused to trap him in a false case.

37. The fact that the complainant had gone to the Airport, met the accused in his cabin and thereafter also met him in the cargo complex at Sahar and returned therefrom to the office of the accused at Sahar Airport and after the incident of molestation, that the accused travelled in the official car with the complainant up to the point when she was dropped at Ghatkopar Railway Station, are admitted facts. However, complainant's version of what actually transpired in the office of the accused between 6 to 7.30 p.m. is strenuously denied by the accused and the accused has given his own version as set out in his statement under Section 313/314 of the Cr. P.C. It is only the word of the complainant as against that of the accused the Court is required to accept as proof of the charge of molestation. The accused has brought on record evidence to show that at the relevant time he was busy disposing of his files in his office and that for about 10 to 15 minutes the accused only kept sitting in his cabin. Thereafter she strayed into the ante chamber and watched the cassette of gold seizure.

38. The improbability of the accused indulging in such a misadventure has been highlighted. It is pointed out that at that time the accused was expecting to meet officers of the CBI who had to come and see him in connection with some enquiry. In support of this he has examined one Suresh, his personal assistant. However, it has been brought on record through the said Suresh that the CBI officers did not in fact come on that day to the cabin of the accused and had sent a message that they had cancelled the visit.

39. The accused has denied that he invited the complainant to his ante-chamber. It is not denied that the complainant watched a clip on gold seizure. It is also not denied that the accused was also there in the chamber with the complainant. It is however, the case of the accused that the complainant of her own went inside the chamber and watched the cassette on TV and after watching the clip the complainant came out of the chamber and, since he was informed that CBI officials were not coming he left the cabin along with the complainant. Thus all we have about the actual incident of molestation is the word of the complainant against the word of the accused. It must however, not be forgotten that the complainant has stated her case on oath before the Court which is corroborated by her complaint to the Police (FIR). The accused has only denied the allegations and given his version in his written statement under Section 313, Cr. P.C. which is not on oath.

40. Therefore what remains to be considered is the probability and improbability of the complainant wanting to falsely implicate the accused and risking damage to her character and her career in the Customs Department. No decent self respecting women would allow herself to be used as a tool in the hands of her superiors to falsely implicate another superior officer in such a serious charge as molestation with a view to improve her prospects in the organisation, especially since the allegations would be damaging her personal reputation and character. Moreover, there is nothing to show how the complainant would in any way have personally gained or benefited by implicating the accused in such a false charge. Nor is there any evidence on record to show the nature of relationship of B.V. Kumar P.W. 10 with the complainant enabling P.W. 10 to influence the complainant to such an extent as to cause her to file a false complaint implicating the accused in a serious charge, the natural consequence of which would be damage to her honour and invasion of her privacy as a woman. There is also nothing on record to show that B.V. Kumar wanted to falsely implicate the accused and in what way would P. W. 10 benefit from the removal of accused from the so-called coveted post as Collector of Customs at Sahar Airport. There is also no evidence of whatsoever nature nor is there anything to suggest enmity between the accused and P.W. 10 B.V. Kumar. A reference is made by learned advocate for the accused to the case wherein P.W. 10 B.V. Kumar himself was charged for having committed rape on a foreigner. However, Mr. Kumar has been acquitted in the said case. Even otherwise there is no connection shown between the prosecution of P.W. 10 for rape to his wanting to falsely implicate the accused. It is not even suggested that the accused was in any way instrumental in prosecuting B.V. Kumar for rape of the foreigner.

41. According to the defence, the complainant has falsely implicated the accused at the instance of P.W. 10 Kumar since she had contacted Mr. Kumar prior to lodging the complaint and had telephonically informed him of the incident of molestation. But it is not explained why P.W. 1 tagged along with accused on the evening of 21st and at whose instance she did so. There is nothing to show that P.W. 10 Kumar had contacted the complainant at any time prior to P.W. 1 complainant visiting Sahar Airport on 21st and 'deliberately' allowing herself to be seen in the company of the accused. It is the case of the defence that the exact nature of the complaint was decided after confabulations with B.V. Kumar P.W. 10, and other customs officials and after obtaining the advice of a senior criminal lawyer and all this happened only after husband of the complainant came down from Hyderabad and contacted B.V. Kumar P.W. 10 on the morning of 22nd March. The case of the defence that the complainant went to the Airport with the specific intention of being seen in the company of the accused with the motive of later on falsely implicating the accused makes nonsense of the defence charge that complainant has falsely implicated the accused at the instance of P.W. 10. Conspiracy cannot be post facto and the conspirators cannot be accessories after the fact.

42. The learned trial Magistrate in disbelieving the complainant and rejecting her testimony has completely gone astray in that he has rejected the evidence on oath which I is clear, cogent and straight forward and found discrepancies in the evidence of the prosecutrix herself where none exists. As stated earlier no decent woman would risk her reputation and honour for no apparent reason as seems to be suggested by the defence. The evidence of the prosecutrix by itself is credible and unimpeachable requiring no corroboration. In view of the above the case of the prosecution has to be accepted and the impugned order acquitting the accused set aside and the appeal allowed.

43. I have heard learned Advocate Mr. Ponda on the question of sentence. He states that the accused is still in employment and he will now lose his job which would itself be sufficient punishment. It is therefore prayed that the accused/respondent be given the minimum punishment permissible under the law.

44. In the result the appeal is allowed and the order of acquittal is set aside. Accused-Satyendra Dayal Khare is convicted of the offence under Section 354, I.P.C. and is directed to suffer R.I. for 6 months and to pay a fine of Rs. 25,000/- in default, to suffer further R.I. for 1 month.

Learned Advocate Mr. Ponda for the accused prays for time to surrender. The accused is granted 6 weeks time to surrender.

In case the judgment is not ready by then liberty to apply.