State Of Maharashtra vs Dilip Aatmaram Auti
2004 Latest Caselaw 209 Bom

JUDGMENT

D.S. Zoting, J.

1. This is an appeal preferred by the State of Maharashtra against the judgment and order dated 31-5-1983, passed by the learned Extra Additional Sessions Judge, Ahmednagar, in Sessions Case No. 46 of 1983, whereby the accused has been acquitted of offence charged under Sections 354 and 307 of the Indian Penal Code.

2. The respondent/accused (hereinafter referred to as, "the accused") was charged for having committed offence punishable under Sections 354 and 307 of the Indian Penal Code on the allegations that on 21-3-1983 at about 10.30 p.m. in the night at the Vasti in the field known as, "Umbaracha Mala" situated at village Malunja Bk. Shivar, Taluka Shrirampur, District Ahmednagar, assaulted or used criminal force to Miss. Rajani daughter of Sukhdeo Badakh a woman intending to outrage her knowing it to be likely that he would thereby outrage the modesty of said Miss. Rajani by such assault or criminal force. Charge under Section 307 of the Indian Penal Code was framed on the allegation that in the course of same transaction the accused inflicted injury by means of knife on the chest of aforesaid Miss. Rajani and made an attempt to commit her murder.

3. Facts which are not disputed may be briefly stated as under.

Prosecutrix Rajani is the daughter of one Sukhdeo Badakh. Sukhdeo Badakh was residing at the hut of one Jagannath Yadav Badakh for about 5 years prior to the incident. Sukhdeo Badakh was residing with his wife, 3 sons and daughter Rajani. Adjoining to the hut of Sukhdeo, there is a hut of the accused. Witness Damodhar Jagdhane (PW 3), Dadasaheb (PW 4) and Damodhar Badakh (PW 14) are the neighbours of Sukhdeo. Raghunath Badakh (PW 15) is the police patil. Damodhar Jagdhane (PW 3) is the husband of Parvatibai (PW 12). Chandrakalabai (PW 13) is the mother of the prosecutrix.

4. Prosecution case is that on 21-3-1983, Sukhdeo the father of prosecutrix had gone to the threshing ground at night. There was a cinema show in the village on that night. At about 8.30 p.m. the accused went to the house of Sukhdeo and took along with him the two brothers of the prosecutrix for cinema show. Later on Sukhdeo and his elder son Vilas went to the threshing ground which is about 1000 feet away from the hut of Sukhdeo. Soon thereafter the mother of Rajani went with bread to the threshing ground for giving the same to Sukhdeo and Vilas. Thus, Rajani remained alone at the house. She closed the house and slept on the raised platform (Ota) on a quilt and covered herself with Chadar. At about 10.30 p.m. Rajani was awakened due to forcible removal of Chadar. She got up and saw the accused sitting by her side. She got frightened. The accused started playing with her body and held her breast. Rajani asked him to go away but the accused embraced her and started dragging her inside the house. She raised cries. The accused gave a threat to her that if she raised cries she would be stabbed. Despite of such threat, Rajani raised cries again. Having noticed this, the accused took out the knife from his pocket and stabbed it on the chest of Rajani and started running away from the scene of incident. On hearing the cries of Rajani, residents who were present in their respective huts rushed to the hut of Rajani. Damodhar (PW 3), Dadasaheb (PW 4), Parvatibai (PW 12) and Damodhar Badakh (PW 14) are the persons amongst others who rushed to the hut of Rajani. The parents of Rajani had also heard the cries of Rajani and they also came to the hut. It was Parvatibai (PW 12) who first reached near her and she noticed injury which was bleeding profusely. She pressed the injury by her hand to stop the bleeding. Damodhar (PW 3) and Dadasaheb (PW 4) chased the accused who was running but it was futile because the accused ran and entered into the sugarcane crop. On arrival of parents of Rajani, Chandrakalabai (PW 13) the mother of Rajani, made inquiry with Rajani, Rajani then disclosed the whole incident. Rajani was removed in bullock cart to village doctor named Dr. Shaikh (PW 5). Dr. Shaikh (PW 5) gave first aid to Rajani and advised the parents of Rajani to shift her to Shrirampur. In the meanwhile, the accused was caught by the crowd when he was found running by the side of dispensary of Dr. Shaikh. The accused was handed over to the police patil. Police patil kept him in Garmpanchayat office and went to the police station and gave information of the matter to the police in brief. Ganpat (PW 16) who was attached to the police station as Police Head Constable entered the information in the station diary. Police van was brought from Shrirampur, in which victim Rajani and accused were taken to Shrirampur. Rajani was thereafter shifted to the Municipal Hospital. There some treatment was given to her and she was advised to take treatment at Ahmednagar hospital. Ultimately, she was removed to Ahmednagar hospital. By that time, statement of Rajani was recorded by Police Sub-Inspector Madhukar Balote (PW 17) which was treated as the first information report, and on the basis of the same, offence under Sections 354, 307 of the Indian Penal Code came to be registered against the accused. P.S.I. Balote (PW 17) took up the investigation. In the course of investigation, 'Manila' of the accused was attached. The clothes on the person of victim were also seized. Sample of blood stained earth was taken from the spot. During interrogation, the accused disclosed the fact of concealment of the knife in his house and showed his willing to point out the knife. The said knife was recovered in consequence of the information given by him in presence of the panchas. The knife was attached. The seized articles were sent to the Chemical Analyser. After completion of the investigation, the accused was chargesheeted for the aforesaid offence in the court of Judicial Magistrate, First Class, Shrirampur.

5. As the offence under Section 307 of the Indian Penal Code is exclusively triable by the court of Sessions, the case was committed to the Court of Sessions. Charge under Sections 354 and 307 of the Indian Penal Code was framed against the accused. It was read over and explained to him. He pleaded not guilty and claimed to be tried. His defence is that some unknown person might have stabbed Rajani and he has nothing to do with the incident. According to him, he was not in the village on that night at 10.30 p.m. but he was brought for cinema and was beaten on false charge. According to him, he is of different community than most of the people in the village and the majority of the villagers want that he should go out of the village and give up the possession of his family land. According to him, with that end this false case has been set up. He has not adduced any evidence nor examined himself on oath as a witness.

6. On appreciation of the evidence on record, the learned Extra Additional Sessions Judge, Ahmednagar came to the conclusion that on the night in question somebody did attack Rajani with some weapon, however, the story as tried to be put before the court is not at all borne out by the evidence on record. He found that there does not appear to be any convincing evidence of the act of outraging modesty. It is observed by the learned trial Judge that immediate disclosure made by Rajani was about only stabbing her and not in respect of outraging modesty. It is further observed that the first information given to police was only of mere stabbing and not about the allegations of outraging modesty of prosecutrix. The learned Judge found that it was highly improbable that the accused was identified at the night time. Considering the evidence, the learned Judge found that the true genesis of the incident is suppressed by the prosecution. In view of his findings, the learned Judge held that the accused is not guilty of the offence with which he was charged and acquitted him of the offence charged.

7. Being aggrieved by the said judgment and order of acquittal, passed by the learned Judge, the State of Maharashtra has preferred this appeal challenging the said order of acquittal before this court.

8. We have heard the arguments advanced by Shri A. V. Gore, learned Additional Public Prosecutor appearing for the appellant/State of Maharashtra and Shri. R. L. Kute, advocate holding for Shri R. N. Dhorde, learned counsel for the respondent/accused.

9. The learned Additional Public Prosecutor submitted that prosecution has examined 17 witnesses in support of its case and the said evidence consists of ocular evidence of Rajani (PW 2) and circumstantial evidence of five witnesses as well as the medical evidence and the evidence of panchas. He further submits that there is ample reliable and trustworthy evidence on record to prove the involvement of the accused in the crime, however, the learned Judge was in error to have come to his findings holding the accused not guilty of the offence. He pointed out that the learned Judge erred in treating the station diary entry as first information report and ignoring the report lodged by the prosecutrix while considering the evidence of the prosecution witnesses. He further contended that the learned Judge has failed to appreciate that the accused was known to the prosecutrix for last 4-5 years prior to the incident and he being the neighbour and as there was inter-action between the accused and the complainant at the time of occurrence of the incident, the prosecutrix cannot commit any error in identifying the accused to be a perpetrator of the crime. He further submits that in addition to the evidence of the prosecutrix, there is direct evidence of Damodhar (PW3) who had also identified the accused while chasing him. Moreover, there is immediate disclosure made by the prosecutrix before all these witnesses that the accused is the perpetrator of crime. Under such circumstances, he submitted that the findings recorded by the learned Judge are based on erroneous appreciation of evidence and thereby serious miscarriage of justice is caused and, therefore, he lastly submits that the findings recorded by the learned Judge deserve to be reversed and the order of acquittal deserves to be quashed and set aside and the accused should be convicted for the offence punishable under Sections 354 as well as 307 of the Indian Penal Code.

10. As against this, the learned advocate appearing for the respondent/accused has fully supported the judgment and the order of acquittal passed by the trial Judge. He submits that though the prosecutrix and the witnesses claim to have identified the accused, there is no evidence on record to show that there was sufficient light for identifying the culprit and under such circumstances, the claim of prosecutrix as regards identification of the accused should not be believed. He further submits that according to the prosecution the accused ran away from the spot and he was caught near the hospital of Dr. Shaikh (PW 5) while running away. Under such circumstances, there was no opportunity for the accused to visit his house and keep the knife in the house. Therefore, according to the learned advocate the knife was planted in the house and as such, according to him, evidence to that effect should not be believed. He further submits that the accused came to be implicated falsely due to rivalry with some of the witnesses. He further submits that the prosecution evidence suffers from contradictions and discrepancies which touches the core of the prosecution case and as such the evidence of prosecution witnesses should not be believed. Lastly it is contended that there is no reference of the allegation of outraging modesty of the prosecutrix in the first information report (station diary entry) and, therefore, the story regarding the allegations under Section 354 of the Indian Penal Code is an afterthought and cooked up story. According to him, the remaining allegations even if are held to be proved, they do not constitute offence under Section 307 of the Indian Penal Code, but may constitute offence under Section 324 of the Indian Penal Code and if the court comes to the conclusion that the accused is guilty of such offence, leniency in the matter of sentence should be shown to the accused.

11. Having heard the arguments advanced by both the sides and after going through the entire evidence of the prosecution, we find that there is ample cogent, reliable and trustworthy evidence against the accused as regards the actual occurrence of the incident to prove his involvement, and the facts proved constitute offence punishable under Sections 354 and 324 of the Indian Penal Code for the following reasons.

12. Before we proceed to consider the prosecution evidence, it would be just and proper to note the following principle laid down by the Supreme Court in Ambika Prasad v. State (Delhi Administration) .

"Criminal trial is meant for doing justice not just to the accused but also to the victim and the society, so that law and order is maintained."

In that case, it was held that the Judge does not proceed over the criminal trial merely to see that no innocent man is punished, but the Judge also presides to see that guilty man does not escape. One is important as the other. Both are public duties which the Judge has to perform.

Thus keeping in mind the above principle, prosecution evidence needs to be considered.

13. To begin with, it is to be noted that during trial as many as 17 witnesses have been examined by the prosecution as under.

Direct Evidence                    Rajani                                   PW 2
Circumstantial Evidence            Damodhar Jagdhane                        PW 3
                                   Dadasaheb                                PW 4
                                   Parvatibai                               PW 12
                                   Chandrakalabai                           PW 13
                                   Damodhar Badakh                          PW 14
                                   Police Patil Raghunath Badakh            PW 15
Panchas                            Baburao                                  PW 7
                                   Ramkrishna                               PW 8
                                   MadhukarThorat                           PW 9
                                   Sk. Banemiya                             PW 10
Medical Evidence                   Dr. Shaikh                               PW 5
                                   Dr. Khot                                 PW 6
                                   Dr.Goyal                                 PW 11
Police Officers                    Head Constable Ganpat                    PW 16
                                   P. S. I. Balote                          PW 17


 

14-15. Rajani (PW 2) the actual sufferer of the incident gave evidence that she was sleeping on Ota in front of the hut on a quilt. She had taken Chadar for covering herself. She further stated that at about 10.30 p.m. somebody removed Chadar with which she had covered herself, hence she got up. She got up and sat. She found the accused Deelip near her bed. She further stated that the accused then pressed her breast by one hand and then he embraced her breast and started dragging her inside the house. Having seen this, she told him that she would tell this to her father. She told him to quit but he did not leave her. Hence, she started raising loud cries. She further stated that the accused took out knife from his pocket and told her to keep quiet, else he would stab her. Despite of his threat, she raised cry and thereupon the accused stabbed her and the accused started running away. She had a bleeding injury on her chest. It is to be noted that having heard the cry of Rajani, persons residing nearby rushed to the hut of Rajani. Damodhar (PW 3), Dadasaheb (PW 4), Parvatibai (PW 12), Damodhar Badakh (PW 14) are the persons who rushed to the hut of Rajani immediately on hearing her cry. Rajani has categorically stated that Parvatibai (PW 12) was the first person to come near her after she raised cries. It is to be noted that Damodhar (PW 3) is the husband of Parvatibai (PW 12). Their house is at a distance of only 30 ft. away from the hut of Rajani. From their evidence, it appears that after reaching the spot, Parvatibai (PW 12) noticed bleeding injury on the person of Rajani. Hence she pressed the injury with her hand, whereas her husband started running towards east. Her husband stated that on hearing the cry of Rajani, he looked towards the Ota of Rajani and saw accused running towards east from the spot, hence he chased him. According to him, Dadasaheb (PW 4) followed him, however, he could not catch the accused as he entered into the sugarcane crop. He stated that he told Dadasaheb that the accused was running. His version is corroborated by the testimony of Dadasaheb (PW 4). Dadasaheb (PW 4) stated that on hearing the cry of Rajani, he opened the door of his house and saw one person running towards east. He was being chased by Demodhar (PW 3). Therefore, he also started running in the same direction and when he reached near Damodhar (PW 3), Damodhar told him that the accused had ran ahead. Thus, the evidence as regards identity of the accused as disclosed by Rajani is corroborated by the witness Damodhar (PW 3) who chased the accused.

16. The evidence of Dadasaheb (PW 4) further finds corroboration in the testimony of Parvatibai (PW 12), who stated that she heard the cry of Rajani at about 10.30 p.m. and hence she thought that some untoward incident had occurred and she rushed to the place of incident where she noticed that Rajani was on the Ota and she was weeping loudly. She categorically stated that Rajani told her that accused stabbed her on her chest with the knife and, therefore, she went inside and brought the lantern. She further stated that there was bleeding from the injury on chest of Rajani and hence she pressed the injury by her hand. Thus, it is evident from the evidence of Parvatibai (PW 12) that Rajani made disclosure regarding the perpetrator of crime before her who was the first person to come near her. Similar disclosure was made by the prosecutrix before her mother Chandrakalabai (PW 13) and other witnesses who had assembled there.

Both these witnesses have categorically denied in their cross-examination that there was no moon light at the time of the occurrence of the incident. Despite of such denial, the learned trial Judge has laid much emphasis on the fact that there was no light to identify the person, because according to him, Parvatibai (PW 12) was required to bring a lantern before she pressed the injury of Rajani to stop the bleeding. In this regard, it is to be noted that the evidence of Parvatibai (PW 12) reveals that on hearing the cry, she immediately rushed to the hut of Rajani and when Rajani told that she was stabbed by the accused, she brought the lantern. The conduct of this witness appears quite natural. Though the light was sufficient to identify the person, it may not be possible to locate the exact point of bleeding and for that purpose, it is quite natural to bring the lantern, but merely on the ground that lantern was brought, no inference can be drawn that there was no sufficient light to identify the culprit. It is to be noted that the accused was the neighbour of the prosecutrix for 5-6 years prior to the incident. There was moon light on that night. Moreover, there was inter-action between the accused and the prosecutrix. She has categorically stated on oath that when she resisted the accused and told him that she would tell the matter to her father, the accused took out knife and uttered the words, "keep quiet otherwise he would stab her". It is to be noted that she noticed the accused from very close distance as the accused had caught hold of her. Not only this, but he uttered certain words as pointed out above. It has also come in her evidence that the incident lasted for five minutes. During such a period of five minutes, it was not impossible for the prosecutrix to identify the known person in the moon light as well as from his voice. Under such circumstances, there appears no reason to doubt the testimony of this witness which is further supported by the evidence of neighbourers, namely, Parvatibai (PW 12), Damodhar (PW 3), Dadasaheb (PW 4) and other witnesses, namely, Chandrakalabai (PW 13) - the mother of the victim and Damodhar Badakh (PW 14). It is also to be noted that the accused was caught by the crowd near the hospital of Dr. Shaikh (PW 5) and produced before the police patil Raghunath (PW 15). It has come in the evidence of Chandrakalabai (PW 13) that when she brought her daughter to Dr. Shaikh (PW 5), she noticed that the accused was running away. Therefore, she brought this fact to the notice of the crowd, which rushed to him and caught hold of him. If the accused was innocent there was no reason for him to run away. It is to be noted that he was assaulted by the crowd. Under such circumstances, such a reaction of the crowd is quite natural. It is also pertinent to note that when he was produced before the police patil, the police patil immediately rushed to the police station at Shrirampur and gave information which was entered in station diary. The information discloses the name of the accused to be the perpetrator of the crime.

17. The learned advocate for the accused contended that the station diary does not contain the information as regards allegations under Section 354 of the Indian Penal Code. In this regard, it is to be noted that the information is given in respect of the main offence of stabbing, it is also necessary to note that the police patil is not an eye witness to tell the incident in detail to the police. He informed the police only about the information received by him. The information so referred in the station diary cannot be treated as first information report, though the learned trial Judge held the same to be the first information report. The finding recorded by him to that effect apparently appears erroneous. The first information report was recorded by the Police Sub-Inspector Balote (PW 17) when the complainant was being taken to the hospital for treatment. It is to be noted that the said report came to be recorded at 4.30 a.m. i.e. within six hours of the incident and at any rate it cannot be said that there is a delay in lodging the first information report. The said first information report is at Exh. 7. It is signed by the prosecutrix as required under Section 154 of the Criminal Procedure Code. What she reported to the police vide Exh. 7 ought to have been held as the first information by the trial Judge. It is to be noted that this first information report contains the allegations under Sections 354 as well as 307 of the Indian Penal Code and the name of the accused to be the perpetrator of the crime. Under such circumstances, there cannot be any doubt that the accused is the person who is the perpetrator of the crime.

18. We do not agree with the learned trial Judge that somebody has committed the offence and the accused came to be implicated merely on suspicion. It is contrary to the ordinary human nature for injured witness like Rajani (PW 2), a 14 years old girl, to omit the name of real assailant and substitute a wrong person in his place. It is difficult to believe that injured witness would spare his real assailant and falsely involve an innocent person as a person responsible for outraging her modesty and causing injuries to her. It is also difficult to believe that the girl and the parents would come forward with such type of allegations under Section 354 of the Indian Penal Code where her honour and the honour of her family is involved. We feel that Rajani (PW 2) has no reason to speak ill of the accused. Her version has a ring of truth and it does not seem to be in any way tainted. We are, therefore, inclined to accept it as there is nothing to discard her sworn testimony.

19. In addition to the direct as well as the circumstantial evidence, there is also evidence of discovery under Section 27 of the Indian Evidence Act proved by panch witness Madhukar Thorat (PW 9) and P.S.I. Balote (PW 17), who gave evidence that after the arrest of the accused he made a statement that he had concealed the knife in his house and he would show the same and in consequence of the said information the knife article No. 5 was recovered, which was found stained with blood. The report of Chemical Analyser shows that human blood was found on the clothes of the accused. This is the additional evidence in support of the prosecution case, however, as there is direct evidence and other corroborative circumstantial evidence from other witnesses, it plays not so important role in the present matter. The essential ingredients of offence punishable under Section 354 of the Indian Penal Code are that person assaulting must be a man and the accused must have used criminal force on her, intending thereby to outrage her modesty. Definition of modesty is nowhere defined, but the essential ingredient of woman is her sex. Act of pressing the breast of the prosecutrix by one hand and then holding her and dragging her inside the house amounts to outrage the modesty of the prosecutrix. Intention of culprit is the crux of the matter and reaction of woman is the truth, and thus there cannot be any doubt that the said act constitutes the offence punishable under Section 354 of the Indian Penal Code.

20. Coming to the allegations as regards the offence punishable under Section 307 of the Indian Penal Code, it is to be noted that there appears some discrepancy between the evidence of Dr. Knot (PW 6) and Dr. Goyal (PW 11) as regards the injuries noticed by them. According to Dr. Goyal (PW 11), on examination he found contused lacerated wound on left side of the breast of the prosecutrix and the size of the injury was 1/4" x 1/4" x 1/4" muscle deep. He has categorically stated that the injury could be inflicted by knife article No. 5. According to Dr. Khot (PW 6), the size of the injury was 1/2" x 1/2" x 1/2" spindle shape caused by sharp weapon like article No. 5. Considering the discrepancy, the benefit would go to the accused and naturally the injury shown by Dr. Goyal (PW 11) to be less serious will have to be accepted while considering this case. Thus, considering the nature of the injury no doubt the blow of knife was aimed at the chest, the fact remains that the prosecutrix sustained muscle deep injury which is simple in nature and as such it cannot be inferred that the accused had intended to cause injury which will result in death nor an inference can be drawn that he intended to cause such injury as he knew it to be likely to cause death and it was sufficient in ordinary course of nature to cause death or that he knew that his act was so imminently dangerous that it must in all probability cause death or cause an injury as is likely to cause death. It is to be noted that a single blow with less force was given on the person of prosecutrix and the fact proved in our opinion constitute offence under Section 324 of the Indian Penal Code and not under Section 307 of the Indian Penal Code. Therefore, we hold the accused guilty of offence punishable under Sections 354 as well as 324 of the Indian Penal Code. We also notice that the way in which the learned trial Judge appreciated the evidence in the instant case shows that the evidence was not viewed from correct perspective. Perverse finding based on erroneous appreciation of the evidence has been recorded which resulted in serious miscarriage of justice. The judgment and order of acquittal thus deserves to be reversed and appeal deserves to be allowed. Coming to the point of sentence, in our opinion, the following sentence would adequately meet the ends of justice. Hence we pass the following order.

21. Appeal is allowed. The judgment and order dated 31-5-1983 passed by the learned Extra Additional Sessions Judge, Ahmednagar in Sessions Case No. 46 of 1983 is quashed and set aside. The accused is convicted of offence punishable under Section 354 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. The accused is further convicted of offence punishable under Section 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. Both the sentences shall run concurrently. The accused to surrender to his bail bonds to receive the sentence. Set off under Section 428 of the Criminal Procedure Code is allowed from 22-3-1983 to 26-4-1983.