Waman S/O Gulabrao Naik vs State Of Maharashtra
2005 Latest Caselaw 233 Bom

JUDGMENT

S.T. Kharche, J.

1. This criminal revision takes an exception to the judgment and order of conviction dated 20-6-2002 passed by the 1st Additional Sessions Judge in Criminal Appeal No. 60 of 1995 whereby she dismissed the appeal and reduced the substantive sentence from six months rigorous imprisonment to 15 days rigorous imprisonment by maintaining the substantive sentence of fine of Rs. 1,000/- awarded by the trial Court and in default the applicant has been sentenced to undergo simple imprisonment for 15 days.

2. Brief facts are required to be stated as under :

On 10-1-1985 complainant Kusum (P.W. 1) and her husband Manikrao Choudhary (P.W. 3) along with their kids had come to village Adasa in the fair and they had started one hotel there for the purpose of earning money. In the night, this couple along with their children went to take a shelter in a chhapri for night halt. Kusum was sleeping on one side, her husband and kids were sleeping by her side. At about 12 O'clock in the night, the applicant/accused had entered into the bed of Kusum and started fondling her breast and also inserted his hand in the pubic region of Kusum. Consequently she woke up and caught hold the hands of the accused and raised an alarm. Her husband woke up and the accused was caught then and there and was taken to police station Saoner where the prosecutrix lodged the first information report (Ex. 15), on the basis of which Crime No. 5/85 for the offence punishable under Section 354 of Indian Penal Code was registered. On completion of investigation the charge-sheet was filed in the Court of learned J.M.F.C.

3. Only three witnesses have been examined by the prosecution, namely prosecutrix Kusum (P.W. 1), Baliram (P.W. 2) and her husband Manik (P.W. 3). The learned Magistrate on appreciation of the evidence has recorded the finding that the prosecution has successfully proved that the accused did commit an offence punishable under Section 354 of Indian Penal Code and consistent with this finding he sentenced the accused to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for three months. This judgment and order of conviction passed by the learned Magistrate was challenged before the learned Sessions Judge in Criminal Appeal No. 60 of 1995. The learned 1st Additional Sessions Judge on hearing the learned counsel for the parties and on re-appreciation of the evidence confirmed the finding of the learned Magistrate that the accused has outraged the modesty of the prosecutrix but she was of the view that the sentence is liable to be modified in the given facts and circumstances. Therefore, she dismissed the appeal and modified the substantive sentence of rigorous imprisonment of six months to fifteen days rigorous imprisonment. The learned Additional Sessions Judge maintained the sentence of fine of Rs. 1000/- and directed that in default of payment of fine the accused shall undergo simple imprisonment for 15 days. This order passed by the learned Additional Sessions Judge is under challenge in this revision.

4. Mr. Thomas, learned counsel, for the applicant contended that the prosecutrix has mentioned in her report the specific words "chhedkhani karu lagla" and except these words, she did not state the details of alleged chhedkhani. The learned Magistrate has not attached any importance to the exaggerations that have been brought in the cross-examination of the prosecutrix and moreover her husband being an interested witness is bound to support her version. He contended that the testimony of the interested witness along with the shaky evidence of the prosecutrix is liable to be discarded and the benefit of doubt should be given to the accused. In support of these submissions, he relied on the decision of Supreme Court in the case of Hanuman v. State of Haryana, AIR 1977 SC 1614 wherein it has been held that the prosecutrix has somewhat exaggerated the story and the benefit thereof was given to the accused and it was held that it was appropriate to alter the conviction from Section 352 to 354 of Indian Penal Code.

5. The learned A.P.P. contended that the testimony of the prosecutrix Kusum would clearly indicate that the presence of the accused on the spot of incident has not been denied and her deposition would clearly indicate that the accused had entered into the bed of the prosecutrix in the shed and also started moving his hand in her pubic region. He contended that the accused was caught then and there with the help of the husband of the prosecutrix on the alarm raised by her and he was immediately taken to the police station where the prosecutrix had lodged the first information report. He contended that prompt lodging of the report would indicate that there was no scope for concoction, embellishment and embroideries. He contended that since the evidence of the prosecutrix has been corroborated by the evidence of her husband and also by the contents of the first information report, the learned Additional Sessions Judge was perfectly justified in confirming the judgment and order of conviction for the offence punishable under Section 354 of Indian Penal Code. No fault could be found with the impugned judgment and order of conviction and the revision may kindly be dismissed.

6. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. This Court has also perused the depositions of the prosecutrix and her husband. The prosecutrix has stated that the incident occurred about ten years back at village Adasa where they had gone for the purpose of attending a fair and her husband had installed a hotel for earning the livelihood. The incident occurred in the mid night at about 12 O'clock. She and her husband on finishing their meal were sleeping in the shed of one person along with their kids. Her husband and children were sleeping by her side at some distance. The accused had entered into her bed and then had put his hand in her pubic region and also fondled her breast. She woke up and raised an alarm by which her husband also woke up and he caught hold of the accused and thereafter she lodged the first information report at the police station.

7. It is true that in the cross-examination the prosecutrix admitted that she did not specifically state before police that the accused had entered into her bed and she had seen the accused and that the accused had also fondled her breast. Perusal of the first information report would reveal that she has specifically mentioned in the report that on the date of incident in the night at about 12 O'clock, one person had come near her and started chhedkhani and started moving his hand in her pubic region. She woke up and shouted because of which her husband also woke up and he caught hold the accused then and there. In such a situation, simply because the prosecutrix did not make a mention of specific words in the first information report, it did not follow that her evidence is full of exaggeration and improvements.

8. The accused was not known to the prosecutrix prior to the incident and when his presence at the spot of incident has not been disputed and when the first information report has been lodged promptly in the same night without any loss of time, it would be clear that there was no possibility of concoction, embellishment and embroideries. There is no reason as to why the prosecutrix would implicate the accused falsely in this case even when she had no axe to grind against him.

9. Charge under Section 354 is the one which is very easy to make and very difficult to rebut and when such a charge is made, it is necessary to see whether it is supported by independent evidence besides that of woman herself or is corroborated by her conduct and the surrounding circumstances and is consistent with ordinary probabilities. The essence of a women's modesty is her sex. The modesty of an adult woman is writ large on her body young or old intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under Section 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant. In this case the accused with a corrupt mind entered into bed of the prosecutrix and stealthily touched the pubic portion of her body with an intention to have a sex with her when she was sleeping and she immediately woke up and therefore, it is clear that the accused has committed an offence punishable under Section 354 of Indian Penal Code and nothing short of it.

10. The evidence of the prosecutrix has been corroborated in material particulars by the evidence of her husband and some minor omissions brought on record in his cross-examination is of no assistance to the accused to show that his evidence is liable to be discarded. The attending circumstances would clearly show that it is the accused and none else who had entered into the bed of the prosecutrix and started moving his hand in her pubic region and, therefore, this Court has no hesitation in coming to the conclusion that the prosecution has established the complicity of the accused and it is obvious that the accused had outraged the modesty of the prosecutrix by moving his hand in her pubic region and that too on entering into her bed.

11. The decision of Supreme Court in Hanuman, AIR 1977 SC 1614, cited supra, on which reliance is placed by the learned counsel for the accused has no bearing on the facts and circumstances of the present case and it is not possible to accept that the evidence of the prosecutrix is full of contradictions and exaggeration. Consequently, this Court is of the considered opinion that no case has been made out for interference and the revision is liable to be dismissed.

12. In the result, the revision is dismissed. The applicant/accused shall surrender to his bail on 7th March, 2005 before the 1st Additional Sessions Judge who shall commit the applicant to the prison for undergoing the sentence. In case the applicant/accused fails to surrender on the date given, the Additional Sessions Judge shall secure his presence through Superintendent of Police and thereafter shall commit him to the prison for undergoing the sentence.