Raju S/O Uttam Wanjari (In Jail) vs State Of Maharashtra, Thr. P.S.O. ...
2016 Latest Caselaw 6297 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                                
                          NAGPUR BENCH, NAGPUR.

                        Cri.  Revision Application No. 155 of 2016 




                                                                                        
    Raju s/o Uttam Wanjari,
    Aged about : 43 yars,
    Occ : Labourer,




                                                                                       
    R/o Sonala, Tah & Dist. Akola.                                        ....              APPLICANT

                                                  // VERSUS //




                                                                     
    State of Maharashtra,
    Through Police Station Officer,          
    Police Station, Borgaon Manju,
    Tah. and Dist. Akola.                                                 ....              RESPONDENT
                                            
    ----------------------------------------------------------------------------------------------------
    Shri U. J. Deshpande, Advocate for the applicant.
    Shri V. P. Gangane, APP for Respondent-State.
    ----------------------------------------------------------------------------------------------------
             


                                                   Coram:  S. B.  Shukre, J.

                                                   Dated :     October 24, 2016

    ORAL JUDGMENT :

1. This revision application questions the legality and correctness of the Judgment and order dated 31 st August, 2016 rendered in Criminal Appeal No.12/2010 by the Additional Sessions Judge, Akola, thereby confirming the Judgment and order of conviction of the revision

applicant passed by the Judicial Magistrate, First Class, Akola in SCC No.9968/2009 on 13/01/2010.

2. The applicant originally belongs to village Sonala to which complainant or victim of crime belongs. He, however, left the village in the year 2006 by selling his agricultural land and started doing the job in

18.revn.155.16.odt

Akola. He, however, used to visit village Sonala intermittently. On

28/09/2006, he visited village Sonala. It has been alleged that on that date at about 10.30 a.m., when the complainant was carrying a tiffin for

her agriculturist-husband, while walking through the field of one Shri Agrawal, the applicant suddenly appeared before the complainant and

holding her left hand, he tried to drag her to the spot slightly away from the walk-way. The appellant then pulled her down on the ground and tried to molest her. Attempt of molestation was resisted by the

complainant. As she shouted for help, the applicant ran away from the spot. Going near her husband, the complainant narrated to him as to

what was done to her by the appellant. In the evening, the couple went to Police Station, Borgaon Manju and lodged a report against the

appellant. The offence punishable under Section 354 of IPC was registered against him and was investigated into. Charge sheet for the said offence was filed and the applicant was tried by the learned Judicial

Magistrate, First Class for the same. On merits of the case, the learned

Magistrate found that the offence of outraging the modesty of complainant punishable under Section 354 of IPC was proved and

consequently, the applicant was directed to suffer rigorous imprisonment for six months and also to pay a fine of Rs.1,500/-, in default, to suffer further R.I. for one month.

3. The matter was carried before the Sessions Court by filing an appeal being Criminal Appeal No.12/2010. The learned Additional Sessions Judge, Akola, who decided the appeal, found that the view taken by the learned Judicial Magistrate was correct in law and therefore, confirmed the finding regarding guilt of the appellant for an offence punishable under Section 354 of IPC. However, the learned

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Additional Sessions Judge found that leniency was required to be shown

to the applicant and therefore, by the Judgment and order dated 31st August, 2016, he reduced the substantive sentence of imprisonment from

six months to three months. Sentence as regards fine, was however, maintained.

4. On considering the impugned Judgments and orders as well as the record of the case, I find that there is substance in the argument of

the learned counsel for the applicant that both the courts below have not considered at all the fact that the evidence of the victim of crime, PW-4

required corroboration from the other witnesses or circumstances, and it was not there on record and that the argument of learned APP for the

State that no interference with the impugned Judgment and Order is called for, cannot be accepted.

5. This is a case based upon the sole testimony of the

complainant PW-4. Admittedly, she has stated that at about 11.30 a.m. on 28/09/2016, she was dragged aside and was brought down on the

ground with a view to outrage her modesty by the applicant. At that time, admittedly, the material prosecution witness PW-3 Anil was not present there. The incident was not witnessed by PW-3 Anil. Of course, PW-3 Anil states that immediately after the incident, his wife PW-4, did

narrate to him what was done to her by the applicant, thereby showing that conduct of the complainant was natural. But, this is the only factor, which appears to be going in favour of the prosecution. There are other factors which, in my opinion, create a doubt about the testimony and even conduct of the complainant.

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6. One such factor which is material one, is about the strained

relations between the complainant's husband on the one hand and the applicant, on the other. The complainant and her husband have admitted

that prior to this incident, the applicant had initiated proceedings against them for preventive action under Section 107 of Cr. P. C. because of

which, their relations were not cordial. The proceedings so initiated were against their relatives also. Therefore, there was a possibility of not only the complainant but also, her husband having a grudge against this

applicant, which may have resulted in filing a report containing facts, which actually may not have taken place. In order to rule out this

possibility, it was necessary for the prosecution to have produced on record some more evidence, so that evidence of the complainant could

be said to be inspiring confidence of the Court. The conduct of the prosecutrix, which has been tried to be shown natural in this case becomes doubtful when we consider the fact that the proceedings under

Section 107 of Cr. P.C were filed against the husband of the

complainant. So, the other evidence which could have perhaps thrown light upon the real incident in this case, could have been in the nature of

circumstantial evidence and supported by evidence of independent witness. The spot panchanama vide Exh. 11 shows that the broken pieces of bangles recovered from the spot were duly proved by the prosecution through the evidence of PW-5 Sudhakar. He was also the Investigation

Officer. But, there is no evidence available on record to show that these broken pieces of bangles belonged to the complainant PW-4. The complainant has not stated in her evidence that after she was forcibly brought down on the earth by the applicant, the bangles that she was wearing at that time, got broken and their pieces fell on the ground. In fact, she has not stated that at that time, she was wearing any bangles.

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So, the questions would be how these broken pieces of bangles were

recovered from the spot of incident and to whom they belonged ? The questions have remained unanswered in this case.

7. The incident, admittedly, took place in the field of one

Agrawal. At the time of incident, two labourers Manda and Kanta Meshram were performing labour operation in that field. It appears that the Investigating Officer has not recorded statements of these labourers

during the course of the investigation. It also appears that no proper enquiry was made by the Investigating Officer while conducting

investigation of the case.

8. All these facts and circumstances of the case have not been considered at all by both the Courts below in their proper perspective which has resulted in reaching wrong conclusions. The findings of

conviction and sentence having been not borne out from record, cannot

be sustained.

9. Revision Application is allowed.

10. In the result, the impugned Judgments and orders are hereby quashed and set aside. The applicant is acquitted of the offence

punishable under Section 354 of IPC. The applicant be released forthwith, if not required in any other case. The fine of amount, if paid, be refunded to the applicant.

JUDGE Choulwar