Dadarao S/O Nathuji Gote vs The State Of Mah.Thr.The Psocity, ...
2017 Latest Caselaw 1702 Bom

 CRI. APPEAL NO.13.02.odt                      1
     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                     CRIMINAL APPEAL NO.13 OF 2002


 Dadarao s/o Nathuji Gote,
 Aged about 40 years,
 R/o. Gandhi Nagar, Wardha,
 Tahsil and District-Wardha.                        ..               APPELLANT

                                .. VERSUS ..

 State of Maharashtra,
 Through the P.S.O.
 City Police Station, Wardha.                       ..           RESPONDENT



                     ..........
 Shri R.M. Patwardhan, Advocate for Appellant,
 Shri I.J. Damle, APP for Respondent-State.
                     ..........


                                CORAM : KUM. INDIRA JAIN, J.

DATED : APRIL 13, 2017.

ORAL JUDGMENT

This appeal takes an exception to the judgment

and order dated 18.12.2001 passed by the learned Ad-hoc

Special Judge, Wardha in Special Case No.2/1998 thereby

convicting the sole accused of the offence punishable under

section 354 of the Indian Penal Code and sentencing him to

suffer rigorous imprisonment for one year and fine of

Rs.300/- in-default rigorous imprisonment for one month.

2] Prosecution case which can be revealed from the

chargesheet and connecting papers thereto may be stated

in brief as under :

(a) Complainant Anita Fulmali, aged about 23

years, was resident of Station Fail, Wardha.

She was serving as Home-Guard. On

1.4.1995 at around 6.30 pm, she along with

her sister Rajani and friend Padma was

proceeding towards her house from Mahavir

Photo Studio. When they reached near

Wardha Bus Stand, accused came from

opposite direction and pressed her breast by

one hand. He was caught hold by

complainant, her sister and friend. He was

brought to Wardha Police Station.

Complainant lodged report.

(b) Crime No.162/1995 was registered against

the accused for the offence under Sections

354 of the Indian Penal Code and 3(1)(x) of

the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989.

Investigation was taken over by PSI Baliram

Daberao. He recorded spot panchanama in

the presence of panch witnesses and

handed over further investigation to ASI

Vasant Borle.

(c) Investigating Officer recorded statements of

witnesses. Caste certificate of complainant

was collected. It was found that she

belonged to 'Mahar' caste. On completion

of investigation, chargesheet was submitted

to the learned Chief Judicial Magistrate,

Wardha, who in turn, committed the case for

trial to the Court of Sessions.

3] On committal, Sessions Court framed the charge

against the accused vide Exh.11. He pleaded not guilty and

claimed to be tried. His defence was of total denial and

false implication. He submitted that due to

misunderstanding and mis-identity, report came to be

lodged against him. His post conduct in accompanying the

complainant to Police Station speaks of his innocence.

4] Prosecution examined in all four witnesses in

support of its case. Considering the evidence of prosecution

witnesses and submissions made on behalf of the parties,

trial court came to the conclusion that offence under section

354 of the Indian Penal Code was made out against the

accused and convicted and sentenced him as stated above.

For the offence under the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, accused was

found not guilty and was acquitted.

5] Heard Shri Patwardhan, learned counsel for the

appellant and Shri Damle, learned Additional Public

Prosecutor for the respondent-State. With the assistance of

the learned counsel for the parties, this court has gone

through the evidence of prosecution witnesses.

6] On meticulous evaluation and close scrutiny of the

evidence of star witnesses, this court, for below mentioned

reasons, is of the view that offence under section 354 of the

Indian Penal Code is not proved beyond reasonable doubt

against the accused/appellant.

7] PW-4 Anita Fulmali is complainant. She stated that

on 1.4.1995 at about 6.30 pm, she along with her sister and

one Padma was proceeding to the house from Mahavir Photo

Studio. She states that when they reached in front of S.T.

Bus Stand and were on the left side of the road, accused

came there and pressed her left breast forcibly. She caught

hold him and took him to Police Station. She stated that she

lodged report vide Exh.20.

In the cross-examination, complainant admits that

there was rush of people in front of S.T. Bus Stand at the

relevant time. She admits in unequivocal terms that she did

not raise alarm when incident occurred. According to her,

persons did not gather on the spot, when she caught hold

the accused. She carried the accused inside the Police

Station and her sister Rajani and friend Padma stood outside

the Police Station. Prosecution did not examine Padma, one

of the eyewitness of the incident.

8] PW-1 Rajni is sister of complainant Anita. She

supports the version of complainant and further adds that

after accused pressed breast of Anita, she slapped him.

There is no whisper in the evidence of Anita that she

slapped the accused after the occurrence. Like Anita, Rajni

also admits in her cross-examination that there was rush of

people at the S.T. Stand. Contrary to the evidence of Anita,

Rajni says that Anita raised hue and cry at the time of

outraging her modesty, but persons did not gather there.

Anita in clear terms admits that she did not raise alarm. It

has come in the cross-examination of Rajni that accused, on

his own accord, accompanied them to Police Station.

According to Rajni, Padma did not come with them to Police

Station. Anita says that Padma was standing outside. Rajni

admitted that accused was saying that he had not outraged

the modesty of Anita and he is not aware who was

responsible for the act. Accused also disclosed to them that

he was serving in police department.

9] The facts elicited in cross-examination of Rajni

would indicate the post occurrence conduct of the accused.

If really he was guilty, he on his own would not have

accompanied the complainant and her sister to Police

Station. Moreover the evidence of Anita and Rajni is not

consistent on the genesis of the prosecution case.

10] In view of inconsistencies brought in the cross-

examination of Anita and Rajni, it would be essential to

search for independent corroboration to the testimony of

complainant. Though it has come on record that the place

of occurrence was a crowded place, prosecution did not

examine independent witnesses. Padma, an eyewitness to

the incident, has been kept away from the witness box for

the reasons best known to the prosecution. For want of

independent corroboration, it would be risky to rely upon the

testimonies of complainant and her sister.

11] In the light of above, this court finds that defence

raised by the accused that due to misunderstanding,

a report came to be lodged is most probable and

acceptable. Hence, impugned judgment and order of

conviction and sentence is unsustainable. Accordingly,

the following order is passed :

(i) Criminal Appeal No.13 of 2002 is allowed.

(ii) Impugned judgment and order of conviction and

sentence dated 18.12.2001 passed by the learned Ad-hoc

Special Judge, Wardha in Special Case No.2/1998 is quashed

and set aside.

(iii) Accused-appellant is acquitted of the offence

punishable under Section 354 of the Indian Penal Code.

(iv) His bail bond shall stand cancelled forthwith.

(v) Fine, if paid, shall be refunded to the appellant.

(Kum. Indira Jain, J.)

Gulande, PA