Naushad Chhotekha vs The State Of Mah.Thr.Pso Amravati
2017 Latest Caselaw 8195 Bom

 apeal32.06.J.odt                          1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                      CRIMINAL APPEAL NO.32 OF 2006

          Naushad s/o Chhotekha,
          Aged about 23 years,
          R/o Memon Colony,
          Bhosa Road, Yavatmal.                             ....... APPELLANT

                                   ...V E R S U S...

          The State of Maharashtra,
          through P.S.O., Dattapur,
          (Dhamangaon Rly.,), 
          District Amravati.                                 ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri Abdul Subhan, Advocate holding for Shri F.T. Mirza,
          Advocate for Appellant.
          Shri A.V. Palshikar, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          CORAM:           ROHIT B. DEO, J. 

 DATE OF RESERVING THE JUDGMENT                                      :      11.10.2017
 DATE OF PRONOUNCING THE JUDGMENT                                    :      13.10.2017




 1]               The appellant is aggrieved by the judgment and order

dated 28.11.2005 in Special Case 2/2002 delivered by the 2nd

Ad-hoc Additional Sessions Judge, Amravati, by and under which,

the appellant (hereinafter referred to as "the accused") is

convicted of offence punishable under section 354 of IPC and is

sentenced to suffer rigorous imprisonment for six months and to

payment of fine of Rs.500/-. The accused is also convicted of

offence punishable under section 506 of IPC and is sentenced to

suffer rigorous imprisonment for three months and to payment of

fine of Rs.200/-. The accused is however, acquitted of offence

punishable under section 3(i)(xi) of Scheduled Caste and

Scheduled Tribes (Prevention of Atrocities) Act.

2] Shri Abdul Subhan, the learned counsel for the

accused submits that the entire trial is vitiated due to

non-compliance with Rule 7 of Scheduled Caste and Scheduled

Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred

to as "the rules"). Shri Subhan submits that the investigation is

not conducted by a Police Officer of the rank of Deputy

Superintendent of Police (Dy.S.P. for short). Shri Subhan relies on

a Division Bench judgment of Andhra Pradesh High Court in

Viswanadhula Chittibabu vs. State of Andhra Pradesh 2002 LawSuit

(AP) 1344.

3] In rebuttal, Shri Palshikar, the learned Additional

Public Prosecutor would submit that the grievance of the accused

is absolutely misconceived, since the investigation was conducted

by an Officer of the rank of Sub-Divisional Police Officer who is

not below the rank of Dy.S.P. The learned A.P.P. would submit

that no suggestion is given to P.W.3 Hansraj Meshram who

deposed that the offence was investigated by S.D.P.O. Meshram,

that the said Officer is of the rank lower than Dy.S.P. The learned

A.P.P. would submits that the accused is acquitted of offence

punishable under section 3(i)(xi) of Scheduled Caste and

Scheduled Tribes (Prevention of Atrocities) Act and the Division

Bench judgment of the Andhra Pradesh High Court is

distinguishable since in that case the accused was convicted of

offence punishable under section 3(i)(xi) of Scheduled Caste and

Scheduled Tribes (Prevention of Atrocities) Act.

4] Shri Subhan, the learned counsel for the accused

would urge that the conviction recorded by the learned Special

Judge is against the weight of the evidence on record. P.W.2

Yasmin who was accompanying the complainant P.W.1 when the

accused allegedly outraged the modesty of P.W.1, has not

supported the prosecution, is the submission. Shri Subhan invites

my attention to certain omissions in the evidence of P.W.1.

However, the omissions brought to my attention are not

significant and material and pertain to co-lateral and peripheral

facts and circumstances. The credibility of the testimony of P.W.1

is not dented by the omissions to which my attention is invited by

the learned counsel for the accused.

5] The case of the prosecution hinges on the testimony

of the complainant who is examined as P.W.1 since the only other

witness to the incident did not support the prosecution.

The testimony of the complainant is broadly consistent with the

First Information Report Exh.19. P.W.1 has deposed that on the

date of the incident, which was the market day, P.W.1 and Yasmin

had been to the market. On the way back, near the lane of Laxmi

Dal Mill, the accused accosted her from behind, caught her hand,

pressed her mouth and breasts. The accused threatened to kill

P.W.1 if she raised an alarm, is the deposition. P.W.1 has deposed

that P.W.2 Yasmin ran away due to fear. She started weeping and

shouting. One Balu Jare and the parents of P.W.1 came to the spot

to whom P.W.1 narrated the incident and the report was lodged at

09:15 p.m. on 05.09.2001.

6] In the cross-examination P.W.1 has denied the

suggestion that due to darkness, she has not correctly identified

the accused. She has also denied the suggestion that due to

dispute with the accused, she has falsely implicate the accused.

7] The evidence of the complainant P.W.1 has withstood

the test of the cross-examination. I find her testimony implicitly

reliable and confidence inspiring. A vague suggestion is given to

P.W.1 that due to a dispute she is falsely implicating the accused.

However, nothing is brought on record by the accused to suggest

the existence of inimical terms between P.W.1 and the accused.

It is true that P.W.2 admits that her mother resides near the house

of the accused and the inter se relations are not good.

However, the existence of bad blood is a double edged sword and

may as well the motive for the accused to outrage the modesty of

P.W.1 to spite her mother. I am not persuaded to agree with the

learned counsel for the accused that the admission that the terms

of the mother of P.W.1 and the accused are not good necessarily

renders the evidence of P.W.1 suspect.

8] The prosecution has proved the offence punishable

under section 354 of IPC beyond reasonable doubt.

9] The learned Special Judge has acquitted the accused

of offence punishable under section 3(i)(xi) of Scheduled Caste

and Scheduled Tribes (Prevention of Atrocities) Act on the ground

of violation of Rule 7 of the rules. However, since the State has

not challenged the acquittal, I refrain from making any further

observations on the finding recorded that the investigation is not

conducted by an Officer of the rank of Dy.S.P.

10] Shri Subhan, the learned counsel for the accused then

contends that the sentence awarded is harsh. The accused was

then only 20 years old and deserves leniency, is the submission.

11] In State of Madhya Pradesh vs. Surendra Singh, (AIR

2015 SC 3980), based on the theory of proportionality, it is laid

down by Hon'ble Apex Court that, "Undue sympathy to impose

inadequate sentence would do more harm to the justice system to

undermine the public confidence in the efficacy of law. It is the duty

of every court to award proper sentence having regard to the nature

of the offence and the manner in which it was executed or

committed. The sentencing courts are expected to consider all

relevant facts and circumstances bearing on the question of sentence

and proceed to impose a sentence commensurate with the gravity of

the offence. The court must not only keep in view the rights of the

victim of the crime but also the society at large while considering the

imposition of appropriate punishment. Meager sentence imposed

solely on account of lapse of time without considering the degree of

the offence will be counter productive in the long run and against the

interest of the society. One of the prime objectives of criminal law is

the imposition of adequate, just, proportionate punishment which

commensurate with gravity, nature of crime and the manner in

which the offence is committed. One should keep in mind the social

interest and conscience of the society while considering the

determinative factor of sentence with gravity of crime.

The punishment should not be so lenient that it shocks the

conscience of the society. It is, therefore, solemn duty of the court to

strike a proper balance while awarding lesser sentence encourages

any criminal and, as a result of the same, the society suffers.

Imposition of sentence must commensurate with gravity of offence."

12] The submission that the accused deserves leniency

must be noted only for rejection. The act of accosting P.W.1 and

pressing her mouth and breasts is reprehensible. To my mind, the

learned Special Judge has been extremely lenient in sentencing

the accused to only six months rigorous imprisonment.

Any reduction of the sentence would erode public confidence in

the justice dispensation system.

13] The appeal is sans substance and is dismissed.

14] The accused be taken into custody forthwith to serve

the sentence and a compliance report be submitted to the Registry

of this Court within four weeks.

15] The bail bond of the accused shall stand cancelled.

JUDGE

NSN