Bombay High Court
Shankar S/O Tulshiram Kakad vs State Of Maharashtra,Thr.Its ... on 27 September, 2017
Bench: Swapna Joshi
1 Judg 270917 apeal 32.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.32 of 2003
Shankar Tulshiram Kakad
Aged about 47 Years,
R/o.- Punoti Khurd, Tahsil Barshi Takli,
District Akola. .... Appellant.
-Versus-
The State of Maharashtra,
through its Police Station Officer Akola. .... Respondent.
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Mr. A.R. Deshpande, Counsel for appellant.
Mr. N.H. Joshi, Additional Public Prosecutor for respondent/State.
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Coram : Mrs. Swapna Joshi, J.
Dated : 27th
September, 2017.
ORAL JUDGMENT
This appeal has been preferred by the appellant
(hereinafter will be referred as 'the accused') against the judgment and
order passed by the learned Adhoc Additional Sessions Judge, Akola
in Sessions Trial No.68 of 2002 on 19-12-2002, whereby the learned
trial Judge had convicted the accused for the offence punishable under
Section 354 of the Indian Penal Code and sentenced to suffer rigorous
imprisonment for one year and to pay a fine of Rs.500/-, in default, to
suffer simple imprisonment for three months.
2] I have heard Mr. A.R. Deshpande, the learned counsel for
the appellant and Mr. N.H. Joshi, the learned Additional Public
Prosecutor for the respondent/State. With their assistance, I have
carefully gone through the record of the prosecution case.
2 Judg 270917 apeal 32.03.odt
3] The facts leading to prefer this appeal can be summarised
as under :-
Complainant (PW-1) is the resident of village Punoti
Khurd. The accused is also the resident of the same village and he
was Police Patil at the time of incident. The complainant (PW-1) was
residing with her husband Shantaram and in-laws at village Punoti
Khurd. The father-in-law of the complainant (PW-1) was having an
agricultural land of two and a half acres, at village Punoti Khurd. The
complainant (PW-1) and her husband used to cultivate that field so
also they used to work in the field of other field owners. On the day of
incident i.e. on 29-10-2001, the husband of the complainant (PW-1)
had gone out of station. At about 5.00 to 6.00 pm, when the
complainant (PW-1) was proceeding towards her field, after finishing
her work in the field of other field owners, the accused followed her
and on seeing her alone, caught hold of her hand with intention to
outrage her modesty. As a result of which, her glass bangles were
broken. The complainant (PW-1) raised an alarm and managed to
separate her from the clutches of the accused. The complainant (PW-
1) then returned to her house. The husband of the complainant (PW-1)
returned back home on 31-10-2001. Thereafter, complainant (PW-1)
along with her husband proceeded to Police Station Barshi Takli and
lodged her written complaint against the accused on 01-11-2001.
4] On the basis of the said report, PSI Deshmukh (PW-5)
registered the offence. On 01-11-2001, PW-6-SDPO Mr. S.L. Sanghu
visited the place of incident and recorded the spot panchanama
(Exhibit-16). PW-6 arrested the accused on 08-11-2001. After
completion of investigation, he submitted the chargesheet in the Court
of learned JMFC Barshi Takli. The case was committed to the Court of
Sessions. The learned trial Judge framed the charge and after
adducing the evidence and hearing both the sides, the learned trial
3 Judg 270917 apeal 32.03.odt
Judge convicted the accused as aforesaid. Hence, this appeal.
5] Mr. A.R. Deshpande, the learned Counsel for the
appellant vehemently argued that the learned trial Judge has not
considered the testimony of the witnesses in right perspective and has
convicted the accused erroneously.
6] Mr. N.H. Joshi, the learned APP, contended that the
learned trial Judge has rightly convicted the accused after considering
the entire evidence on record.
7] In order to verify the rival contentions of both the sides, it
would be advantageous to go through the evidence led by the
prosecution. The prosecution heavily relied upon the testimony of
(PW-1) who is the complainant as well as the victim. According to
complainant (PW-1), she knows the accused, as he is the Police Patil
of village Punoti Khurd. According to her, on the date of incident, she
had gone to field of other field owners for plucking cotton and returned
home at about 4.00 pm. While she was proceeding to her own field
from Gaothan, the accused followed her and he came in front of her
and caught hold of her hand and asked her to come towards the river.
On this, the complainant (PW-1) gave a jerk to her hand and returned
home. The complainant (PW-1) stated that since the accused caught
hold of her hand, her bangles were broken. At the relevant time, she
had put on yellow colour bangles. Complainant (PW-1) deposed that
after returning home, she informed the incident to her father-in-law and
mother-in-law. They advised her to wait for her husband. Her husband
returned back after about three days. Thereafter, the complainant (PW-
1) along with her husband proceeded to the Police Station and lodged
the complaint (Exhibit-10).
8] During the cross examination, it was suggested to the
complainant (PW-1), which she denied that she along with her
husband used to go to the field of the accused and work on wages.
4 Judg 270917 apeal 32.03.odt
PW-1 however admitted that she used to go on wages to the field of
relatives of the accused. It was suggested to complainant (PW-1) that
the labourers used to return home together, on completion of the work
in the field, on whose field they used to work on wages. Complainant
(PW-1) admitted that along with other labourers, she had returned to
her residence at about 6.00 pm from the field of Vasanta. Complainant
(PW-1), however, immediately clarified that on the day of incident, she
returned home at about 4 pm from the field of Vasanta. In my opinion,
the said discrepancy does not go to the root of the case and the fact
remains that, on the day of incident, after finishing her work from the
other field, she proceeded to her own field at about 4.00 pm. Thus, in
view of the said version of complainant (PW-1), it is amply clear that
complainant (PW-1) did not return home immediately from the other's
field to her residence but while she was proceeding from other's field
i.e. Vasanta's field to her field, the alleged incident had taken place. In
view thereof, this discrepancy does not go to the root of the prosecution
case.
9] An improvement was pointed out in the testimony of
complainant (PW-1) that the accused had asked her to come to the
river. In that regard, it can be said that the complainant (PW-1) has
given the details in her evidence about the incident and it is proved
that the accused caught hold of the hand of PW-1 with ill intention. It
was also suggested to PW-1 that she had not narrated the incident to
anyone. However, in that regard, PW-1 has specifically stated that she
disclosed the incident to her father-in-law and mother-in-law. However,
they advised her to wait for her husband. The conduct of the PW-1
was natural one and accordingly she did wait for her husband. The
testimony of PW-1 has not shattered in the cross examination and she
is found to be a reliable and trustworthy witness.
5 Judg 270917 apeal 32.03.odt
10] The learned Counsel for the accused contended that in
the statement of the accused recorded under Section 313 of Cr.P.C.,
the accused has stated that since he was Police Patil of village Punoti
Khurd, and the complainant thought that he should lose the post of
Police Patil, the complainant on the say of her husband, one Baburao
Kakad and some villagers, had lodged a false complaint.
11] So far as the said statement of the accused is concerned,
in that regard, it can be said that no lady under normal circumstances
would lodge a false complaint by putting her reputation and the
reputation of her family at stake level such false accusation.
12] The testimony of complainant (PW-1) is supported by the
spot panchanama. The spot panchanama was recorded by PW-6-
S.D.P.O. Mr. Sanghu. According to PW-6, the complainant had shown
the spot of incident to him which was on the way leading from
Gaothan towards the field of Anna Kakad. The pieces of yellow and
white bangles were found at the place of incident. PW-6 took charge
of those pieces of bangles in the presence of panchas and prepared
panchanama (Exhibit-16). The panchanama reveals that broken pieces
of glass bangles found at the place of incident were similar in diameter
to that of the bangles in the left hand of the complainant. Thus, the
panchanama (Exhibit-16) which is an contemporaneous document,
corroborates with the testimony of complainant (PW-1).
13] The testimony of PW-4-Shantaram shows that two days
prior to the incident PW-4 went to Pathort and on the next day of
incident, in the evening, he returned from the Pathrot. At that time, his
wife informed him about the incident and on the next day at about 8.00
am, they proceeded to Barshi Takli Police Station and complainant
(PW-1) lodged her complaint. A discrepancy was pointed in his version
that PW-4 has stated that 2 days prior to the incident, he went to
Pathrot & he returned back home, on the next day of the incident.
6 Judg 270917 apeal 32.03.odt
Whereas according to PW-1, 2 to 3 days prior to the incident, her
husband had gone to Pathrot & he returned home, about 3 days after
the incident. However, in my opinion, the said discrepancy does not go
to the root of the case. PW-1 & PW-4 being rustic witnesses
belonging to the village area must have stated in this manner. Neither
complainant (PW-1) nor PW-2-Ramesh specifically stated the dates
as to when PW-4-Shantaram returned home from his work. In view
thereof, the said discrepancy does not go to the root of the prosecution
case and does not make the prosecution case doubtful as such. In
fact there was no reason for PW-1 & PW-4 to falsely implicate the
accused in such an offence, by putting their reputation at stake. Thus,
in view of the facts and circumstances, it is held that the prosecution
has proved its case beyond reasonable doubt.
14] A useful reference of the judgment of the Hon'ble apex
Court in case of Premiya @ Prem Prakash v. State of Rajasthan,
reported in 2008(12) Scale, 739 can be made. The paragraphs 12 and
13 therein are reproduced below:-
"12. In order to constitute the offence under
Section 354 IPC mere knowledge that the modesty
of a woman is likely to be outraged is sufficient
without any deliberate intention of having such
outrage alone for its object. There is no abstract
conception of modesty that can apply to all cases.
(See State of Punjab v. Major Singh (AIR 1967 SC
63). A careful approach has to be adopted by the
court while dealing with a case alleging outrage of
modesty. The essential ingredients of the offence
under Section 354 IPC are as under:
(i) that the person assaulted must be a woman;
(ii) that the accused must have used criminal
force on her; and
(iii) that the criminal force must have been used
on the woman intending thereby to outrage
her modesty.
13. Intention is not the sole criterion of the
7 Judg 270917 apeal 32.03.odt
offence punishable under Section 354 IPC, and it
can be committed by a person assaulting or using
criminal force to any woman, if he knows that by
such act the modesty of the woman is likely to be
affected. Knowledge and intention are essentially
things of the mind and cannot be demonstrated like
physical objects. The existence of intention or
knowledge has to be culled out from various
circumstances in which and upon whom the alleged
offence is alleged to have been committed. A victim
of molestation and indignation is in the same
position as an injured witness and her testimony
should receive the same weight."
15] The accused took undue advantage of the situation that
the prosecutrix was proceeding alone towards her field. He caught
hold of her hand, with a knowledge that due to the said act, the
modesty of PW-1 would get outraged & accordingly he committed the
said act. The presence of pieces of bangles of the PW-1 at the place
of incident establishes the case of prosecution beyond reasonable
doubt. The conduct of PW-1 was natural one in not lodging the
complaint against the accused till her husband returned home from
Pusad. In my opinion, the delay has been satisfactorily explained by
PW-1.
16] From the above said discussion, it is noticed that the
learned trial Judge has rightly convicted the accused. There is no
illegality or perversity noticed in the judgment of the trial Court. In view
thereof, the appeal is hereby dismissed. Hence, the following order is
passed:-
O r d e r
(a) Criminal Appeal No. 32 of 2003 is dismissed.
(b) The judgment and order passed by the learned
Adhoc Additional Sessions Judge, Akola in
Sessions Trial No.68 of 2002 on 19-12-2002
8 Judg 270917 apeal 32.03.odt
stands confirmed.
(c) The sentence of appellant for the offences
punishable under Sections 354 of the IPC is
maintained.
(d) The appellant is on bail. His bail bond stands
cancelled. He is directed to surrender
before the learned Adhoc Additional Sessions
Judge, Akola to undergo the remaining
period of sentence. If he does not
surrender within a period of four weeks from
today, the learned trial Court is directed to
take appropriate action in accordance with law.
(e) Muddemal property be dealt with as directed by
trial Court after the appeal period is over.
JUDGE
Deshmukh
