Manoj Kaduba Nade vs The State Of Maharashtra And ...
2023 Latest Caselaw 8211 Bom

2023:BHC-AUG:17010
                                                                                  revn-89-2022 judg.odt
                                                       (1)


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD

                             CRIMINAL REVISION APPLICATION NO.89 OF 2022

                 Manoj s/o Kaduba Nade,
                 Age : 36 years, Occu.: Labour,
                 R/o Annabhau Sathe Nagar,
                 Chikalthana, District Aurangabad.                       ...Applicant

                          VERSUS

                 1.       The State of Maharashtra
                          Through Police Station MIDC CIDCO,
                          Aurangabad, Dist. Aurangabad.

                 2.    Savita w/o Suresh Magare
                       Age : 41 years, Occu.: Household,
                       R/o Annabhau Sathe Nagar,
                       Chikalthana, Aurangabad.                  ...Respondents
                                                ...
                 Mr. Mahesh P. Kale, Advocate for Applicant.
                 Mr. Y.G. Gujarati, APP for Respondent/State.
                 Ms. Poonam V. Bodke Patil, Advocate for Respondent No.2.
                                                   ...

                                                             CORAM : S.G. MEHARE, J.

RESERVED ON : JULY 06, 2023 PRONOUNCED ON : AUGUST 10, 2023

JUDGMENT :-

1. Rule. Rule made returnable forthwith. Heard finally with

the consent of the parties.

2. The accused has preferred this revision under Section

397 r/w 401 of the Criminal Procedure Code against the judgments

and orders of conviction passed in R.C.C. No.1490 of 2013 dated

09.01.2017 by the learned Judicial Magistrate First Class, Court No.6,

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Aurangabad and confirmed in Criminal Appeal No.25 of 2017 by the

learned Additional Sessions Judge, Aurangabad by its judgment and

order dated 28.02.2022.

3. The applicant has been convicted of the offence

punishable under Section 354 of the Indian Penal Code and sentenced

to suffer rigorous imprisonment for one year.

4. The case of the prosecution, in brief, was that the

incident happened on 04.06.2013 at about 09.00 to 10.30 pm in front

of the shop of the victim's husband. Before the alleged incident, the

applicant and other persons were sitting on the platform in front of

the grocery shop of the victim's husband. Since they were creating a

mess, he asked them to get up and go. Thereafter, the petitioner said

to her husband that they would not get up and they would get up

after cutting him. Her husband told the incident to the victim. Then

she asked the petitioner why he said so to her husband. Therefore, the

petitioner rushed at her and started abusing her. He grasped her hair,

pulled her and fell her down and, catching her breast, tore her blouse.

He also kicked her with his legs. She screamed; therefore, her

husband, mother-in-law, father-in-law, and other persons collected

there.

5. Both Courts believed the prosecution evidence and held

the petitioner guilty. The family members supported the prosecution,

but, an independent witness did not support the prosecution. The

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report was lodged the next day with an explanation that when she

was going to lodge the report with her father-in-law, they met with an

accident; hence, they returned and the next day she lodged the

report.

6. The accused had a defence that the grocery bills were

due; hence, the false report was lodged. He also had a defence that

there was a dispute over the flag pole roped in front of house of

victim.

7. Learned counsel for the applicant would argue that the

defence was probable. However, the Courts did not consider it. No

incident as alleged, happened. The incident happened in the spur of

the moment. Therefore, it cannot be said that the petitioner had an

intention to outrage the modesty of the victim. None of the offences

is proven against him. He would rely on the case of Pandurang

Sitaram Bhagwat Vs. State of Maharashtra, (2005) 9 SCC 44 , Raju

Pandurang Mahale Vs. State of Maharashtra and Another, (2004) 4

SCC 371 and Rajesh Swarupchand Kankaria and Ors Vs. The State of

Maharashtra, the decision in Criminal Revision Application No.128 of

2017 with other connected matters of Bombay High Court dated

20.03.2017.

8. Per contra, learned APP would submit that the credibility

of the witnesses has not been impeached. The victim had no reason

to lie against the accused. The delay explained in lodging the report

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was not denied. The defence of the accused was improbable. The

defence of the accused, implicating him falsely in crime for the

amount due for grocery articles, was not proved. Otherwise, also such

a defence is unbelievable. The suggestion to PW-1 that after the

quarrel was over, the co-accused went to her home and requested not

to go to the police station proved the happening of the incident. The

evidence of the victim inspires confidence. Hence, the non-

examination of the neighbours and not supported by another witness

to the prosecution is not fatal. A woman would not put her character

at stake unless there was substance in the case. Outraging modesty is

a lifelong trauma that causes mental agony forever.

9. Considering the rival contentions, a short point falls for

consideration is whether, in given circumstances and proven facts, the

offence under Section 354 of the Indian Penal Code is made out.

10. To constitute an offence under Section 354 of the Indian

Penal Code, the prosecution has to establish the intention of the

accused to outrage or knowing it to be likely that he will thereby

outrage the modesty of a woman. He must have assaulted or applied

criminal force to a woman with intent to outrage her modesty. The

intention and knowledge are the crux of the offence under the said

section. The prosecution has to prove the presence and existence of

the culpable intention and knowledge on the part of the accused. The

intention and knowledge of the accused form his course state of mind.

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It is to be gathered from the circumstances of each case. Looking at

the circumstances, a reasonable man would think that the acts of the

offender were intended or likely to outrage the modesty of a woman.

The term 'intention' means the acts done with the goal of getting

some expected results, and 'knowledge' simply means awareness of

the results or consequences of his acts. An act done with knowledge is

an act done without care.

11. The other ingredients to constitute an offence under

Section 354 of the Indian Penal Code are the 'assault' or the 'use of

criminal force'. The term ' Assault' has been defined under Section

351 of the Indian Penal Code. Its ingredients are; (1) Making of any

gesture or preparation by a person in the presence of another person

and (2) intention or knowledge or likelihood that such gesture or

preparation will cause the person present to apprehend that the

person making it is about to use criminal force.

12. The term 'Criminal force' has been defined under Section

350 of the Code. Its ingredients are; (1) the intentional use of force

on any person, (2) Such force must have been used without the

consent of the person, and (3) the force must have been used (a) in

order to commit an offence; or (b) with the intention to cause or

knowing it to likely that he will cause injury, fear, or annoyance to the

person to whom it is used. The intention and knowledge are the

common thread in 'assault' and 'criminal force'. The assault is the pre-

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stage of the use of criminal force. The simple and plain difference

between these two definitions is that in a criminal force, there would

be physical contact; in assault, physical contact between the accused

and the victim is absent.

13. In the case at hand, it is evident that the petitioner came

into physical contact as he pulled by her hair, kicked her and fell her

down

14. This Court, in the case of Rajesh Swarupchand Kankaria

(cited supra) in para 16, has observed that "for recording a conviction

of the offence punishable under Section 354 of the IPC, it is not

enough merely to show that accused persons assaulted a woman. In

addition thereto, it is also required to establish either, that accused

persons were harbouring intention to outrage the modesty of the

victim who has been assaulted by them. Thus, it is clear that to

constitute an offence under Section 354 of the IPC, an intention to

outrage her modesty must be present. The culpable intention of the

accused is the crux of the matter. Intention is certainly a mental state

of a person, and as such, it is difficult to procure direct evidence to

prove the intention of the accused. Therefore, the intention of the

accused is to be inferred by appreciating the direct act of accused

persons while committing the crime, so also on the basis of

assessment of total evidence keeping in mind the conduct of the

accused person and all other relevant surrounding circumstances.

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However, the intention is not the sole criterion of this offence. It can

also be said to have been committed by the 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."

15. In the case of Raju Pandurang Mahale v State of

Maharashtra and another (2004) 4 SCC 371 , it has been held that

knowledge that modesty is likely to be outraged is sufficient to

constitute the offence without any deliberated intention of having

such outrage alone for its object.

16. The above observation shows that the knowledge that

modesty is likely to be outraged in the absence of intention is

sufficient.

17. In the case of Pandurang Sitaram Bhagwat v State of

Maharashtra (2005) 9 SCC 44, the Hon'ble Supreme Court held that

convicting the accused alone under section 354 on the ground

ordinarily a lady would not "put her character at stake" cannot be

universally applied. Each case has to be determined on the touchstone

of the factual matrix thereof.

18. In the case at hand, it appears that since the victim

questioned the accused, he started abusing her, he grasped her hair

and fell her down and pressed her breast and tore her blouse. It is

also evident that the incident happened in a public place. Her

husband and father-in-law corroborated her. There was nothing in

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rebuttal against the recovery of the torn blouse. There was no cross-

examination on the delay in the lodging of the report. Most

importantly, after the incident, the brother of the accused, who had

been acquitted, went to the house of the victim requesting her not to

lodge a report, proves the happening of the incident. His defence does

not inspire confidence. Before outraging her modesty by pressing her

breasts, he pulled her grasping her hair and fell her down.

Considering his acts, it cannot be believed that the incident happened

in the spur of the moment. The acts of the accused were sufficient to

prove that he had knowledge that his act was likely to outrage her

modesty. His acts also prove that he had applied criminal force on the

victim. Hence, both Courts have correctly believed that the

prosecution has established the offence of outraging the modesty of

the women as provided under Section 354 of the Indian Penal Code

beyond a reasonable doubt. The ratio laid down in the case laws

relied upon by the accused would come to his aid as distinguishable

on facts.

19. The benefit under the Probation of Offenders Act can not

be extended as the offence under Section 354 of the Indian Penal

Code is moral turpitude. Regarding the term of imprisonment, the

minimum sentence for the offence under Section 354 of the Indian

Penal Code has been awarded. Therefore, the term of imprisonment

can also not be modified.

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20. The learned trial and first appellate Courts have correctly

appreciated the evidence. Examining the impugned judgments and

orders, this Court did not find error on the face of the record. Both

impugned judgments and orders are free from errors and infirmity.

There were no grounds to interfere with the impugned judgments and

orders. Hence, the following order;

ORDER

(i) The revision application stands dismissed.

(ii) The bail and surety bonds are cancelled, and the surety is

discharged.

(iii) The accused shall surrender for undergoing the sentence before

the learned Judicial Magistrate First Class, Court no. 6,

Aurangabad, on or before 18 th of August 2023. If he fails to

surrender, he shall be arrested under the conviction warrant

and sent to Jail to suffer the sentence.

(iv) Needless to say, the accused is entitled to set off under Section

428 of Cr. P.C.

(v) R and P be returned to the Court of learned Judicial Magistrate

First Class, Court no. 6, Aurangabad.

 (vi)         Rule stands discharged.



                                                      (S.G. MEHARE. J.)



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