Bombay High Court
Walmik Dattu Lembhe vs State Of Mah on 1 October, 2024
2024:BHC-AUG:23167
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 49 OF 2005
Walmik Dattu Lembhe,
Age : 21 years, occu. : Agril.,
R/o. Mathapati Savangi,
Tq. and Dist. Aurangabad ... Appellant
Versus
The State of Maharashtra ... Respondent
...
Mr. P. F. Patni, Advocate for Appellant
Mr. D. R. Korade, APP for Respondent-State
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 23rd SEPTEMBER, 2024
PRONOUNCED ON : 1st OCTOBER, 2024
JUDGMENT :
1. Convict Walmik Dattu Lembhe is assailing judgment
and order of conviction dated 10.01.2005 rendered by learned II nd
Ad-hod Additional Sessions Judge, Aurangabad recording his guilt
in Sessions Case No.141 of 2004 for offence punishable under
sections 354, 509 and 323 of Indian Penal Code (for short "IPC")
and section 3(1)(xi) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (for short, "SC & ST
Act").
FACTUAL MATRIX
2. On 07.12.2003, victim informant PW1 Namita was
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plucking legume in their field in the earlier hours of the morning.
Appellant, who had land in the neighbourhood, initially, started
whistling and subsequently he entered her field, showed his wallet
with money to the victim and when she was about to leave, he
reached her, dragged her in the cotton crop, after scuffling made
her pull down and fondled her breast. She raised alarm inviting
attention of her husband and brother-in-law. They rushed towards
her. Accused fled and while running he used caste abuses. Then,
police was approached and occurrence was reported. On the basis
of which, Phulambri police station registered crime.
After investigation, accused was charge-sheeted and
tried before learned IInd Ad-hoc Additional Sessions Judge,
Aurangabad vide Sessions Case No.141 of 2004 for offence
punishable under sections 354, 509 and 323 IPC and under the
provisions of SC & ST Act.
By judgment and order dated 10.01.2005, case of
prosecution was accepted recording guilt for above offences, which
is precisely challenged here in instant appeal.
EVIDENCE BEFORE TRIAL COURT
3. The prosecution has examined following 10 witnesses
in support of its case. Their role and status is as under :
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PW1 Namita victim - informant lodged report regarding
accused outraging her modesty.
PW2 Tarabai neighbour stated that, while she was
plucking cotton in her field, she heard cries. She saw appellant
running after scuffling with informant.
PW3 Kailas husband stated that, incident took place on
07.12.2003. He saw accused sitting on the chest of his wife and
she shouting loudly. Seeing him accused ran and was chased, but
he escaped. His wife narrated the acts of accused. They approached
police.
PW4 Ashok is pancha to spot panchanama Exh.12.
PW5 Sukhdeo is brother of PW3.
PW6 Uttam is the Investigating Officer.
PW7 Mukteshwar is the Head Master.
PW8 Dy.S.P. Chawariya is the then Investigating Officer
PW9 P.S.I. Bagga, P.S.O., who drew panchanama and
procured caste certificate.
PW10 S.D.O. Datkar, authority, who issued caste
certificate.
SUBMISSIONS
On behalf of Appellant :-
4. Pointing to above evidence, learned counsel Shri Patni
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would submit that, prosecution has miserably failed to establish
the charges. According to him, it is false implication due to
previous disputes and occurrence of beating dated 30.04.2004. He
submitted that, informant victim is changing versions. According
to him, at one time she claims incidence to be of 10:00 a.m. i.e. in
the FIR, but in deposition, she gave time of occurrence as 1:30 p.m.
Therefore, according to him, informant herself is giving contrary
versions. He pointed out that, there is no independent witness.
That, FIR is silent about any threats, however, there is testimony
to that extent in witness box. Therefore, according to him, it
amounts to improvisation. According to him, there is material
omission regarding utterance and humiliation on caste abuse. He
invited attention of the court to cross in paragraph no. 8 and
pointed out that, police machinery was pressurized to register
offence under SC & ST Act. That, even FIR is silent about caste
abuse. Therefore, it is his submission that informant's testimony is
not credible. He also pointed out that, in spot panchanama scene of
occurrence is shown to be wet place. If version of informant is
correct, then there would have been wet mud on the person and
clothes of victim, but the same are not seized. That, learned trial
court has also noted such infirmity.
5. He took this court through the evidence of PW3 Kailas
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husband and pointed out that, his evidence is silent about caste
utterance. He apparently did not see any incident and moreover it
is submitted that, he testified about appellant attempting to
commit rape which was not informant's case and so he submits
that his testimony is also improvised version. He also invited
attention of this court to the answers given in cross in paragraph
no. 7 and would submit that it is a full of material omission and
hence according to learned counsel, his testimony is unworthy of
credence.
6. He next submitted that, there is no evidence that
intentionally and knowingly as informant belongs to scheduled
caste category with sole intention she was humiliated. That, in fact,
appellant's caste is not proved and therefore, for all above reasons,
learned counsel questions the finding, reasons and conclusion
drawn by learned trial Judge. He prays to interferer by allowing
the appeal.
In support of his submissions, learned counsel places
reliance on following decisions :-
(i) Ramdas and Others v. State of Maharashtra,
(2007) 2 Supreme Court Cases 170
(ii) State of Maharashtra v. Mohammad Isaq Mohammad
Ansari, 2021 (1) Mh.L.J. (Cri.) 260
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(iii) Kuwarlal s/o. Chandulal Patle v. State of Maharashtra
2012 (2) Mh.L.J. (Cri.) 716
(iv) Vimalbai Manohar Doballiwar and Ors. v. State of
Maharashtra, 2019 (2) Mh.L.J. (Cri.) 209
On behalf of Respondent - State : -
7. In answer to above, learned APP would submit that,
testimony of informant is inspiring confidence. She has narrated
the act of appellant to her neighbour. He submitted that, her
testimony regarding occurrence has remained unshaken and has
not disturbed. He pointed out that, FIR is not encyclopedia and all
minute details are not required to be reproduced. Informant has
categorically deposed in the witness box regarding the pervert acts
of appellant. That, she raised shouts and husband and neighbour
PW2 Tarabai immediately rushed towards the spot and then
accused running. That, there is prompt lodgment of the complaint.
That, while running appellant uttered caste abuse with reference to
caste of informant. Said Incident has taken place in public. That,
Investigating Officer has gathered caste certificate of victim, even
authority issuing certificate is examined and there is
overwhelming evidence regarding occurrence as well as caste
abuse. Therefore, all necessary ingredients for the charges being
available, case is proved beyond reasonable doubt. That, testimony
of victim is supported by her husband, brother and brother-in-law.
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Such evidence as was inspiring confidence has been accepted by
learned trial Judge and therefore according to him, there is no
infirmity or error in the appreciation.
8. Here, evidence of victim PW1 Namita, her neighbour
PW2 Tarabai, husband PW3 Kailas and brother-in-law PW5
Sukhdeo is crucial on the point of occurrence. Therefore, first it
needs to be appreciated.
PW1 Namita is the victim informant. Regarding
occurrence she deposed as under :-
"Present incident took place about one year ago on 7 th
December in our land. I got-up after my sleep was over
during morning hours and bathed. I finished the work
of taking 'Tea' as well as 'breakfast'. I went in the land
to pluck legume and when I was plucking the legume,
the accused Walmik at that time was feeding his she-
buffaloes which were just 5 to 10 ft. away from me.
There is a road in our land known as 'pandhi' and the
accused was wandering here and there in that Pandhi
road. I did not care for his movement as I did not
think that he would have any ill intention. The
accused was whistling while moving on that road. I
did not care for him and his act. The accused within a
short span jumped from that Pandhi area in our land.
He showed me a pocket containing Paise. At that time,
I tried to tun away. The accused came from my
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backside and caught hold of me and dragged me in
side our land having cotton standing crops. He started
scuffling with me. He pulled me down. He caught hold
of my both breasts with his both hands. I started
shouting. My husband came on the spot while running
on hearing hue and cry raised by me. Behind him,
elder brother of my husband by name Sukhdeo
Bhalerao came running on that spot. Accused when
found the persons had come, he left me and ran away
while jumping from that spot inside the Pandhi. Wives
of the brothers of my husband who plucking cotton
buds in the land, came running towards me. The
accused while running told that as to what we people
being 'Mangte' would take any action against him.
When we were going to police station after the above
incident was over, accused and his brothers
threatened us. Brother of the accused threatened us
saying that we should not go to Police station. He told
us that we could do no wrong as against him. This
happened about half an hour after the incident was
over. The incident has taken place at about 1:30 p.m."
While under cross in paragraph nos. 5 and 6 PW1
Namita is questioned about field, its surroundings and regarding
dispute with accused on account of grazzing, which is denied by
her. There is also denial that she deposed falsely that accused
jumped, came in their land, showed her the money purse, she
started running away and that there was scuffle and therefore she
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shouted and labouring woman and her husband came. In
paragraph no.7 omissions are brought about accused while
running away referring to their caste and further saying that he
would see the consequence. Omissions are also brought that she
wept at the spot at the time of incident. In paragraph no.8, she has
denied that, her husband and brother-in-law Sukhdeo had beat
accused on 30.04.2004 regarding which criminal case has been
filed bearing Crime No.43 of 2004. But, she admitted that, her
husband and brother-in-law had staged strike of sitting in front of
Office of Superintendent of Police for not registering crime under
SC & ST Act.
9. PW2 Tarabai a neighbour regarding occurrence
deposed at Exh.9 as under :-
"I was plucking cotton buds in the land of Kausabai
Bhalerao then. Kausabai, Tarabai, I myself,
Kushiwaratabai were in the land then. At the time of
incident we were plucking cotton buds at a distance of
50 to 60 ft. from Bandh of the land of accused Walmik.
I felt that, I heard voice of my daughter by name
Geeta. Thereafter, younger brother of my brother by
name Kailash Bhalerae and Sukhdeo Bhalerao came
running near us. I saw accused Walmik running away
after scuffling Namita. Accused Walmik snatched
away his hand caughthold by Namita (PW1). I came
back to the house after incident. Kailash and Namita
went to Phulambri Police Station."
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PW2 Tarabai in cross denied all suggestions that there
used to be quarrel between Kailas and accused in connection with
bandh; prior to the incident, there was heated exchange of words
between both of them. Then she is questioned about surroundings
of the land, height of the crop. In paragraph no.3 omission is
brought that she was plucking cotton at the a distance of 50 feet
and she saw accused running away after he snatched away his
hand held by victim.
10. PW3 Kailas husband regarding occurrence deposed at
Exh.10 as under :-
".... Incident took place on 07.12.2003. It was Sunday.
My wife on that day went to the land after her
household work was over during morning hours. At
that time, I was in my house. I started to go to my land
after lapse of sufficient time. Meanwhile, I heard voice
of my wife of shouting. I started running away fastly
towards the direction from where I heard shouting of
my wife, and I reached at the place where my wife was
plucking legumes. I saw on the spot the plants were
moving. I saw the accused was sitting on the chest of
my wife and my wife was shouting loudly. I jumped
from the Bandh inside cotton crop. My wife had
caught hold of the hands of accused saying as to why
he has running away then, when her person had been
there and the accused snatched away his hand from
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her hand and ran away, through Pandi beyond that
Pandhi in his land. I chased him while running. I could
not catch him. The accused ran away. I told him that
he had escaped from my clutches but he could not
escape from the clutches of police. This happened in
between 1:00 p.m. to 1:30 p.m. We came to the place
of offence. We I mean I myself and my brother
Sukhdeo Bhalerao. At that place I asked my wife
Namita as to what had happened and she told that she
was plucking legumes and the accused was moving in
Pandhi. He was whistling. But, she did not care for
him and she remained busy with her work of plucking
legumes. The accused came to her, and shewed her
money purse containing money. She started running
out offear, and the accused followed her from behind
and caughthold of her and pulled her inside cotton
crop and tried to pull down her on the ground and she
shouted loudly and the accused attempted to rape on
her person. The accused pressed her breasts and
when she shouted, the accused slapped on her face."
Above witness husband is cross examined extensively,
wherein he has denied dispute between him and accused in
connection with tethering of she-buffaloes. However, he admitted
that crime being registered for beating accused previously in the
year 2004. Rest all suggestions about occurrence are denied in
paragraph no.6. In paragraph no.7 omissions are brought to the
following extent that he reached the spot and saw cotton plants
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moving, his wife lying down on the ground and shouting and
accused sitting over a chest; he jumped in the field and started
running and there is scuffle taking place; asking wife what
happened, she narrated the entire incident; he has not stating
before police about giving caste certificate; about three persons
coming to his house and asking him to withdraw the complaint i.e.
around 1:00 a.m. to 1:30 a.m; about he refusing to withdraw the
complaint. Rest is all denial.
11. PW5 Sukhadeo brother-in-law, regarding occurrence
deposed at Exh.13 as under :-
"About one year ago, the present incident took place.
At the time of incident, I was in my own land. I heard
noise of hue and cry. I rushed on the spot while
running. Before I reached on spot, Kailash had
reached on spot while running. I had seen him while
running towards spot. I saw Walmik running away
from the land of Kailash. Walmik Jumped and ran
away through Pandhan, Walmik, Namita and Kailash
were present on the spot and I had seen them on the
spot. I had seen Walmik caught hold of Namita and
Walmik ran away after leaving Namita. I and Kailash
chased Walmik while running. We could not catch
him. I myself, Kailash and Namita came towards our
house, after Walmik ran away. Namita told us that
Walmk was moving in Pandhi, Walmik whistled and
he was giving signal and thereafter he entered in land
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and he caughthold her hand and lifted her and took
her in cotton crop field, and pulled her down on
ground and pressed her breast and she did not tell me
anything else as she was ashamed of."
In cross of PW5 Sukhdeo following omissions are
brought :-
He heard voice of hue and cry and reached on the spot
while running and found Kailas, victim and accused present and he
saw accused had caught hold of Namita victim and then running
away. Victim was ashamed while giving details. Rest is all denial.
ANALYSIS
12. On carefully appreciating the substantive evidence of
victim PW1 Namita, it is emerging that, her testimony has not
shaken as regards to her visit to the field in the morning, accused
initially whistling, then jumping in their field; showing purse and
then dragging her; making her fall and then outraging her
modesty.
PW2 Tarabai, independent witness has also stated
about hearing shouts and she candidly stated that she thought it to
be voice of her daughter Geeta, but when she saw she found
accused present near victim and victim raising shouts. Her such
evidence has been intact. Likewise, she has also marked presence
of accused.
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13. Even on carefully going through the evidence of her
husband Kailas (PW3), he deposed that, it being Sunday and
though he was in service, he was available in the house and he has
also lend support to the testimony of victim by stating that, on
hearing hue and cry, he reached at the spot and saw his wife had
caught hold of the hands of accused and then accused snatched
away his hand and ran away.
14. Similarly brother-in-law Sukhdeo also has reached the
spot and has marked presence of accused. No doubt, there are
omissions in the evidence of husband and brother-in-law on
material count, still, here, in cross victim, who is important
witness has stood steadfast regarding the occurrence. Alleged
incident is of early morning. Suggestions of previous disputes and
quarrels are all denied except admission that crime was registered
against PW3 Kailash and PW5 Sukhdeo for beating accused
previously. However, on mere such counts testimony of PW1
victim a married lady cannot be doubted. More particularly, when
independent witness PW2 Tarabai also supported. Therefore, as
regards to the commission of offence under section 354 IPC, there
is reliable evidence.
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15. Here also charge is for commission of offence under
section 3(1)(xi) of SC & ST Act, which reads as under :-
"Section 3(1)(xi) - "assaults or uses force to any woman
belonging to a Scheduled Caste or a Scheduled Tribe with
intent to dishonour or outrage her modesty."
16. Learned counsel submitted that, there is no convincing
evidence about commission of said offence. However, the above
provision itself penalizes for any pervert act with a person
belonging to reserve category. Here, by examining PW10 S.D.O.
Datkar, caste certificate is brought on record and therefore
automatically said provision also gets attracted. In the light of
above material, necessary ingredients for attracting both offence
are available in the evidence.
17. Perused the rulings of the Hon'ble Apex court taken aid
of by learned counsel for appellant. With due respect, the facts and
circumstance in those cases being distinct, cannot be applied here
or taken aid of.
18. Having gone through the impugned judgment, this
court is convinced that, no perversity or illegality is brought to the
notice so as to interfere in the findings arrived at by the learned
trial Judge. Finding no merits, I proceed to pass the following
order :
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ORDER
The criminal appeal stands dismissed.
(ABHAY S. WAGHWASE, J.)
19. On pronouncement of this judgment, learned counsel
for the appellant prays for four weeks time to surrender so as to
enable him to approach the Hon'ble Apex Court.
20. Learned APP strongly opposes the same.
21. Considering the above request made by learned counsel
for the appellant, four weeks time is granted for the appellant to
surrender.
(ABHAY S. WAGHWASE, J.)
Tandale
