Bombay High Court
Ramprasad Haribhau Kale vs State Of Mah on 23 October, 2024
2024:BHC-AUG:26116
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 248 OF 2005
Ramprasad Haribhau Kale,
Age : 35 years, Occu. : Agriculture,
R/o. Yerandeshwar, Taluka : Purna,
Dist. Parbhani. ... Appellant
(Orig. Accused)
Versus
The State of Maharashtra ... Respondent
...
Mr. S. T. Shelke, Advocate for Appellant
Mr. K. K. Naik, APP for Respondent - State
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 14 OCTOBER 2024
PRONOUNCED ON : 23 OCTOBER 2024
JUDGMENT :
1. Convict for offence punishable under section 354 of
Indian Penal Code (IPC) is hereby challenging judgment and order
dated 23.03.2005 passed by 1st Ad-hoc Additional Sessions Judge,
Parbhani in Special Case No. 39 of 2001.
2. Appellant in trial court faced charge on accusation
that, he visited house of informant, who was a nurse, in the night of
05.05.2000 and demanded nirodh (condom). She told him that
she does not have it and that she would make it available on next
day. Appellant asked her to accompany him. Because of such
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utterance, informant felt that her modesty was outraged and
therefore she lodged report Exh.18. On the basis of which, crime
was registered and investigated by PW5 ASI Gajbhar and appellant
was tried by learned 1st Ad-hoc Additional Judge, Parbhani, who,
on appreciating the oral and documentary evidence adduced by
prosecution, recorded the above guilt of the appellant, which is now
taken exception to by filing instant appeal.
STATUS AND ROLE OF PROSECUTION WITNESSES
3. The prosecution has examined following 6 witnesses in
support of its case. Their role and status is as under :
PW1 Suman is the informant.
PW2 Suresh is son of informant.
PW3 Nirmala is daughter of informant.
PW4 S.D.P.O. Marwalikar is the Investigating Officer.
PW5 Govindrao, is first Investigating Officer.
PW6 Dr. Zanwar, Medical Officer, who examined PW1
and PW3 and issued certificates.
SUBMISSIONS
On behalf of Appellant :
4. Learned counsel for appellant submitted that, there
was charge of section 354 along with section 3(1)(xi) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
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Act (for short, "SC & ST Act"). He pointed to the evidence on
record and taking this court through the testimony of PW1 Suman,
PW2 Suresh and PW3 Nirmala i.e. informant and children and
submitted that they are not consistent and are not lending support
to each other on various counts. He pointed out that, informant
herself claims that, she was watching T.V. during alleged visit of
appellant, whereas, her children PW2 and PW3 are giving different
versions. He pointed out that there is reference of other boys also
present at that time, but none of such independent persons are
examined. He pointed out that there are allegations that appellant
called informant outside and she being slapped and even daughter
being hit, but these two witnesses, though claimed to be together,
are not consistent. He submitted that at the outset there was no
overt act, criminal force or utterance by appellant which was
offending in nature or which would amount to outraging modesty.
It is submitted that, in fact appellant had paid visit to P.H.C. where
informant was posted as Nurse and she was supposed to distribute
medicines and he had been to collect the same as his daughter was
sick. Learned counsel submitted that learned trial court has not
considered answers given by informant and children in cross,
which are full of material omissions and contradictions. He also
pointed out that, complaint was silent about caste or any utterance
on caste abuse, of which charge has been framed and appellant was
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made to face trial. He pointed out that even necessary ingredients
for attracting charge under section 354 IPC are patently missing in
the prosecution evidence. However, according to him, in spite of
such weak evidence, case of prosecution has been unfortunately
accepted by learned trial Judge and guilt has been recorded. He
pointed out that even settled law has not been considered and so he
seeks indulgence at the hands of this court for allowing the appeal.
On behalf of Respondent - State :
5. Per contra, learned APP strongly opposed by
submitting that accused had visited house of informant at odd
hours. His very offer of asking informant and her daughter to
accompany him clearly indicates his ill intention. He submitted
that there is no false implication as there was admittedly no
previous enmity, and therefore, he supports the judgment and the
findings of learned trial court and prays to dismiss the appeal.
ANALYSIS
6. Here, out of six witnesses, evidence of only three
witnesses is crucial i.e. of PW1 informant, PW2 her son and PW3
her daughter.
On carefully scrutiny of informant's testimony, it is
emerging that, she is admittedly a Nurse working in Sub-Center,
Health Department, Zilha Parishad and was occupying residential
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quarter. According to her, around 11:30 p.m. accused paid visit to
her house and demanded condom. According to her, she told him
that it was not available with her, but she would make it available
on next day after she returned from meeting. Upon which,
according to her, accused said that she should accompany him or
she should send her daughter. When she asked him, not to use
such language, she alleges that she was slapped. Her daughter
came to her rescue, but she was also beaten. Because of the
utterance, her modesty was violated and therefore she lodged
compliant.
While under cross, she answered that she reported at
the time of complaint that, she belongs to 'Bhilla Adivasi', but there
is no reference to this in her complaint. She is unable to give names
of boys, who were in her house watching T.V. at the time of
incident. She answered that, her clothes were blood stained. She
admitted that, accused had lodged complaint against herself, her
daughter and son-in-law regarding the same incident, wherein
there are allegations of beating to him. Rest is all denial.
7. Second witness is her son PW2 Suresh. He is examined
at Exh.19. Even according to him, accused came to their house
and demanded nirodh (condom) from his mother and she said that
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it was not available and further told that she would bring it from
Purna after the meeting. But accuses said that, he wanted it
instantly. He has deposed that, his sister PW3 came out of the
house. Accused said that either mother should accompany him or
her mother should send her daughter or mother should make some
arrangement. Upon which, accused slapped her mother and when
her sister came to her rescue, she also suffered injury to the left
hand. According to him, accused dragged his mother.
In cross, omission is brought to the extent that accused
had said that he wanted nirodh immediately. He answered that,
when his mother was being dragged, he raised shouts, due to which
his sister came out from the house. He admitted that accused has
filed criminal case against his mother, sister Nirmala and Shivlal.
8. PW3 Niramala sister of PW2 and daughter of PW1,
testified that, accused came to their house at 12:00 to 1:00 a.m.
and asked her mother that he wanted nirodh. Her mother told him
she did not have it and would bring it when she would go for
meeting. Upon which, accused said to her that either she should
accompany her or should send her daughter. Therefore, she went
out of the house and saw accused jostling with mother. Thereafter,
accused beat both of them.
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In her cross with regard to occurrence, she answered
that, she does not remember whether she had told police that at
12:00 to 1:00 a.m. accused came to their house and asked the boys
to call her mother and she went and woke her up. She admitted
that, such version is not finding place in the statement to police.
She admitted that, she did not inform police that, her mother came
out and asked accused that what he wanted. She also answered
that, she told police that accused said that as to why her mother
would not give nirodh. But such materiel is not available in her
statement and she was not in a position to assign reason. She also
answered that, she does not remember whether she told that
accused was jostling with her mother. She answered that, she did
not handover blood stained clothes to police. She also admitted that
accused filed complaint against herself, her mother and her
husband on the same day.
9. PW6 Dr. Zanwar, who allegedly examined PW1 Suman
and PW3 Nirmala and issued injury certificates regarding both of
them suffering abrasion on right arm above right elbow and
lacerated injury on posterior, respectively, but he admitted that,
injuries are possible on account of falls on a hard surface.
-8- Cri.Appeal.248.2005
10. Here, crime is registered for offence under section 354
IPC and section 3(1)(xi) of SC & ST Act, but guilt is recorded under
section 354 IPC. For attracting section 354 IPC, following
ingredients are required to be proved and established by
prosecution :
"Firstly, there is assault on a woman.
Secondly, there is use of criminal force on her and
Thirdly, such force has been used on woman with sole
intention of outraging modesty."
Cardinal principle of law is that, burden is on
prosecution to prove availability of necessary ingredients for
attracting section 354 IPC. It must be demonstrated that, criminal
force has been used upon a woman with sole intention of outraging
modesty or there has to be knowledge that by such act, modestly of
a woman would be outraged.
Law to this extent has been expounded in the cases of
State of Punjab v. Major Singh, AIR 1967 SC 63 and State of
Himachal Pradesh Vs. Mango Ram, (2000) 7 SCC 224.
11. Keeping above legal requirements in mind, evidence is
re-appreciated.
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Here, PW1 Suman, PW2 Suresh and PW3 Nirmala are
speaking about accused coming and demanding condom from
informant. There is no dispute that, she is a Nurse and is posted in
Sub-center of Health Department, Zilla Parishad. Her very answer
that it was not available with her and that she would arrange after
returning from Purna after meeting, itself shows that, there was
duty cast on her to supply medicines and such articles on demand.
It is practice followed by health department to make articles like
condom available for public at large and are distributed free at
health centers. Therefore, it seems that accused had visited house
of informant. On carefully scrutinizing the evidence of informant,
her son and daughter, more particularly that of son and daughter,
it is doubtful whether PW2 Suresh and PW3 Nirmala have heard
the conversation. PW3 Nirmala apparently seems to have come in
picture at later point of time as her brother PW2 Suresh in cross
stated that, when his mother was dragged he raised shouts, after
which his sister came out. This episode of jostling and dragging had
taken place subsequent to some conversation. Therefore, virtually
there is no corroboration to the testimony of informant.
12. Objection has been taken to alleged utterance by
accused that informant should accompany him or should send her
daughter and such utterance is viewed by her as violation of her
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modesty, but her son PW2 Suresh has stated that, accused insisted
for the article instantly. In such reference, it is possible that, if at
all there is any utterance, then accused had asked informant to
accompany and to arrange it. In the light of above discussion,
asking Nurse in Health Department to accompany a direct
inference that said request was with ill intention cannot be drawn
straightaway so as to attract section 354 IPC. What he allegedly
uttered was just to accompany and therefore several other
meanings also could be drawn for such utterance. For attracting
354 there has to be use of criminal force. Such aspect is clearly
missing in the evidence. Therefore main ingredients for section
354 are patently missing in the prosecution evidence.
13. Secondly, all witnesses are admitting about complaint
lodged by accused due to same incident against present informant,
her daughter and her husband and this is not denied. For said
reason, implication as a counterblast cannot be ruled out.
14. For all above reason, essential ingredients being not
established and no clear meaning emanating from alleged
utterance, it is a case of benefit of doubt and hence the same has to
go to appellant. Hence, I proceed to pass the following order :-
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ORDER
I) The criminal appeal is allowed.
II) The conviction awarded to appellant Ramprasad
Haribhau Kale in Special Case No. 39 of 2001 by learned
1st Ad-hoc Additional Sessions Judge, Parbhani on
23.03.2005 for the offence punishable under section 354
of Indian Penal Code, stands quashed and set aside.
III) The appellant stands acquitted of the offence punishable
under section 354 of Indian Penal Code.
IV) The bail bonds of the appellant stands cancelled.
V) The fine amount deposited, if any, be refunded to the
appellant after the statutory period.
(ABHAY S. WAGHWASE, J.)
Tandale
