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CASE NO.:

Appeal (crl.) 1513 of 2004

PETITIONER:

Pandurang Sitaram Bhagwat

RESPONDENT:

State of Maharashtra

DATE OF JUDGMENT: 17/12/2004

BENCH:

N. Santosh Hegde & S.B. Sinha

JUDGMENT:

J U D G M E N T

[Arising out of SLP (Crl.) No. 2177 of 2004]

S.B. SINHA, J :

Leave granted.

This appeal is directed against the judgment and order dated

27.01.2004 passed by the High Court of Bombay in Criminal Revision

Application No.219 of 1996, whereby and whereunder the revision

application filed by the Appellant herein was dismissed ex parte.

The Appellant herein is a Constable in the State Reserve Police. He

was charged for alleged commission of an offence punishable under

Sections 354, 323, 504, 506 read with Section 34 of the Indian Penal Code.

One Dilip Phadtare was a monthly tenant under the Appellant in one of the

rooms in his house situated at Sarpanch Vasti, Dund. It is not in dispute

that quarrels used to ensue between other tenants on the one hand and the

said Dilip Phadtare and his wife on the other. It is also not in dispute that

the Appellant had asked Dilip to vacate the tenanted premises. He was also

said to have in search of other premises.

His wife Alka Dilip Phadtare is the complainant. On 10.04.1993, at

about 5.15 p.m., the Appellant is said to have entered into the said tenanted

premises, when Alka (PW-2) was watching a movie in the television with

her sons Shivaji and Amol. He enquired about her husband. Alka (PW-2)

told him that he was not at home. He thereupon allegedly entered into the

room, closed the door and outraged her modesty by embracing her from

backside and touched her breasts. At that time PW-3, Dilip came back and

found Alka abusing the Appellant. On his questioning as to what had

happened; he was assaulted by fists and kicks. The other three accused

thereafter also allegedly came there and assaulted both of them. Dilip

allegedly was also assaulted with stones and bricks.

The Appellant and the other three accused persons stood their trial for

commission of offences punishable under Sections 354, 323, 504, 506 read

with Section 34 IPC on the basis of a first information report lodged by PW-

2 in relation to the aforementioned alleged incident.

The prosecution besides the informant (PW-2) also examined her

husband (PW-3) and son, Shivaji (PW-4).

The Judicial Magistrate, First Class, Daund, by a judgment and order

dated 25.05.1995 disbelieved the story as disclosed in the First Information

Report as regard threatening given to her husband, Dilip (PW-3), on the

premise that no such allegation was made in her earlier statement. The

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court also disbelieved the allegation that Alka and her husband were abused

by the accused persons. It furthermore negatived the case of the prosecution

that the accused persons voluntarily caused hurt to Alka and her husband.

The accused persons were, therefore, acquitted of the charges for

commission of the offences punishable under Sections 323, 504, 506 read

with Section 34 of the Code. However, the Appellant alone was found

guilty of commission of the offence of outraging modesty of Alka by the

learned Magistrate holding :

"As regards the submission of probability of false

implicating of the accused, I find it difficult to

digest that a woman will prefer to put her character

at streak only in order to take revenge or in order

to implicate the accused falsely, particularly when

her husband serves in police department. Alka

and her husband could have easily made false

charge of house trespass, causing of hurt etc. to

lodge prosecution and it was not necessary for

them to put to streak character of Alka by making

false accusations of outraging of modesty by the

accused No.1\005"

On the aforementioned finding, the Appellant was convicted under

Section 354 IPC and sentenced to suffer R.I. of three months and also to pay

a fine of Rs.1,000/-. A sum of Rs.500/- was directed to be paid to the

complainant Alka by way of compensation, out of the aforementioned

amount of fine. The Appellant preferred an appeal thereagainst. By reason

of a judgment and order dated 31.08.1996 passed in Criminal Appeal No.10

of 1995, the Additional Sessions Judge, Baramati, dismissed the said

appeal. The learned Appellate Court noticed the discrepancy in the

evidences of PW-2 and her son Shvaji as regard the manner of occurrence

but maintained the judgment of conviction and sentenced passed by the Trial

Judge, stating :

"\005There was nobody to watch the said incident.

No doubt, the other incident of beating, abusing by

appellant and his other relatives to Alka and her

husband took place outside the house but main

incident of outraging modesty of the woman having

taken place in the drawing hall itself, there was no

person, who could see the incident and therefore,

non-examination of independent witness from the

neighborhood of Alka and her husband, cannot be

said to be a minus point for the prosecution. A

minor discrepancy has been occurred in the evidence

of mother and son. Shivaji testified that when

mother was going towards kitchen and was in

standing position, her breasts were caught by the

accused, coming behind her, whereas Alka stated

that her breast were caught, when she was watching

T.V. However, this discrepancy is very minor in

nature, if a woman is assaulted in this fashion. The

very next moment, she would stand up and would

not continue to sit in the same position before she

was criminally assaulted. So, if natural one and it

cannot shake credibility of either of the witnesses to

the occurrence."

A Revision Application filed by the Appellant was dismissed by the

High Court in terms of the impugned judgment holding that both the courts

below have appreciated the evidence on record and on appreciation found

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the accused guilty and there was no error of law committed by any of the

Court.

It is not in dispute that the High Court passed the said judgment in

absence of the counsel for the Appellant.

Mr Jadhav, the learned counsel appearing on behalf of the Appellant,

would submit that the High Court committed a manifest error in passing the

impugned judgment, insofar as it failed to consider the merit of the matter.

Had the merit of the matter been gone into by the High Court, the learned

counsel would contend, the Appellant could have shown that he had been

falsely implicated owing to dispute between him as the landlord and Dilip as

the tenant.

The learned counsel appearing on behalf of the Respondent, however,

supported the judgment of the courts below.

Keeping in view the nature of the case, we are of the opinion that the

matter should be finally disposed of by this Court upon consideration of the

materials on record.

The strained relationship between the parties is not in dispute. If the

contention of the first informant and her husband to the effect that they had

already taken a decision to shift from the said premises is believed, there

does not appear to be a plausible reason as to why the Appellant and three

other accused would trespass into the house and assault them. Some

photographs showing the injuries of PW-2 and PW-3 were produced before

the Court, but no reliance thereupon was placed by the learned Trial Judge.

The Trial Judge, as noticed hereinbefore, disbelieved the prosecution

case as regard: (i) threatening of the first informant and her husband by the

accused persons, (ii) hurling abuses to them, and (iii) assaulting them by

bricks and stones. No independent witness has been examined and the

witnesses of the Punchnama were also said to have been declared hostile.

The approach of the learned Trial Judge as noticed supra that

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

but cannot be applied universally. Each case has to be determined on the

touchstone of the factual matrix thereof. The law reports are replete with

decisions where charges under Sections 376 and 354 of IPC have been found

to have been falsely advanced.

In this case, allegation of house trespass was made but for reasons

best known to the investigating agency no specific charge in relation thereto

was made.

Charges for causing hurt, along with other charges as noticed

hereinbefore were specifically disbelieved.

The charges of making false allegations by Alka at the instance of her

husband, who is working in the police department cannot be totally brushed

aside. No case was also made out that the incident of threatening, abusing or

beating took place outside the house of the Appellant.

We are not oblivious that the doctrine 'falsus in uno, falsus in

omnibus' is not applicable in India but the evidence led by the parties must

be appreciated keeping in view the entirety of the situation. The Trial

Judge, as noticed hereinbefore, came to the conclusion that most of the

statements made by PW-2 and PW-3 were incorrect and no reliance could be

placed thereon. The statements of the said witnesses with regard to

commission of an offence by the Appellant under Section 354 IPC should

have been considered keeping in view the extent of falsity in their

statements. PW-2 and PW-3 not only failed to substantiate the allegations as

regard commission of offences under Sections 323, 504, 506 read with

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Section 34 IPC but also implicated the three persons falsely. The

statements of the said witnesses should have been accepted with a pinch of

salt and keeping in view the admitted animosity between the parties. The

background of the case vis-`-vis continuous animosity between the

complainant and her husband, on the one hand, as also and the Appellant and

his other tenants could not have been lost sight of by the learned Trial Judge.

The exact place of occurrence and the manner in which the purported

offence of outraging the modesty was committed by the Appellant,

furthermore, materially differ. Whereas PW-2 asserted that the Appellant

came inside the house and embraced her from the back, when she was

watching T.V. sitting; PW-4 stated that the incident took place when she was

proceeding towards the kitchen. The observations made by the learned

appellate court is based on surmises and conjectures. The said discrepancy

even if ordinarily could not have been the basis of passing a judgment of

acquittal, but in this case, as noticed hereinbefore, the conduct of both PW-2

and PW-3 being suspect, it would not be safe to rely on a part of their

statements as prosecution witnesses.

The High Court, in our considered opinion, should not have refused to

exercise its revisional jurisdiction on the ground that no question of law had

arisen therein inasmuch as in terms of Section 397 of the Code of Criminal

Procedure, the correctness, legality or propriety of any finding, sentence or

order may fall for consideration of the Revisional Court and in particular

having regard to the fact that the prosecution case should have been tested

from the angle that the Trial Judge had acquitted all the three accused

persons who are said to have shared a common intention with the Appellant

not only in relation to the offences under Sections 323, 504 and 506 of the

Indian Penal Code but also in relation to the offence committed by the

Appellant under Section 354 thereof.

We, therefore, are of the opinion that having regard to the totality of

the fact and circumstances of the case, the Appellant is entitled to be given

the benefit of doubt.

For the reasons aforementioned, this Appeal is allowed, the impugned

judgment is set aside and the Appellant is discharged from the bail bond.