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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.