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Judgment
Challenge is to the judgment and order dated 29.12.2005
rendered by the 2nd Adhoc Additional Sessions Judge, Amravati, in
Special Case 2 of 2005, by and under which, the appellant - accused is
convicted for offence punishable under section 452 of the Indian Penal
Code (" IPC ") and is sentenced to suffer rigorous imprisonment for one
year and to payment of fine of Rs. 500/- and is further convicted for
offence punishable under section 354 of the IPC and is sentenced to
suffer rigorous imprisonment for one year and to payment of fine of
Rs. 500/-.
Heard Shri Anil Mardikar, the learned senior counsel for
the accused and Shri V.P. Maldhure, the learned Addl. Public Prosecutor
for the respondent / State.
The genesis of the prosecution lies in oral report lodged by
the prosecutrix (PW 1) at Police Station Tivsa on 25.6.2004 at 8.45
a.m., alleging that on 24.6.2004 at 1.00 p.m. the accused entered her
house and outraged her modesty. The prosecutrix, who then was aged
14 years states that she resided with her father. Her mother and two
younger brothers reside separately due to a matrimonial dispute
between her mother and father. She was sleeping in the house after
having meals and her father had gone to graze cows. She felt some
weight on her person, opened her eyes and saw the accused lying on
her person. The accused was holding her by shoulders. She shouted,
the accused did not get up from her person, on hearing her shouts, her
paternal uncle''s wife who is a neighbour arrived at the scene.
The accused was pulled away by her aunt by the collar. The accused
fled and was seen by Mandabai Ghorpade and Sunandabai Khadsare
fleeing. Her father returned home in the evening, the prosecutrix
disclosed the incident to her father and the next day morning the
report was lodged.
The printed First Information Report is Exh. 11 on the
record of the trial court. On the basis of the report offence punishable
under section 452 and 354 of the IPC was registered against the
accused. Subsequently, the accused was also charged under section
3(1)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act (Atrocities Act ). Investigation ensued, upon completion
of which, charge sheet was submitted in the Court of Judicial
Magistrate First Class, Chandur Railway, who committed the case to the
Sessions Court. The learned Sessions Judge framed charge (Exh 2)
under section 354, 452 of the IPC and under section 3(1)(xi) of the
Atrocities Act. The accused abjured guilt and claimed to be tried.
The defence is of total denial and false implication. In response to
question 24 in statement recorded under section 313 of the Code of
Criminal Procedure, the accused states thus:
"Question 24 : Why the prosecution witnesses are deposing against You?
Answer : I use to sell vegetables. Rs. 144/- was due towards Padmabai as she purchased vegetable on credit. I made demand of Rs. 144/- to her. She refused to give the same. I use to go at the house of Prakash Nagle. There was disputed terms between Padmabai and Prakash. Hence she lodged false report through Savita and deposing false".
The accused examined DW 1 Prakash Nagale in defence.
The learned senior counsel Shri Anil Mardikar submits that
the delay in lodging the First Information Report is destructive of the
credibility of the prosecution case. Sunandabai and Mandabai, who
according to the prosecutrix saw the accused fleeing, were not
examined. The failure of the prosecution to examine material witnesses
casts a shadow of doubt on the reliability of the evidence of the
prosecution witnesses, is the submission. The defence of false
implication, is more than probabilized on the touchstone of
preponderance of probabilities, is the further submission.
Per contra, the learned Additional Public Prosecutor
Shri V.P. Maldhure submit that the defence that some amount was due
and payable by PW 2 Padmabai to the accused and the resultant
dispute is the cause of false implication, is not even put to the
prosecution witnesses. The defence, as is discernible from the
cross-examination of the prosecution witnesses that PW 1 and PW 2
were not on good terms with DW 1 Prakash and the accused is falsely
implicated since he used to frequent the house of Prakash, is highly
improbable, is the submission. The evidence of PW 1 and PW 2 is
implicitly reliable and the non examination of Sunandabai and
Mandabai does not dent the credibility of the prosecution case, is the
submission. The learned APP would submit that in the final analysis,
the evidence must be weighed and not counted. The prosecution has
established the offence beyond reasonable doubt, is the submission.
The two material witnesses from the perspective of the
prosecution are PW 1 and PW 2 Padmabai. The deposition of PW 1
broadly consistent with the contents of the First Information Report.
The only omission, which is of a little significance, brought on record is
that PW 1 did not state before the police that there was possibility of
rape, if PW 2 Padmabai would not have arrived at the scene.
The testimony of PW 1 is reliable, trustworthy and confidence
inspiring, and is not shaken in the cross-examination. The suggestion
given to PW 1 in the cross-examination is that PW 1 falsely implicated
the accused as he used to frequent the house of Prakash Nagale.
The suggestion is given in the backdrop of the admission that there are
disputed terms between the prosecutrix and Prakash Nagale. In my
opinion, the defence, as is rightly submitted by the learned APP, is not
probabilized even on the touchstone of preponderance of probabilities.
It is inconceivable why the accused would be falsely implicated by the
prosecutrix only because he frequented the house of DW 1 Prakash
with whom the prosecutrix did not have cordial relations. Indeed, it is
the defence which has brought out in the cross-examination of PW 1
Padmabai that accused was only one of the several youth of dubious
character ("loafer" is the word used) who frequented the house of DW
1 Prakash. The relevant portion in the cross-examination of PW 2
Padmabai reads thus:
"The house of Prakash Nagale is nearer to my house. It is correct to say said Prakash Nagale is involved in illegal activities. The villagers are having complaint with him as he used to deal with Ganja. It is correct to say that the boys of loafer nature used to gather at his house. It is correct to say that out of that loafer boys accused Bashir also used to stay there".
The conscious of this Court is satisfied, that the
testimony of the prosecutrix that the accused entered her house,
held her shoulders and sat on her person is implicitly reliable.
The testimony of the prosecutrix is corroborated by PW 2
Padmabai. She has deposed that she heard the prosecutrix shouting and
went to her house. The prosecutrix was weeping and the accused was
sitting on her person. She caught hold of the collar of the accused and
pulled him away. The accused fled. In the cross-examination, not a
single omission is brought on record much less a significant omission
tantamounting to contradiction. The cross-examination is substantially
directed at bringing on record the strained relationship between the
witness and DW 1 Prakash to buttress the defence of false implication.
DW 1 is Prakash Nagale. However, his evidence does not
take the case of the defence any further. He has deposed that there was
a dispute between him and PW 2 Padmabai. He states that the accused
had supported him when there was a quarrel on the issue of cattle and
the accused was threatened by PW 2 Padmabai. Be it noted, that this is
not even a suggestion given to PW 2 Padmabai. The prosecution has
elicited in the cross-examination of DW 1 that the accused was facing
prosecution under section 302 of the IPC. The presence of the accused
at the scene is brought on record in the cross-examination of DW 1.
The evidence of DW 1 is of no assistance to the defence.
The learned senior counsel then submits that even if the
prosecution evidence is taken at face value, offence punishable under
section 452 of IPC is not made out. Outraging modesty would not
amount to assault, is the submission. Assault is defined in section 351
of the IPC thus:
351 - Assault - Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.
Force and criminal force are defined in sections 349 and
350 of the IPC, respectively, which reads thus:
Force. -- A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other''s body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other''s sense of feeling: Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described:
First. -- By his own bodily power.
Secondly.-- By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person.
Thirdly. -- By inducing any animal to move, to change its motion, or to cease to move.
Criminal force. -- Whoever intentionally uses force to any person, without that person''s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.
It is difficult to accept the submission of the learned senior
counsel that sitting on the person of a 14 year old girl and holding her
by the shoulders does not involve use of criminal force. The submission
that offence punishable under section 352 of the IPC is not made out, is
noted only for rejection.
The prosecution has established offence punishable under
section 452 and 354 of the IPC beyond reasonable doubt. The learned
counsel would submit that since the incident occurred more than 14
years ago and the accused was aged 22 years or thereabout, the
sentence of one year rigorous imprisonment may be reduced. I do not
see any compelling reason to do so. The prosecutrix was aged 14 years
when her modesty was outraged. The defence has brought on record
that the accused was facing criminal prosecution under section 302 of
the IPC and was even otherwise a person of dubious character.
(i) The appeal is sans substance and is rejected.
(ii) The bail bond of the accused shall stand discharged and he shall be taken in custody forthwith to serve the sentence.
(iii) The accused shall be entitled to the benefit under section 428 of the Code of Criminal Procedure.
(iv) Police Station Officer, Police Station Tivsa, District Amravati is directed to file a compliance report in the Registry of this Court within two weeks.