Mani Ram vs The State

S.S. Sandhawalia, J.—Mani Ram Petitioner was convicted u/s 354, Indian Penal Code, and sentenced to six months rigorous imprisoment by the order of the Judicial Magistrate 1st Class, Palwal. On appeal to the Court of Session at Gurgaon, the learned Additional Sessions Judge set aside the conviction u/s 354, Indian Penal Code, on the finding that there was no credible evidence in support thereof but convicted the Petitioner u/s 352, Indian Penal Code, and imposed a sentence of one month''s rigorous imprisonment.

The prosecution allegations were that on 16th of March, 1968, Savitri prosecutrix had gone to Doongri black-smith for getting her sickle sharpened, but whilst she was returning near the Chaupal Din-gran, the Petitioner claimed the sickle as his own whereupon she said that she could look at it whether it belonged to him. The Petitioner is then said to have caught her armand pressed her breast. Thereupon the prosecutrix is said to have raised alarm attracting Ram Gopal and Ram Kishan P. Ws. to the spot. Seeing these witnesses the Petitioner is alleged to have fled from the spot. The prosecutrix narrated the version to her lather on his return to the village next morning and it was there-alter that a report was lodged in the police station and the present case was registered. The trial Court had relied upon the satatements of Savitri (P.W.1), Khem Chand (PW. 2) her father, Ram Gopal (PW.3) and Ram Kishan another eye-w tness had only been tendered for cross-examination whilst the rest of the prosecution evidence was of a formal nature and that of the invest gating officer.

The plea of the Petitioner u/s 342, Code of Criminal Procedure was that the prosecutrix had a day prior to the occurrence given a beating to his daughter Omwati. On the next day when she met him near Chaupal Dingran he remonstrated with, her as to why she had beaten her daughter but the latter far from being apologetic about the matter further insulted him by saying that she could beat him also, whereupon an exchange of hot words had followed and it was on this basis that the matter had been exaggerated and he was falsely implicated on this charge. In support of this vrsion the Petitioner examined two defence witnesses, namely, Khema Lambardar (D.W.1) and Girdhari Lal Sarparch (D W.2) of the village.

The primary contention of bhri K.D. Singh appearing is support of this petition is that on the finding arrived at by the lower Appellate Court, the conviction of the Petitioner cannot be sustained. It was plausibly contended that the substratum of the prosecution case had been disbelieved and rejected by the learned Additional Sessions Judge whilst setting aside the conviction of the Petitioner u/s 354, Indian Penal Code. It was contended that there was no adequate basis for the charge u/s 352, Indian Penal Code, now sought to be sustained against him.

There is patent merit in the contention raised on behalf of the Petitioner. The lower appellate Court had found that Ram Gopal, an eye-witness to the occurrence, had not been examined and has only been tendered for cross-examination. It further came to notice that Ram Gopal (P.W) another alleged eye-witness to the occurrence had not seen the occurrence because, according to his earlier statement before the police, he had only seen the Petitioner running away from that place. The lower Appellate Court futher relied upon the defence evidence to disbelieve the prosecutrix and Khetn Chand (PW. 2) regarding the manner in which the occurrence was related by the prosecutrix to her father and the subsequent lodging of the first information report. On this the learned Additional Sessions Judge observed as follows:

All these facts taken together would give the impression that Khem Chand P.W. was in fact in the village and had made a false statement that he had returned to the village on the following morning

On consideration of all these factors, the learned Additional Sessions Judge observed as under:

Taking into consideration the facts of the case discussed above, it could not be held beyond any shadow of doubt that Mani Ram accused was really guilty of indecent behaviour towards Savitri prosecutrix by having pressed her breasts with a view to outrage her modesty and in the absence of independent corroboration version of the prosecutrix he could not safely be convicted of the said charge.

Nevertheless after arriving at that finding, the learned Additional Sessions Judge sustained the conviction of the Appellant u/s 352, Indian Penal Code, apparently and solely on the statement of Khema (D.W. 1) Lambardar, wherein he had stated that during the course of altercation, Mani Ram Petitioner had given a slap to Savitri. The brief finding on the point is in the following term:

The offence u/s 352, Indian Penal Code, was, however, clearly established against Mani Ram accussed by his own defence. Even if it be assumed for the sake of argument that Savitri prosecutrix had given beating to his daughter on the previous day, he had no business to give her a slap on the thoroughfare.

In my view, the above finding of the learned Additional Sessions Judge is not based on any credible evidence. It is significant to know that it was never the case of Savitri prosecutrix that the Petitioner had ever given a slap to her. Even the evidence of Ram Gopal the only other eye-witness also negatives any such suggestion A perusal of the relative part of the statement u/s 342 Code of Criminal Procedure of the Petitioner also is categorical that at no stage had he given any slap to the prosecutrix. In the absence of any such allegation on the part of the prosecution evidence and lack of any admission by the Petitioner in his statement u/s 342, Criminal Procedure Code, there cannot be any firm basis for the sustaining of the conviction. Merely because Khema (D.W. 1) whilst giving the version of the altercation between the Petitioner an1 Savitri stated for the first time that a slap was given by the Petitioner is an insufficient basis for accepting a version which was neither the case of the prosecution nor the plea of the Petitioner. This defence witness may have merely exaggerated the nature of the altercation. In any case, in view of the fact that the main charge u/s 354, Indian Penal Code, has failed, I find the evidence insufficient to sustain the cinviction u/s 352, Indian Penal Code, on so scanty a basis. I hold that the Petitioner is entitled to the benefit of doubt and accordingly allowing the same to him, I would set aside his conviction and sentence and allow this revision.