State vs Sudhin Mondal

Arijit Banerjee, J

This criminal appeal has been filed by the State against the judgement and order dated 7 March, 2017 passed by the Judicial Magistrate First Class, N&M Andaman, Mayabunder in case No. GR- 327 of 2015, TR - 195/2015. The charge against the accused (respondent herein) was under Section 354 of the Indian Penal Code (in short IPC). By the impugned judgement the learned Magistrate has acquitted the respondent.

The case of the prosecution as recorded in the impugned judgement as also as argued before me is that the victim, Ms. Sumati Barla was a Peon at the Urmilapur Panchayat office, engaged on Daily Rated Mazdoor basis. On 5 August 2015 around 1/1.30 P.M. she and the respondent who was the Pradhan of the said Panchayat were present in the Panchayat Office. Others had left for lunch. At around 1.30 P.M. the respondent asked the victim to bring a file which she did. She then told the respondent that she was going for lunch and accordingly went to the Panchayat Hall for having lunch. Soon thereafter, the respondent went to the Panchayat Hall and asked her what she was having for lunch. Thereafter the respondent went to her rear side. The victim thought that the respondent had left the room and she started to have her lunch. After a little while as she was having lunch, the respondent came from her behind and touched her waist with both hands. The victim raised a hue and cry whereupon the respondent left the room after telling her that if she disclosed the incident to anyone then it would be she who would be defamed. Thereafter the victim closed the office and returned home. She did not report the matter to the Police Station on that day out of fear but she lodged the complaint on 6 August, 2015.

The respondent was questioned under Section 313 of the Criminal Procedure Code. He denied the occurrence of the incident and pleaded innocence.

Section 354 of the IPC reads as follows:-

"354. Assault of criminal force to woman with intent to outrage her modesty.- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine."

Eight witnesses were examined by the prosecution. They were:

i. Sumati Barla (victim) defacto complainant-PW1

ii. Dr. Anit Chand- PW2

iii. Parimal Das, DRM Urmilapur Panchayat Office- PW3

iv. Pradeep Bairagi, Head Constable, PS Rangat-PW4

v. Bipul Kumar Mistry, Government Servent-PW5

vi. Smt. Mariya Garothi, Ward member of Urmilapur Gram Panchayat-PW6

vii. Nibai Barla, father of the defacto complainant- PW7

viii. Prafulla Mondal, Head Constable, PS Rangat-PW8

The defence examined two witnesses as follows:-

i. Smt. Jivanti Bhagwati, PRI member Urmilapur Gram Panchayat - DW1

ii. Pawan Mondal, Pan Shopkeeper - DW2

Learned Government Pleader appearing on behalf of the appellant-State took me in details through the evidence on record and submitted that the evidence on record clearly establishes the commission of the offence. Generally there would be no eye witness since one would generally not outrage the modesty of a woman in the presence of others. However, the evidence of the prosecution witnesses read as a whole clearly establishes the charge brought against the respondent. The charge was proved but the learned Magistrate erroneously acquitted the respondent.

Learned Government Pleader relied on the decision of the Hon'ble Supreme Court in the case of Rupan Deol Bajaj (Mrs) and another vs. Kanwar Pal Singh Gill and another with B.R. Bajaj vs State of Punjab and others reported in (1995) 6 SCC 194. In particular learned counsel relied on paragraphs 17 and 29 of the reported judgement which read as follows:-

"17. It is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other ingredients for convicting a person. But, it is also equally true that those ingredients being states of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case. Since, however, in the instant case we are only at the incipient stage we have to ascertain, only prima facie, whether Mr Gill by slapping Mrs Bajaj on her posterior, in the background detailed by her in the FIR, intended to outrage or knew it to be likely that he would thereby outrage her modesty, which is one of the essential ingredients of Section 354 IPC. The sequence of events which we have detailed earlier indicates that the slapping was the finale to the earlier overtures of Mr Gill, which considered together, persuade us to hold that he had the requisite culpable intention. Even if we had presumed be had no such intention he must be attributed with such knowledge, as the alleged act was committed by him in the presence of a gathering comprising the elite of the society - as the names and designations of the people given in the FIR indicate. While on this point we may also mention that there is nothing in the FIR to indicate, even remotely, that the indecent act was committed by Mr Gill, accidentally or by mistake, or it was a slip. For the reasons aforesaid, it must also be said that - apart from the offence under Section 354 IPC - an offence under Section 509 IPC has been made out on the allegations contained in the FIR as the words used and gestures made by Mr Gill were intended to insult the modesty of Mrs Bajaj.

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Our such exercise persuades us to hold that the opinion of the Investigating Officer that the allegations contained in the FIR were not substantiated by the statements of witnesses recorded during investigation is not a proper one for we find that there are sufficient materials for taking congnizance of the offences under Sections 354 and 509 IPC. We, however, refrain from detailing or discussing those statements and the nature and extent of their corroboration of the FIR lest they create any unconscious impression upon the trial court, which has to ultimately decide upon their truthfulness, falsity or reliability, after those statements are translated into evidence during trial. For the selfsame reasons we do not wish to refer to the arguments canvassed by Mr Sanghi, in support of the opinion expressed in the police (final) report and our reasons in disagreement thereto."

Learned counsel appearing for the respondent took me through the impugned judgement and submitted that the learned Magistrate has rightly noted the loopholes in the prosecution case. The prosecution case was the result of a conspiracy between the defacto complainant and PW6 who was a ward member of Urmilapur Gram Panchayat. She had contested the Panchayat election for the post of Pradhan but had lost to the respondent. The relationship between PW6 and the respondent is acrimonious. PW6 prevailed upon the defacto complainant to file the police complaint.

I have considered the rival contentions of the parties. I have gone through the impugned judgement carefully.

Learned Magistrate has analysed the evidence of each and every witness in great detail. He noted some significant discrepancies in the evidence of the prosecution which were as follows:-

a. PW1 deposed that on 5 August, 2015 after 12 noon all the staff left the Panchayat office. At about 1 P.M. Parimal Das (PW3) one of the DRMs also left for having his lunch. However, PW3 deposed that he and Jivanti Bhagwati (DW1) left the office for lunch at about 1 P.M. In his cross examination PW3 also stated that at the time when he and Jivanti was leaving the office, the respondent was also getting ready to leave the office. The Learned Magistrate observed that if the failure on the part of the PW1 to mention the presence of Jivanti was intentional then the credibility of PW1 would be suspect. If such omission was unintentional, then it would suggest that PW1 failed to record her evidence properly and correctly.

b. In his evidence, PW3 stated that the respondent was getting ready to leave the office when PW3 and Jivanti were leaving and further Jivanti deposed that the respondent came down the stairs with her and Parimal (PW3).

c. DW1 stated in her evidence that she waited till 1 P.M. at the Panchayat Office PW3, the respondent and she left the office together. She rode pillion on Parimal's bicycle. They stopped at a Pan shop about 100 mtrs. from the Panchayat Office for purchasing Pan. As they were purchasing Pan the respondent came to the Pan shop on foot. DW2 also deposed that on 5 August, 2015 at about 1.15 P.M. the respondent, Parimal and Jevanti came to his shop. The learned Magistrate noted that the evidence of PW3, DW1 and DW2 corroborated each other in respect of the matter that the respondent came out from the Panchayat Office alongwith DW1 and PW3 and went to the Pan shop.

d. According to PW1 (defacto complainant), she told her father about the incident next morning. Then her father took her to PW6. However, PW6 in her cross examination stated that on 6 August, 2015 she did not meet the father of the defacto complainant. The father of the defacto complainant (PW7) also stated in his evidence that he did not meet PW6 on 6 August, 2015.

These inconsistencies in the prosecution evidence was one of the reasons for the learned Magistrate to give the benefit of doubt to the respondent.

It has also been noted by the learned Magistrate that the PW6 in her cross examination confirmed that there was an oral altercation between herself and the respondent in respect of engagement of the defacto complainant as Peon without the consent of the respondent. Thus the possibility of a conspiracy being hatched by the PW6 and the defacto complainant to embroil the respondent in a criminal case cannot be ruled out.

It is also on record as part of deposition of DW1 that on 5 August, 2015 i.e. the date of the incident, DW1 went to the Panchayat Office at about 9.30 A.M. The respondent had not yet arrived in the office. She went to the chamber of the Secretary and took her seat. She found two other persons sitting there namely the defacto complainant and Parimal (PW3). After sometime the respondent came to his office and called the defacto complainant and admonished for not cleaning the table and not pouring water in the bottle. This statement of DW1 was not questioned in cross examination. Hence it is possible that the defacto complainant fabricated the story of her modesty having been outraged by the respondent out of anger and spite since she was shouted at by the respondent.

One would normally outrage the modesty of a woman if the person feels physically attracted towards that woman. It is normally done to derive a carnal pleasure. If the respondent had a fancy for the defacto complainant which prompted him to touch her from behind around her waist, why would he in the first place create an issue regarding appointment of the defacto complainant as Peon without his consent? I would have thought that he would welcome the appointment, albeit without his consent, as that would enable him to be in close proximity of the defacto complainant. The story somehow doesn't seem very credible. Things do not fit into place.

It is also on record as part of evidence of PW3 that before the appointment of the defacto complainant, other female Daily Rated Mazdoors were working in the Panchayat Office but none of them ever made any allegation of molestation against the respondent.

The learned Magistrate also observed that where there is a sole witness of the incident who is the defacto complainant, his evidence has to be accepted with caution and after testing it on the touchstone of evidence rendered by other witnesses or evidence otherwise recorded. The evidence of a sole eye witness should be cogent, reliable and must essentially fit into a chain of events that have been stated by the prosecution. Learned Magistrate in this regard referred to the decision of the Hon'ble Supreme Court in the case of Joseph vs. State of Kerala, (2003) 1 SCC 465.

Learned Magistrate also referred to the Hon'ble Apex Court decision in the case of Sujit Biswas vs. State of Assam reported in (2013) 12 SCC 406 wherein it was observed that all circumstances proved must be consistent only with the hypothesis of guilt of the accused. If two views are possible, benefit of doubt must go to the accused.

Learned Magistrate referred to the Hon'ble Supreme Court's decision in the case of Hanumant Govind Nargundkar and Another vs. State of Madhya Pradesh reported in AIR 1952 SC 343 wherein it was observed inter alia as follows:-

"Where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

After a detailed analysis of the evidence on record the learned Magistrate came to the following conclusions:-

"1) the circumstances of the present case from which the conclusion of guilt is to be drawn was not fully established without any reasonable doubt.

2) Direct evidence is not consistent and corroborating with evidence of other witnesses.

3) the circumstances of the case is not conclusive in nature.

4) Chain of events is not complete. It is rather doubtful and confusing.

5) In all human probability, situation does not suggest that the act must have been done by the accused.

6) It would not be safe, fair and justified to sentence the accused person on the basis of weak, fragile and doubtful evidence."

Accordingly, the learned Magistrate held that the prosecution has failed to prove the case under Section 354 of the IPC against the respondent beyond reasonable doubt.

I find no infirmity in the judgement of the learned Magistrate. It is a well written judgement. The evidence has been analysed with commendable clarity. Correct principles of law have been applied. On an independent appraisal of the evidence on record I am completely in agreement with the learned Magistrate that there are gaps and loopholes in the case of the prosecution which leave a lurking doubt in the mind as regards the commission of the offence by the respondent. I am ad idem with the learned Magistrate that prosecution has failed to prove its case beyond reasonable doubt. The learned Magistrate was right in giving benefit of doubt to the respondent. I find no reason to interfere with the judgement impugned which is a well-reasoned and logical verdict.

In the result, this appeal fails and is dismissed. Let the Lower Court Records be sent back.