JUDGMENT - N.D. KAMAT, J.:---The appellant Madhusudan Mohanlal Shrivastav (Original accused) has preferred this appeal against the conviction recorded and the sentences of imprisonment and fine imposed upon him by the learned Presidency Magistrate, 29th Court, Dadar, Bombay, under Sections 354 323 of the Indian Penal Code. The complainant Mrs. Hilla Manchersha Batliwala and her husband Dr. Manchersha Batliwala are in occupation of certain premises consisting of 6 rooms and kitchen on the first floor and one room on the second floor of Yasmin Villa" situate at Parel, Bombay, as tenants. Out of these 7 rooms in their occupation as tenants, they have given four rooms on the first floor and the rooms on the second floor to difference persons as paying guests. (P.W. 3) Sorabjee Dalal is one of such paying guests on the first floor of the building and the accused Madhusudan Shrivastav is occupying the room on the second floor since the month of January 1967. From the first floor, there is a staircase leading to the second floor and whenever the accused is to go to his room, he is required to ring the bell near the door on the first floor and then climb up the staircase to his room. Dr. Mancharshar Batliwala was formerly serving on a ship and he is now selling fish. (P.W. 4) Rajuswami is his domestic servant and he also helps Dr. Batliwala in his business of selling fish. The relations between Dr. Manchersha Batliwala and the accused Madhusudan Shrivastav became strained since 1970 and there were complaints and cross-complaints between them. In that very year, Dr. Manchersha Batliwala filed a suit, being Suit No. 73/325 of 1970 in the Court of Small Causes, Bombay seeking to evict the accused Madhusudan Shrivastav from the premises in his occupation. On 5th October, 1972, evidence of the accused Madhusudan Shrivastav was recorded in that case. According to the complainant Mrs. Hilla Batliwala, on the night between 5th and 6th October, 1972, the accused Madhusudan Shrivastav returned home at about 1-30 a.m. and rang the call-bell at the door of the first floor. On 5th October, 1972, evidence of the accused Madhusudan Shrivastav was recorded in that case. According to the complainant Mrs. Hilla Batliwala, on the night between 5th and 6th October, 1972, the accused Madhusudan Shrivastav returned home at about 1-30 a.m. and rang the call-bell at the door of the first floor. On the next day in the morning at about 7.40 a.m., the complainant went to the room of the accused on the second floor in order to request him not to come late at night and disturb her family members in their sleep and also to verify whether all the pieces of furniture given to the accused when he was inducted into the room in January 1967 were still in that room. The complainant knocked at the door of the room of the accused, whereupon the latter opened the door. As soon as the door was opened, the complainant noticed that some of the pieces of furniture given to the accused were not in the room and she questioned the accused about those missing pieces of furniture. The accused told the complainant that he had sold all those pieces of furniture. The complainant told the accused that those pieces of furniture were given to him for being used in the room and not for sale. It is the case of the complainant Mrs. Hilla Batliwala that upon this, the accused lost his temper, stated using vulgar and indecent language against her and he also pulled her to his bed. The accused forcibly put the complainant on his bed and started handling her breasts. The complainants Sadra, night-gown and house coat were torn and she started struggling and screaming for help. On hearing her screams, Dr. Manchersha Batliwala came to the second floor accompanied by (P.W. 3), Sorabjee Dalal. Dr. Manchersha Batliwala pulled the accused who was then lying on the person of the complainant. The accused suddenly picked up a hammer lying on a nearby table and started assaulting Dr. Mancersha Batliwala with that hammer. Dr. Batliwala tried to ward off those hammer blows and the complainant tried to intervenes in that scuffle. Finally Dr. Manchersha Batliwala managed to snatch the hammer from the hands of the accused and the hammer fell down on the floor. (P.W. 3), Sorabjee Dalal put his foot on that hammer, lest the accused may again pick up that hammer and assault Dr. Finally Dr. Manchersha Batliwala managed to snatch the hammer from the hands of the accused and the hammer fell down on the floor. (P.W. 3), Sorabjee Dalal put his foot on that hammer, lest the accused may again pick up that hammer and assault Dr. Mancersha Batliwala. The accused however, gavekicks on the abdomen of Dr. Manchersha Batliwala and managed to throw him on the bed. He also throttled Dr. Batliwala with one had and tried to thrust his fingers in the eyes of Dr. Batliwala. The complainant screamed and on hearing those screams, (P.W. 4), Rajuswami came to the second floor. He found that the accused was on the top of Dr. Manchersha Batliwala on the bed. Rajuswami and (P.W. 3), Sorabjee Dalal pulled the accused aside and rescued Dr. Manchersha Batliwala. The complainant Mrs. Hilla Batliwala and Dr. Manchersha Batliwala then asked (P.W. 3), Sorabjee Dalal and (P.W. 4), Rajuswami to remain at the same offence only, lest the accused may do away with the hammer and both of them went down to their premises on the first floor and gave a ring to the police. Within a short time the police arrived in a van and they took the accused Madhusudan Shrivastav to the Police Station at Bhoiwada. The complainant Mrs. Hilla Batliwala and her husband Dr. Manchersha Batliwala also went to the Police Station in their own car. P.S.I. Musale, who was then in charge of the Police Station, sent the complainant Mrs. Hilla Batliwala, Dr. Batliwala and the accused Madhusudan Shrivastav to the K.E.M. Hospital for examination and treatment of the injuries noticed on their person. Dr. Sawardekar of the K.E.M. Hospital examined the complainant Mrs. Hilla Batliwala in the K.E.M. Hospital at 9.15 a.m. and he noticed the following injuries on her person :--- (1) Abrasion over chest in madline about 4" in length. (2) Abrasion on left cheek about 2". (3) Abrasion right fore-arm dorsal aspect 4", and (4) Abrasion right fore-arm palmer aspect 4". When the complainant was examined Dr. Swardekar, the history that was given to him was of assault with fists and hammer. Dr. Sawardekar also examined the accused Madhusudan Shrivastav and he noticed the following injuries on the person of the accused : (1) Abrasion over right cheek ½" ¾" (2) Ecchymosis over left eye-brow, and (3) Small Abrasion over right chest ½" away from manubrium. Swardekar, the history that was given to him was of assault with fists and hammer. Dr. Sawardekar also examined the accused Madhusudan Shrivastav and he noticed the following injuries on the person of the accused : (1) Abrasion over right cheek ½" ¾" (2) Ecchymosis over left eye-brow, and (3) Small Abrasion over right chest ½" away from manubrium. According to P.S.I. Musale, who was attached to the Bhoiwada Police Station since the year 1968, the complainant Mrs. Hilla Batliwala and Dr. Manchersha Batliwala were familiar figures in the Police Station as they were filing complaints against their neighbours and persons in the neighbourhood and some of the complaints lodged by them were also found to be false and were classified as such. He, therefore, delayed recording of the complaint which the complainant Mrs. Hilla Batliwala wanted to file against the accused. However, the complainant Mrs. Hilla Batliwala and Dr. Batliwala complained to the Commissioner of Police and eventually, the complainants complaint came to be recorded on that night at about 9.30 p.m. P.S.I. Musale carried on the necessary investigation and eventually charge-sheeted the accused Madhusudan Shrivastav in the Court of the Presidency Magistrate, 29th Court, Dadar, Bombay, for offences under section 354 and 323 of the Indian Penal Code. The accused Madhusudan Shrivastav stoutly denied the charge and pleaded not guilty. He put forth a plea that on account to his evidence given in the Court of Small Causes, Bombay, on 5th October, 1972, the complainant Mrs. Hilla Batliwala and her husband Dr. Batliwala were up-set and they did not permit the newspaper boy to come up to his room and consequently, he and complaint to Dr. Manchersha Batliwala, but he came up along with (P.W. 3), Sorabjee Dalal and assaulted him. The complainant came to the second floor later on to see what was happening there. He also put forth a further plea that the complainant. Mrs. Hilla Batliwala and Dr. Manchersha Batliwala were harassing him in numerous ways and they had filed an entirely false case with a view to send him behind the bars. At the trial, the prosecution examined the complainant Mrs. Hilla Batliwala, Dr. Manchersha Batliwala, (P.W. 3), Sorabjee Dalal and (P.W. 4), Rajuswami as eye-witnesses of the alleged incident. Dr. Mrs. Hilla Batliwala and Dr. Manchersha Batliwala were harassing him in numerous ways and they had filed an entirely false case with a view to send him behind the bars. At the trial, the prosecution examined the complainant Mrs. Hilla Batliwala, Dr. Manchersha Batliwala, (P.W. 3), Sorabjee Dalal and (P.W. 4), Rajuswami as eye-witnesses of the alleged incident. Dr. Shashank Shah of the K.E.M. Hospital deposed about the injuries which were noticed on the person of the complainant and on the person of the accused by Dr. Sawardekar in the morning of 6th October, 1972. P.S.I. Musale deposed about the steps taken by him during the course of the investigation. After taking into consideration the evidence of all these witnesses and the statement of the accused Madhususan Shrivastav under section 342 of the Code of Criminal Procedure, the learned trial Magistrate came to the conclusion that the prosecution had failed to prove, beyond a reasonable doubt, that the accused had voluntarily caused any hurt to Dr. Manchersha Batliwala and he, therefore, acquitted the accused of the offence of voluntarily causing simple hurt to Dr. Manchersha Batliwala. He, however, held that the prosecution had succeeded in showing that the accused had used criminal force to the complainant Mrs. Hilla Batliwala intending to outrage or knowing it to be likely that he would thereby outrage her modesty and he, therefore, convicted the accused under sections 354 and 323 of the Indian Penal Code and sentenced him to S.I. till the rising of the Court to pay a fine of Rs. 300/- or in default R.I. for one month on the first count, and to pay a fine of Rs. 25/- or in default S.I. for 7 days on the second count. He also directed that if the amount of fine was recovered, a sum of Rs. 100/- should be paid to the complainant Mrs. Hilla Batliwala by way of compensation. Being aggrieved by the convictions recorded and the sentences of imprisonment and fine imposed by the learned trial Magistrate, the accused Madhusudan Shrivastav has come up in appeal to this Court and he has filed Criminal Appeal No. 1135 of 1974. The State has also filed Criminal Appeal No. 769 of 1974 praying for enhancement of the sentence imposed on the accused by the learned trial Magistrate. According to the State, the sentence of S.I. for one day and fine Rs. The State has also filed Criminal Appeal No. 769 of 1974 praying for enhancement of the sentence imposed on the accused by the learned trial Magistrate. According to the State, the sentence of S.I. for one day and fine Rs. 300/- imposed by the learned trial Magistrate for the offence under section 354 of the Indian Penal Code is grossly inadequate and it should, therefore, be enhanced. Mr. Baadkar, learned Counsel for the appellant-accused, urged that the learned trial Magistrate had committed a very serious error in coming to the conclusion that the prosecution had succeeded in proving that the appellant-accused is guilty of the offences under section 354 and 323 of the Indian Penal Code. According to Mr. Baadkar, the learned trial Magistrate could have easily come to the conclusion that the complainant Mrs. Hilla Batliwala and her husband Dr. Manchersha Batliwala had every motive to file a false complaint against the accused with a view to evict him from the premises in his occupation and that the evidence of the so-called four eye-witnesses, besides being the evidence of highly interested witnesses, also bristles with inherent improbabilities and clearly points out to the conclusion that no incident, as alleged by the complainant, had taken place in the room of the accused in the morning on that day. Mr. Baadkar further pointed out that the entire superstructure of the story of the complainant and her husband is built on the foundation that on 6th October, 1972 in the morning, the complainant claims to have gone to the room of the accused in order to see whether the pieces of furniture given to him for use at the time when he was inducted into the room in January 1967 were still there, but this very foundation had been found to be false by a Court of competent jurisdiction. In this connection, he pointed out that on the very day on which the present complaint was lodged by the complainant, she had also filed another complaint in the same Court saying that the accused had committed criminal breach of trust in respect of those pieces of furniture and he was, therefore, liable to be convicted under section 406 of the Indian Penal Code. That case was numbered as Criminal Case No. 91/S of 1973 and it was decided by the very Magistrate who decided the case giving rise to this appeal. That case was numbered as Criminal Case No. 91/S of 1973 and it was decided by the very Magistrate who decided the case giving rise to this appeal. It was held that the oral evidence of the complaint and her witnesses was unworthy of acceptance and that the complaint had even gone to the length of fabricating a false document to support her case of entrustment of those pieces of furniture. A copy of that judgment is produced in this appeal and it is included in the paper book. Mr. Gumaste, learned Counsel appearing for the complainant Mrs. Hilla Batliwala, urged that the judgment in Criminal Case No. 91/S of 1973 is in admissible in evidence and it cannot be looked into by this Court. I do not think that Mr. Gumaste is right in making this legal submission. In this case, the complainant has come forth with a story that several pieces of furniture were given to the accused for use when he was inducted into the room on the second floor of Yasmin Villa in January 1967 and on 6th October, 1972 at about 7.40 a.m., she went to that room in order to see whether those pieces of furniture were still in that room. The contention of the accused in this connection is that no pieces of furniture were ever given to him by the complainant or her husband and the whole of this story put forth by the complainant is a false one. The accused is, therefore, in my opinion, entitled to point out to the Court that this part of the story put forth by the complainant is a false one. Under section 11 of the Indian Evidence Act, facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact. The result of the Criminal Case No. 91/S of 1973 is certainly inconsistent with the story of the complainant that she had given pieces of furniture she had gone to the room in the morning of 6th October, 1972 in order to see whether those pieces of furniture were still in that room. The judgment in Criminal Case No. 91/S of 1973 is, therefore, in my opinion, not only relevant, but also admissible in evidence to this case. The judgment in Criminal Case No. 91/S of 1973 is, therefore, in my opinion, not only relevant, but also admissible in evidence to this case. This judgement clearly shows the falsity of the initial part of the story put forth by the complainant in this case. When the initial part of the story put forth by the complainant that on 6th October, 1972 in the morning at about 7.40 a.m. she went to the room of the accused in order to see whether those pieces of furniture were still there is thus found to be false, the further part of her story that when she asked the accused about those pieces of furniture, the accused suddenly lost his temper and started indulging in giving vulgar and indecent abuses can hardly be accepted. If no pieces of furniture at all had been given by the complainant and her husband to the accused, there could possibly be no occasion for the complainant, firstly to go to the room of the accused in order to ascertain whether those pieces of furniture were still there and secondly, to enter into an alteration with the accused on finding that those pieces of furniture were not there. If this material part of the story put forth by the complainant is thus found to be not acceptable, the story of the accused that when he went down and complained to Dr. Manchersha Batliwala as to why the newspaper boy had not been allowed to come up, Dr. Manchersha Batliwala and (P.W. 3) Sorabjee Dalal came up and assaulted him becomes more probable. The complainant Mrs. Hilla Batliwala has no doubt stated in her evidence that after indulging in using vulgar and indecent language against her, the accused pulled her to his bed, tore her clothes and started handling her breasts. In support of this part of the evidence given by the complainant Mrs. Hilla Batliwala, the prosecution strongly relies upon the injuries on her person and on the circumstances that her clothes were torn. As regards the injuries, there were four abrasions on the person of the complainant. In support of this part of the evidence given by the complainant Mrs. Hilla Batliwala, the prosecution strongly relies upon the injuries on her person and on the circumstances that her clothes were torn. As regards the injuries, there were four abrasions on the person of the complainant. According to her, the abrasion 4" in length over her chest and the abrasion 2" in length on her left cheek were accused when the accused used criminal force against her and the third and fourth abrasions, each" in length, were accused when she tried to intervenes in the scuffle which was going on between the accused and Dr. Manchersha Batliwala. Dr. Shanshank Shah has, however, stated in his evidence that linear abrasions can be caused by a nail, but in that case the injuries would be broader. He, therefore, seems to be of the opinion that the injuries noticed on the person of the complainant were not caused by a nail. It appears that the injuries on the person of the complainant were 2" and 4" in length, and they were very thin. The suggestion of the defence in this connection is that such injuries could very easily be caused by the complainant herself or by her husband, who being a doctor, must be having some instrument in his possession. In any case, the medical evidence does not corroborate the version of the complainant completely. The other circumstance that her clothes were torn is by itself not of much avail because this circumstance could easily be brought about if the complainant and her husband meant to do so. It is their own case that after the scuffle in the room on the second floor ended, they went down to their own premises after having asked (P.W. 3). Sorabjee Dalal and (P.W. 4) Rajuswami to remain there, lest the accused may remove the hammer. The police arrived sometime thereafter and it cannot, therefore, be said that there was no time at all in the intervening period at the disposal of the complainant and her husband. The complainants evidence is also sought to be corroborated by the evidence of (P.W. 2), Dr. Manchersha Batliwala and (P.W. 3), Sorabjee Dalal. (P.W. 2), Manchersha Batliwala is the husband of the complainant and his relations with the accused were admittedly very much strained since the very 1970. The complainants evidence is also sought to be corroborated by the evidence of (P.W. 2), Dr. Manchersha Batliwala and (P.W. 3), Sorabjee Dalal. (P.W. 2), Manchersha Batliwala is the husband of the complainant and his relations with the accused were admittedly very much strained since the very 1970. There were complaints and cross-examination between them and an evidence suit was also filed and it was pending in the Small Causes Court at that time. The accused had also given evidence denying entrustment of the furniture just on the previous day. Dr. Manchersha Batliwala claims to have gone to the room on the second floor on hearing the screams of his wife. He found the accused on the top of his wife and he pulled him back. It is the case of Dr. Manchersha Batliwala that even though he found the accused on the top of his wife, he did not assault him, but merely pulled him back and it was the accused who picked up a hammer and started assaulting him. This story appears to me to be rather improbable. Any person placed in that situation would have at least lost his temper and tried to assault the person who was actually on the top of his wife and all the more so, if his relations with that person were very much strained since prior to that date. The accused is said to have picked up a hammer and he is also said to have tried to assault Dr. Manchersha Batliwala with that hammer. Dr. Manchersha Batliwala, however, managed to snatch that hammer and it fell on the floor. At the instance of Dr. Manchershar Batliwala. (P.W. 3), Sorabjee Dalal put his foot on that hammer, lest the accused may pick it up and throw it away. Even then, when the police arrived there within a short time. (P.W. 3), Sorabjee Dalal and not point out that hammer to the police. But on the other hand, Dr. Manchershar Batliwala claims to have picked up that hammer and taken it to his premises but on the first floor. He also took it with him to the Police Station in his motor car, but did not produce it before the police. According to his evidence, the hammer continued to remain with him. But on the other hand, Dr. Manchershar Batliwala claims to have picked up that hammer and taken it to his premises but on the first floor. He also took it with him to the Police Station in his motor car, but did not produce it before the police. According to his evidence, the hammer continued to remain with him. It is indeed surprising that the hammer which is alleged to have been used by the accused as a weapon of offence was not shown to the police and it was also not produced before the police and Dr. Manchersha Batliwala contained to retain it with himself at these days. It is also the case of Dr. Manchershar Batliwala that the accused pushed him on his bed, caught him near the neck and tried to throttle him and also pierced his fingers into his eyes and there were injuries on his person. The medical evidence in the does not show that Dr. Sawardekar examined Dr. Manchersha Batliwala or that he noticed any injuries on the person of Dr. Batliwala . The learned trial Magistrate has acquitted the accused of the offence of voluntarily causing hurt to Dr. Batliwala and the State has not come up in appeal against that part of the judgment of the learned trial Magistrate. When the accused acquitted of this charge and there is no appeal against that order of acquittal it becomes extremely difficult to accept Dr. Manchersha Batliwalas case that the accused tried to assault him with a hammer and that he even pushed him on the bed and tried to throttle him by catching near the neck etc. (P.W. 3), Sorabjee Dalal has also tried to corroborate the story put forth by the complainant and her husband Dr. Manchersha Batliwala. But his evidence also suffers from a number of serious infirmities. In the first place, he is admittedly residing on the first of Yasmin Villa as a paying guest of the complainant and he takes his dinner with the complainant and her husband. The complainant and her husband had even taken him on a trip with them for about there months. He is, therefore, naturally interested in supporting the case of the complainant. Secondly, his conduct is most unnatural. Although he claims to have followed Dr. The complainant and her husband had even taken him on a trip with them for about there months. He is, therefore, naturally interested in supporting the case of the complainant. Secondly, his conduct is most unnatural. Although he claims to have followed Dr. Manchersha Batliwala in his footsteps, he claims to have merely stood silently witnessing the incident without trying to intervene and stop the scuffle. He merely claims to have put his foot on the hammer and that too when he was asked to do so by Dr. Manchersha Batliwala, lest the accused may pick up that hammer. But when the police arrived at the scene of offence, this witness did not even point out that hammer to the police. The conduct of this witness is, therefore, clearly most unnatural and he seems to have come forward only to support the case of the prosecution. (P.W. 4), Rajuswami is admittedly the domestic servant of the complainant and he does not claim to have seen the initial part of the incident. According to him, when he went to the room on the second floor, he merely saw the accused assaulting. Dr. Manchersha Batliwala and trying to throttle him by catching near the neck. The prosecution story that Dr. Manchersha Batliwala was assaulted by the accused has already been rejected and the evidence of (P.W. 4), Rajuswami is, therefore, clearly not of much avail to the prosecution. Moreover, he also does not claim to have run up to the second floor on hearing the screams of Mrs. Hilla Batliwala. He heard the screams when he was laying the table for breakfast. (P.W. 3), Sorabjee Dalal came to him and asked him as to who was screaming. If Rajuswami could make out who was screaming, Dalal also could have easily made out a to who was screaming. In any case, on hearing the screams, a domestic servant would have immediately run up to the place of offence rather than wait for Dalal to come to him for making inquiry as to who was screaming and then to go to the scene of offence sometime after Dalal went to the scene of offence. This conduct of (P.W. 4), Rajuswami is, therefore, in my opinion, very unnatural and his evidence cannot, therefore, be accepted. This conduct of (P.W. 4), Rajuswami is, therefore, in my opinion, very unnatural and his evidence cannot, therefore, be accepted. From the above discussion of the evidence on record and the circumstances in the case, I find it extremely difficult to come to the conclusion that the evidence of the four so-called eye-witnesses is worthy of acceptance. In any case, in my opinion, it would be extremely hazardous to base a conviction on the oral testimony of such witnesses whose conduct is shown to be unnatural and their evidence is shown to be unworthy of acceptance. In this state of the evidence on record, the learned trial Magistrate was not right in convicting the accused of such a serious offence as the one under section 354 of the Indian Penal Code. Criminal Appeal No. 1135 of 1974 is, therefore, allowed. The convictions recorded and the sentences of imprisonment and fine imposed by the learned trial Magistrate on the appellant-accused, Madhusudan Shrivastav are set aside and this accused is acquitted of both the offences with which he was charged. The amount of fine, if paid, shall be refunded to him. His bail bond shall stand cancelled. In view of the decision in Criminal Appeal No. 1135 of 1974, Criminal Appeal No. 769 of 1974 filed by the State for enhancement does not survive. It shall stand dismissed. -----