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2003 DIGILAW 222 (ORI)

Ajaya Kumar Das alias Kanka v. State of Orissa

2003-03-11

A.S.NAIDU

body2003
JUDGMENT A. S. NAIDU, J. — The petitioner was accused in G.R. Case No.1044 of 1993 in the Court of the J.M.F.C., Baripada. He was alleged to have committed an offence under Section 354 of the Indian Penal Code for outraging the modesty of a woman. It was alleged that on 1.11.1993 at about 4 p.m. while the informant and his wife were witnessing a ‘Mela’, the petitioner moved his hands on the private part of the wife of the informant. The petitioner was caught red-handed by the informant and his wife. During trial, in order to prove its case, prosecution examined five witnesses, of whom P.W.1 was the informant, P.W.2 was the wife of the informant, the victim, P.Ws 3 and 4 were two independent witnesses and P.W.5 was the A.S.I. of police, the investigating officer. P.W.2, in her deposition in Court categorically stated that the petitioner touched her private part while she was wit¬nessing the ‘Mela’. Immediately thereafter she (P.W.2) called her husband P.W.1 who was a little ahead of her and P.W.1 caught hold of the petitioner red-handed and informed the matter to police. The evidence of P.W.2 was not shaken in any manner in cross-examination. As a matter of fact, she was not at all cross-examined by the defence. The informant P.W.1 who was the husband of the victim, corroborated the evidence of P.W.2. P.Ws. 3 and 4 who were independent witnesses also stated on solemn affirmation that they were near the place of occurrence when they heard the shouts of P.Ws 1 and 2. P.W.5, the investigating officer, also supported the prosecution case. Nothing was elicited on cross-examination of the prosecution witnesses by the defence to dis¬credit their statements. The defence plea was a complete denial and it was also submitted that out of previous enmity the case had been falsely foisted against the accused. 2. After vivid discussion of the evidence, the J.M.F.C. found the petitioner guilty under Section 354 IPC, convicted him thereunder and sentenced him to undergo rigorous imprisonment for eight months by judgment dated 30th May, 2002. The said judgment of the J.M.F.C. was challenged by the petitioner before the Sessions Judge, Mayurbhanj, Baripada in appeal. The said appeal was finally heard by the Ad hoc Addl.Sessions Judge (Fast Track Court), Baripada being numbered as Criminal Appeal No. 121/18 of 2002. The said judgment of the J.M.F.C. was challenged by the petitioner before the Sessions Judge, Mayurbhanj, Baripada in appeal. The said appeal was finally heard by the Ad hoc Addl.Sessions Judge (Fast Track Court), Baripada being numbered as Criminal Appeal No. 121/18 of 2002. The appellate Court also discussed the evidence in extenso and came to the conclusion that the prosecution had well estab¬lished the charge under Section 354 IPC against the petitioner beyond all reasonable doubts. The appeal was thus dismissed and the conviction and sentence passed by the J.M.S.C. were con¬firmed. The petitioner in this Criminal Revision has impugned the aforesaid confirming judgment. 3. I have heard the learned counsel for both sides and perused the judgments of conviction and order passed by the Courts below as also the materials on record. It appears that both the Courts below after discussing the evidence, both oral and documentary, came to right conclusion. Learned counsel for the petitioner failed to point out any error, either on fact or law, committed by the Courts below. 4. After going through the materials on record, I am not inclined to interfere with the judgment of conviction, but then I find that the matter was very trifling one. It cannot be said with conviction that while moving in a ‘Mela’ crowded with peo¬ple, one’s hand would not touch the person of others. The Courts below have not kept this aspect in mind nor have discussed in their judgments as to whether the petitioner had intentionally touched the private part of P.W.2. The evidence on that aspect is also lacking. At the same time it should also be kept in mind that a person should not be so careless as to allow his hand to touch the private part of a woman moving near him. Considering the facts and circumstances of the case, particularly the place where the alleged overt act was committed, I feel that ends of justice and equity will be better served if the conviction of the petitioner is maintained and the sentence of rigorous imprison¬ment for eight months is modified, and instead exemplary fine is imposed on him. Accordingly, while maintaining the conviction of the petitioner under Section 354 IPC I direct that instead of the sentence of rigorous imprisonment for eight months, the petition¬er shall pay a fine of Rs. Accordingly, while maintaining the conviction of the petitioner under Section 354 IPC I direct that instead of the sentence of rigorous imprisonment for eight months, the petition¬er shall pay a fine of Rs. 3,000/- (Three thousand) in default to undergo rigorous imprisonment for eight months. Out of the fine amount, a sum of Rs. 2,000.00 (Two thousand) shall be paid to the victim, P.W.2. The Criminal Revision is accordingly allowed. Crl. Revision allowed.