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2015 DIGILAW 1979 (BOM)

Manohar v. State of Maharashtra

2015-08-24

A.B.CHAUDHARI

body2015
JUDGMENT: A.B. Chaudhari, J. (Oral) Being aggrieved by judgment and order dated 22.05.2000 in Sessions Trial No. 100/1999, passed by Additional Sessions Judge, Yavatmal, thereby convicting the appellant for the offence punishable under Sections 354 of the IPC and sentenced to suffer rigorous imprisonment for two years and fine of Rs. 5,000/-, in default to undergo further rigorous imprisonment for six months, the present appeal was filed. FACTS: 2. In brief, it is the case of the prosecution that the appellant-accused was residing as tenant in the house of PW-6- Lilabai Jivtode. The deceased Ku. Sangita with her parents was residing abutting the house of Lilabai and, in fact, the ingress and egress of the deceased and her family members was from the courtyard of the house of PW6-Lilabai. On 26.02.1999, PW4- Haridas, father of the deceased, had gone to the field for some work while her mother Chandrabhaga i.e. the wife of PW4-Haridas was sitting at the house of one Hengde. At about 9.00 p.m. Sangita was returning after answering the nature's call and was passing through the courtyard of Lilabai, accused caught hold of breasts of Ku. Sangita. Therefore, Ku. Sangita shouted and immediately her mother Chandrabhaga went to the spot to find her weeping. Chandrabhaga, her mother then abused the appellant. People assembled at the spot. Thereafter, the accused ran away from the spot. In the morning of 22.02.1999, PW4- Haridas returned to the house. Chandrabhaga narrated the entire incident to her husband on which he stated that he will make enquiry before coming to any conclusion. The deceased Ku. Sangita came back from the School. At that time her parents had been to the fields. She consumed poison and committed suicide. Report wad lodged by complainant Haridas on which accidental death was registered. During investigation, statements of the witnesses were recorded, charge-sheet was filed, the trial was held evidence was recorded, the learned trial Judge ultimately concluded that no offence of abetment was proved but offence under Section 354 of the IPC was proved. Therefore, he recorded order of conviction accordingly. ARGUMENTS: 3. Mr. Naik, learned counsel for the appellant, submitted that there is no direct evidence insofar as the offence under Section 354 of the IPC is concerned. Therefore, he recorded order of conviction accordingly. ARGUMENTS: 3. Mr. Naik, learned counsel for the appellant, submitted that there is no direct evidence insofar as the offence under Section 354 of the IPC is concerned. Even her mother Chandrabhaga who was sitting at a distance of 5-6 feet from the spot of incident did not see the incident proper and claims that she had heard shouts only and then Ku. Sangita told the incident to her. Similar is the case with PW6-Lilabai. These are the only two women witnesses who claimed to have heard what Ku. Sangita told them. Learned counsel for the appellant then argued that in the cross-examination, it has been admitted by PW6-Lilabai that family members of the accused were also present on the spot, obviously because the appellant, being the tenant of PW6-Lilabai, was bound to be present on the courtyard. According to the learned counsel, it was highly impossible that such an incident could take place in presence of the family members of the appellant. He then submitted that at any rate, going to the root of the matter, learned trial Judge took assistance of Section 6 and 8 of the Evidence Act, which is not at all applicable and hearsay evidence cannot be believed to record an order of conviction. At any rate, according to him, if Exh. 16 is seen, the same was lodged after the incident of assault that is the one that was narrated by deceased Ku. Sangita. But in spite of being informed the same to PW4 Haridas and he having found his daughter committing suicide, Exh. 16 does not say a word about the cause of commission of suicide namely; the alleged incident of outraging the modesty. According to the learned counsel for the appellant, after lodging the FIR, a story was created in order to implicate the appellant in an offence for which conviction has been recorded. He, therefore, submitted that there is no other evidence to convict the appellant and the conviction is on the basis of figment of imagination. He, therefore, prayed for acquittal of the appellant. In support of his submissions, Mr. Naik, learned counsel for the appellant relied on judgment in Kashi Nath Panday v. Emperor; AIR (29) 1942 Calcutta 214. 4. Per contra, Mr. He, therefore, prayed for acquittal of the appellant. In support of his submissions, Mr. Naik, learned counsel for the appellant relied on judgment in Kashi Nath Panday v. Emperor; AIR (29) 1942 Calcutta 214. 4. Per contra, Mr. Patil, learned A.P.P. supported the impugned order and submitted that the evidence could not be a hearsay evidence, if seen in the light of Sections 6 and 9 of the Evidence Act. He submitted that the FIR Exh.-16 was lodged but then there is evidence on record to show that it was thought not proper to lodge a report by father of the deceased PW4-Haridas since in the villages, such incidents are not reported to the Police Station. He then submitted that even if Exh.-16 was silent about the incident of outraging the modesty but that does not mean that the other evidence on record from PW5-Chandrabhaga and PW6- Leelabai cannot be believed. The learned trial Judge rightly believed the evidence and admitted the evidence and convicted the appellant. CONSIDERATION: 5. I have seen the impugned judgment and records relied upon by the learned trial Judge. It is not in dispute, as stated by Mr. Patil, learned A.P.P. that the State Government did not prefer any appeal against the order of acquittal of the appellant of the offence punishable under Section 306 of the IPC. Therefore, the only thing which is to be seen is as to whether the conviction under Section 354 of IPC can be sustained. On that question, the learned trial Judge has placed reliance on Section 6 and 8 of the Evidence Act and held that the evidence of PW4-Haridas, PW5 Chandrabhaga and PW6-Leelabai is not hearsay evidence. However, I find from the judgment cited by the learned counsel for the appellant that the following dicta appears to be a legal and correct position, which I quote hereunder. "The general rule is of course, qualified by statutory exceptions, but none of those exceptions, as stated in the Evidence Act, appear to apply to the facts of the present case. In our opinion therefore evidence of statements made by the child to other people, or of conduct amounting to a statement, is not admissible against the appellant. We are fortified in this view by the decision in R. v. Brasier (1799) 168 E.R. 202. In our opinion therefore evidence of statements made by the child to other people, or of conduct amounting to a statement, is not admissible against the appellant. We are fortified in this view by the decision in R. v. Brasier (1799) 168 E.R. 202. While this case is more often referred to in the text books as an authority on the question of the competency of an infant witness to depose, and for the proposition that the testimony of such a witness must be given on oath, it went further and laid down, as the unanimous opinion of twelve Judges, that information relative to an alleged assault given to other persons by a child who was not examined as a witness, was not receivable. The facts of that case were practically identical with those now in question. The case was proved by the mother of the child and another woman, to whom the child had told the circumstances of the injury done to her. The only corroborative evidence was that the prisoner lodged at the place she had described, that she had received some injury, and that when she saw him next day, she declared he was the man. It was held that evidence of her statements ought not to have been received, and this decision, given in 1799, was followed in a subsequent case R. v. Tucker (1808) 1 Phil. & Arn. Ev., 10th Edn. This appeal must accordingly be allowed." 6. Apart from the above factual legal position what is significant in this case is that PW5-Chandrakala narrated the incident of night to her husband PW4-Haridas but he stated that he would make enquiry from his daughter and then would decide what to do. He was at the house at about 11.00 a.m. and then left for his work. After return from his work, he found that his daughter consumed poison and committed suicide. He lodged the report Exh.-16. Perusal of the report Exh.-16 clearly shows that the report to the police is about the fact of commission of suicide by his daughter and, therefore, the police registered accidental death to proceed to find out cause of death and then to make further investigation. It is surprising that his daughter having died because of the earlier incident of outraging the modesty which was never the prosecution case. It is surprising that his daughter having died because of the earlier incident of outraging the modesty which was never the prosecution case. In normal course, the police is bound to ask the question while accepting the FIR as to the reasons of committing suicide. He knew the entire incident regarding outraging modesty which was narrated to him by his wife and he also stated that he would make enquiry and then decide what to do. He did not state about the said incident as a cause for commission of suicide. This is highly suspicious circumstance emerging in the instant case. 7. The next question is testing veracity of the evidence of the prosecution witness. Admittedly, there is no direct evidence about the offence of outraging modesty. It is really strange that when PW5-Chandrabhaga was sitting at a distance of 5-6 ft. so also PW6-Lilabai was with her, both of these two ladies claims to have not seen the incident proper which appears to be wholly improbable. That all the houses are abutting each other, the women folk have been sitting in front of the house and still what is going on in the courtyard is not seen by them. It, therefore, appears that the prosecution is not coming out with the genesis of the prosecution case about the incident of outraging modesty. At any rate, looking to the conduct of the witnesses and the improbabilities, I think section 6 and 8 of the Evidence Act cannot be pressed into service in the present case and consequently evidence of PW4-Haridas, PW5-Chandrabhaga and PW6-Lilabai, must be held to be heresy evidence, not admissible in evidence and consequently it would be then held that offence relating to the outraging modesty of Ku. Sangita, who was no more, was not at all proved. 8. In that view of the matter, the appeal must succeed. Hence, following order is passed. ORDER (i) Criminal Appeal No. 189/2000 is allowed. (ii) The impugned judgment and order dated 22.05.2000 in Sessions Trial No. 100/1999, passed by Additional Sessions Judge, Yavatmal, thereby convicting the appellant-Manohar Madhavrao Bhele, for the offence punishable under Sections 354 of the IPC and sentencing him to suffer rigorous imprisonment for two years and fine of Rs. 5,000/-, in default to undergo further rigorous imprisonment for six months is quashed and set aside. 5,000/-, in default to undergo further rigorous imprisonment for six months is quashed and set aside. (iii) Fine, if any paid by the appellant shall be refunded to the appellant.