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2017 DIGILAW 1787 (BOM)

Umesh Dharamdas Landge v. State of Maharashtra

2017-09-01

SWAPNA JOSHI

body2017
JUDGMENT : 1. This appeal has been directed against the judgment and order passed by the learned 6th Ad hoc Additional Sessions Judge, Nagpur in Sessions Trial No. 558 of 2001 delivered on 13-06-2003, whereby the learned trial Judge had convicted the accused under Section 354 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.2000/-, in default, to suffer simple imprisonment for 2 months. 2. I have heard Mrs. Shamsi Haider, the learned Additional Public Prosecutor for the State. The appellant and his counsel remained absent. With the assistance of the learned APP, I have gone through the record of the case. 3. The prosecution case, in nutshell, is that: In the year 2001, the victim was residing with her mother at Antuji Nagar, Police Station Kotwali, Nagpur. The father of the victim expired about 4 to 5 months prior to the incident. At the relevant time, the victim was studying in 7th standard in Jayvijar Primary School, Bhandewadi. Her mother was doing a labour work at Kalmana Market, Nagpur. The appellant/accused was also residing at Antuji Nagar, Nagpur. On the date of incident i.e. on 27-06-2001, the appellant/accused came to the house of the victim in presence of the mother of the victim. The appellant/accused told them that his mother and sister had gone to attend a marriage and requested the mother of the victim to wash used utensils. At the request of the appellant/accused, the mother of the victim sent the victim to the house of the appellant/accused for washing the used utensils. At about 10.30 am, the victim went to the house of the appellant/accused. When she entered inside the house of the appellant/accused, the appellant/accused caught hold of her hands, made her to fall down and tried to lift her skirt in upward direction. The appellant/accused also started pressing the breast of the victim. On this, the victim raised an alarm and gave a jerk to him. The victim succeeded in rescuing herself from the clutches of the appellant/accused. She rushed to her house. At that time, her mother was present in her house. The victim disclosed the incident to her mother. The mother of the victim along with the victim proceeded to the house of the appellant/accused. However, the house of the appellant/accused was found locked and the appellant/accused was not found there. She rushed to her house. At that time, her mother was present in her house. The victim disclosed the incident to her mother. The mother of the victim along with the victim proceeded to the house of the appellant/accused. However, the house of the appellant/accused was found locked and the appellant/accused was not found there. The victim and her mother returned to their house. The mother of the victim thought as to what is to be done in the matter and on the next day they proceeded to the Police Station. The complaint of the victim was recorded by the Police of Kotwali Police Station. On the basis of the said report, Dattatraya Shinde (PW-10) registered the offence. The complaint is at Exhibit-7. Bramha Shelke (PW-11) recorded the spot panchanama (Exhibit-21). He carried out the further investigation in the matter. The appellant/accused was arrested and after completion of the investigation PW-11 submitted the charge-sheet against the appellant/accused. The case was committed to the Court of Sessions. The learned trial Judge framed the charge. After conducting the trial and on analysis of the evidence, the learned trial Judge was convicted the appellant/accused as aforesaid. 4. Mrs. Shamsi Haider, the learned A.P.P. vehemently argued that after careful scrutiny of the testimony of Amrapali (PW-1) who was the victim and Manda (PW-2) who was the mother of the victim, the learned trial Judge has come to the conclusion that the appellant/accused has committed an offence punishable under Section 354 of the IPC and has rightly convicted the accused. 5. In order to substantiate its case, the prosecution has heavily relied upon the testimony of victim (PW-1) and her mother (PW-2). Unfortunately, the witnesses to whom PW-1 disclosed the incident turned hostile and did not support the case of the prosecution. As regards the testimony of PW-1, it indicates that on the date of incident at about 10.00 am the victim was in her house. At that time, the appellant/accused came to their house and asked the victim to come to his house for washing utensils. The mother of the victim, accordingly, asked the victim to go to the house of the appellant/accused for washing utensils. Therefore, the victim went to the house of the appellant/accused. Accordingly, on entering the house of the appellant/accused, she did not find the utensils. The mother of the victim, accordingly, asked the victim to go to the house of the appellant/accused for washing utensils. Therefore, the victim went to the house of the appellant/accused. Accordingly, on entering the house of the appellant/accused, she did not find the utensils. Suddenly, the appellant/accused caught hold of her hand, he pressed her breast, he made her to fall down and lifted up her skirt. The victim gave a jerk to the appellant/accused and fled away from that place. She returned to her house and disclosed the incident to her mother who was present in the house. Thereafter, the victim along with her mother went to the house of the appellant/accused. However, they found the door of house of the appellant/accused was locked. On the next day, the victim along with her mother proceeded to the Police Station and lodged her complaint (Exhibit-27). On careful scrutiny of the testimony of victim, it is noticed that, her testimony is not shattered in the cross examination at all. 6. The testimony of PW-2, who is the mother of victim shows that, at the time of incident, the victim was studying in 7th standard. On the date of incident, at about 10 am, when PW-2 along with the victim was present in the house, the appellant/accused came to their house and asked the victim to come to his house for washing utensils. PW-2 told the victim to go to the house of the appellant/accused for washing utensils. After half an hour, the victim returned to her house and she was weeping. The victim told her mother that the appellant/accused pressed her breast, made her to fall down and lifted her skirt. She further informed to her mother that she gave a jerk to the appellant/accused and rescued herself from the clutches of the appellant/accused. On hearing the incident, PW-2 along with PW-1 went to the house of the appellant/accused. However, they found that the house of the appellant/accused was locked, therefore, they returned back from the house of the appellant/accused. On the next day, they proceeded to the Police Station and the complaint of PW-1 came to be recorded. The testimony of PW-2 was corroborated with the testimony of PW-1 on the material aspect and has not been shattered in the cross examination. At the relevant time, PW-10 was attached to Police Station Kotwali. On the next day, they proceeded to the Police Station and the complaint of PW-1 came to be recorded. The testimony of PW-2 was corroborated with the testimony of PW-1 on the material aspect and has not been shattered in the cross examination. At the relevant time, PW-10 was attached to Police Station Kotwali. He recorded the complaint of the victim as per her version. On the basis of it, he registered the offences under Sections 354 and 376 of the IPC. PW-10 conducted the spot panchanama and recorded the statements of the witnesses and on completion of investigation, he submitted the charge-sheet in the Court of Ld. JMFC. 7. On careful scrutiny of the testimony of the victim and her mother, it is noticed that, their testimony is consistent, cogent and trustworthy. Their testimony is not at all shattered in the cross examination. It appears that the victim and her mother were the only female members in their house and there is no other male member in their house and this must be the reason that they have not lodged the complaint promptly on that day. In any case, the incident being sensitive in nature and under such circumstances the victim and her mother might not have proceeded to the Police Station to lodge the complaint immediately, by putting their reputation at stake and they must have given full thought over it and thereafter they proceeded to lodge the complaint on next day. At the relevant time, the victim was aged about 10 to 12 years old studying in 7th standard. The mother of the victim must have given a thought over it considering her tender age and then lodged the complaint against the appellant/accused. It also appears from the evidence on record that the victim and her mother were labour class people and the appellant/accused came to the house of victim and asked her to come to his house for washing utensils. It appears that the appellant/accused had taken undue advantage of the fact that the victim and her mother are the only female members in their house and they would not raise any hue and cry if he would commit the act of outraging the modesty of the victim. The act of the appellant/accused indicates that he had not crossed the stage of preparation to commit rape, due to the objection raised by the victim. The act of the appellant/accused indicates that he had not crossed the stage of preparation to commit rape, due to the objection raised by the victim. In view thereof, the learned trial Judge was only framed the charge under Section 354 of the IPC. From the evidence on record it can be said that, the appellant/accused had tried to outrage the modesty of the victim by doing the act of pressing her breast and lifting her skirt. 8. It is well settled principle of law that the sole testimony of the victim can be relied upon, if at all it is found to be cogent, convincing and trustworthy. 9. In the instant case, the victim being a child witness, few questions were asked by the learned trial Judge in order to find out whether she understands the sanctity of oath and thereafter the oath was administered to the victim. The testimony of the victim is in consonance with the contents of the First Information Report (Exhibit-7). Significantly, the defence simply suggested that no such incident had occurred. However, there was no suggestion to the victim as to what was the reason for deposing falsely before the Court against the appellant/accused. The testimony of the victim indicates that the appellant/ accused has used criminal force upon the victim and outraged her modesty. The evidence on record clearly shows that on the pretext of washing the used utensils, the appellant/ accused had called the victim at his house. It indicates that the appellant/accused had requisite intention to commit the offence of outraging the modesty of the victim. There is cogent and convincing evidence on record to show that the appellant/accused had committed the offence under Section 354 of the IPC. I do not find any illegality or perversity in the judgment and order passed by the learned trial Judge. 10. It would be advantageous to go through the judgment of the Hon'ble apex Court in case of Premiya @ Prem Prakash v. State of Rajasthan, reported in 2008(12) Scale, 739. The paragraphs 12 and 13 therein are reproduced below: “12. In order to constitute the offence under Section 354 IPC mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. There is no abstract conception of modesty that can apply to all cases. The paragraphs 12 and 13 therein are reproduced below: “12. In order to constitute the offence under Section 354 IPC mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. There is no abstract conception of modesty that can apply to all cases. (See State of Punjab v. Major Singh ( AIR 1967 SC 63 ). A careful approach has to be adopted by the court while dealing with a case alleging outrage of modesty. The essential ingredients of the offence under Section 354 IPC are as under: (i) that the person assaulted must be a woman; (ii) that the accused must have used criminal force on her; and (iii) that the criminal force must have been used on the woman intending thereby to outrage her modesty. 13. Intention is not the sole criterion of the offence punishable under Section 354 IPC, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight.” 11. In my opinion, the learned trial Judge had properly appreciated the facts brought on record by the prosecution. In view of the fact that, the learned trial Judge has rightly appreciated the evidence brought on record and rightly passed the order, consequently, the appeal fails and it is liable to be dismissed. Hence it is dismissed.