SUPREME COURT OF INDIA
Pandurang Sitaram Bhagwat
Vs.
State of Maharashtra
Crl.A.No.1513 of 2004
(N. Santosh Hedge and S.B.Sinha JJ.)
17.12.2004
S. B. Sinha, J.
1. Leave granted.
2. This appeal is directed against the judgment and order dated 27.01.2004
passed by the High Court of Bombay in Criminal Revision Application No. 219 of
1996, whereby and where under the revision application filed by the Appellant
herein was dismissed ex parte.
4. The Appellant herein is a Constable in the State Reserve Police. He was
charged for alleged commission of an offence punishable under Sections 354,
323, 504, 506 read with Section 34 of the Indian Penal Code.
5. One Dilip Phadtare was a monthly tenant under the Appellant in one of the
rooms in his house situated at Sarpanch Vasti, Dund. It is not in dispute that
quarrels used to ensue between other tenants on the one hand and the said Dilip
Phadtare and his wife on the other. It is also not in dispute that the
Appellant had asked Dilip to vacate the tenanted premises. He was also said to
have in search of other premises.
6. His wife Alka Dilip Phadtare is the complainant. On 10.04.1993, at about
5.15 p.m., the Appellant is said to have entered into the said tenanted
premises, when Alka (PW-2) was watching a movie in the television with her sons
Shivaji and Amol. He enquired about her husband. Alka (PW-2) told him that he
was not at home. He thereupon allegedly entered into the room, closed the door
and outraged her modesty by embracing her from backside and touched her
breasts. At that time PW-3, Dilip came back and found Alka abusing the
Appellant. On his questioning as to what had happened; he was assaulted by
fists and kicks. The other three accused thereafter also allegedly came there
and assaulted both of them. Dilip allegedly was also assaulted with stones and
bricks.
7. The Appellant and the other three accused persons stood their trial for
commission of offences punishable under Sections 354, 323, 504, 506 read with
Section 34 IPC on the basis of a first information report lodged by PW- 2 in
relation to the aforementioned alleged incident.
8. The prosecution besides the informant (PW-2) also examined her husband
(PW-3) and son, Shivaji (PW-4).
9. The Judicial Magistrate, First Class, Daund, by a judgment and order dated
25.05.1995 disbelieved the story as disclosed in the First Information Report
as regard threatening given to her husband, Dilip (PW-3), on the premise that
no such allegation was made in her earlier statement. The court also
disbelieved the allegation that Alka and her husband were abused by the accused
persons. It furthermore negatived the case of the prosecution that the accused
persons voluntarily caused hurt to Alka and her husband.
10. The accused persons were, therefore, acquitted of the charges for
commission of the offences punishable under Sections 323, 504, 506 read with
Section 34 of the Code. However, the Appellant alone was found guilty of
commission of the offence of outraging modesty of Alka by the learned
Magistrate holding:
"As regards the submission of probability of false implicating of the
accused, I find it difficult to digest that a woman will prefer to put her
character at streak only in order to take revenge or in order to implicate the
accused falsely, particularly when her husband serves in police department.
Alka and her husband could have easily made false charge of house trespass,
causing of hurt etc. to lodge prosecution and it was not necessary for them to
put to streak character of Alka by making false accusations of outraging of
modesty by the accused No.1"
11. On the aforementioned finding, the Appellant was convicted under Section 354 IPC and sentenced to suffer R.I. of three months and also to pay a fine of Rs. 1, 000/-. A sum of Rs. 500/- was directed to be paid to the complainant Alka by way of compensation, out of the aforementioned amount of fine. The Appellant preferred an appeal thereagainst. By reason of a judgment and order dated 31.08.1996 passed in Criminal Appeal No. 10 of 1995, the Additional Sessions Judge, Baramati, dismissed the said appeal. The learned Appellate Court noticed the discrepancy in the evidences of PW-2 and her son Shvaji as regard the manner of occurrence but maintained the judgment of conviction and sentenced passed by the Trial Judge, stating :
"There was nobody to watch the said incident. No doubt, the other incident
of beating, abusing by appellant and his other relatives to Alka and her
husband took place outside the house but main incident of outraging modesty of
the woman having taken place in the drawing hall itself, there was no person,
who could see the incident and therefore, non-examination of independent
witness from the neighborhood of Alka and her husband, cannot be said to be a
minus point for the prosecution. A minor discrepancy has been occurred in the
evidence of mother and son. Shivaji testified that when mother was going
towards kitchen and was in standing position, her breasts were caught by the
accused, coming behind her, whereas Alka stated that her breast were caught,
when she was watching T.V. However, this discrepancy is very minor in nature,
if a woman is assaulted in this fashion.
The very next moment, she would stand up and would not continue to sit in the
same position before she was criminally assaulted. So, if natural one and it
cannot shake credibility of either of the witnesses to the occurrence."
12. A Revision Application filed by the Appellant was dismissed by the High
Court in terms of the impugned judgment holding that both the courts below have
appreciated the evidence on record and on appreciation found the accused guilty
and there was no error of law committed by any of the Court.
13. It is not in dispute that the High Court passed the said judgment in
absence of the counsel for the Appellant.
14. Mr. Jadhav, the learned counsel appearing on behalf of the Appellant, would
submit that the High Court committed a manifest error in passing the impugned
judgment, insofar as it failed to consider the merit of the matter. Had the
merit of the matter been gone into by the High Court, the learned counsel would
contend, the Appellant could have shown that he had been falsely implicated
owing to dispute between him as the landlord and Dilip as the tenant?
15. The learned counsel appearing on behalf of the Respondent, however,
supported the judgment of the courts below.
16. Keeping in view the nature of the case, we are of the opinion that the
matter should be finally disposed of by this Court upon consideration of the
materials on record.
17. The strained relationship between the parties is not in dispute. If the
contention of the first informant and her husband to the effect that they had
already taken a decision to shift from the said premises is believed, there
does not appear to be a plausible reason as to why the Appellant and three
other accused would trespass into the house and assault them. Some photographs
showing the injuries of PW-2 and PW-3 were produced before the Court, but no
reliance thereupon was placed by the learned Trial Judge.
18. The Trial Judge, as noticed hereinbefore, disbelieved the prosecution case
as regard: (i) threatening of the first informant and her husband by the
accused persons, (ii) hurling abuses to them, and (iii) assaulting them by
bricks and stones. No independent witness has been examined and the witnesses
of the Punchnama were also said to have been declared hostile.
19. The approach of the learned Trial Judge as noticed supra that ordinarily a
lady would not "put her character at stake" may not be wrong but
cannot be applied universally. Each case has to be determined on the touchstone
of the factual matrix thereof. The law reports are replete with decisions where
charges under Sections 376 and 354 of IPC have been found to have been falsely
advanced.
20. In this case, allegation of house trespass was made but for reasons best
known to the investigating agency no specific charge in relation thereto was
made. Charges for causing hurt, along with other charges as noticed
hereinbefore were specifically disbelieved.
21. The charges of making false allegations by Alka at the instance of her
husband, who is working in the police department cannot be totally brushed
aside. No case was also made out that the incident of threatening, abusing or
beating took place outside the house of the Appellant.
22. We are not oblivious that the doctrine 'falsus in uno, falsus in omnibus'
is not applicable in India but the evidence led by the parties must be
appreciated keeping in view the entirety of the situation. The Trial Judge, as
noticed hereinbefore, came to the conclusion that most of the statements made
by PW-2 and PW-3 were incorrect and no reliance could be placed thereon. The
statements of the said witnesses with regard to commission of an offence by the
Appellant under Section 354 IPC should have been considered keeping in view the
extent of falsity in their statements. PW-2 and PW-3 not only failed to
substantiate the allegations as regard commission of offences under Sections
323, 504, 506 read with Section 34 IPC but also implicated the three persons
falsely.
23. The statements of the said witnesses should have been accepted with a pinch
of salt and keeping in view the admitted animosity between the parties. The
background of the case vis-'-vis continuous animosity between the complainant
and her husband, on the one hand, as also and the Appellant and his other
tenants could not have been lost sight of by the learned Trial Judge.
24. The exact place of occurrence and the manner in which the purported offence
of outraging the modesty was committed by the Appellant, furthermore,
materially differ. Whereas PW-2 asserted that the Appellant came inside the
house and embraced her from the back, when she was watching T.V. sitting; PW-4
stated that the incident took place when she was proceeding towards the
kitchen. The observations made by the learned appellate court is based on
surmises and conjectures. The said discrepancy even if ordinarily could not
have been the basis of passing a judgment of acquittal, but in this case, as noticed
hereinbefore, the conduct of both PW-2 and PW-3 being suspect, it would not be
safe to rely on a part of their statements as prosecution witnesses.
25. The High Court, in our considered opinion, should not have refused to
exercise its revisional jurisdiction on the ground that no question of law had
arisen therein inasmuch as in terms of Section 397 of the Code of Criminal
Procedure, the correctness, legality or propriety of any finding, sentence or
order may fall for consideration of the Revisional Court and in particular
having regard to the fact that the prosecution case should have been tested
from the angle that the Trial Judge had acquitted all the three accused persons
who are said to have shared a common intention with the Appellant not only in relation
to the offences under Sections 323, 504 and 506 of the Indian Penal Code but
also in relation to the offence committed by the Appellant under Section 354
thereof.
26. We, therefore, are of the opinion that having regard to the totality of the
fact and circumstances of the case, the Appellant is entitled to be given the
benefit of doubt.
27. For the reasons aforementioned, this Appeal is allowed, the impugned
judgment is set aside and the Appellant is discharged from the bail bond.