I have carefully examined the evidence of P.W.1, P.W.2 and
P.W.5. Even if it is assumed for the sake of argument that the failure on the
part of the Investigating Officer to seize the torn blouse shall not necessarily
affect the case of the respondent adversely, the respondent were under
obligation to establish by cogent evidence that the blouse of P.W.5 was torn
during the course of the alleged incident of assault or use of criminal force by
the appellant against P.W.5. Intention or knowledge is integral part of the
offence punishable under Section 354 of the Indian Penal Code. The proof of
assault or criminal force by itself will not prove the offence punishable under
Section 354 of the Indian Penal Code unless there was proof of intention or
knowledge. Therefore, before I go to the intention part of the offence, let me
examine whether the factual position with regard to the incident in question
has been established by the respondent. One thing which needs to be
mentioned here is that P.W.1 and P.W.2 were not far away from P.W.5. They
had just halted to ease themselves and P.W.5 had proceeded further. It is also
admitted position that P.W.1 and P.W2 had reached the spot and they had
seen P.W.5 from close quarters. The torn blouse should have been noticed by
P.W.1 and P.W.2. P.W.5 has categorically stated that her blouse was torn and
the buttons of her blouse were dislocated. It is thus obvious that the blouse
could not be in a normal condition. If it was not shown to P.W.1 and P.W.2 by
P.W.5 voluntarily, it could definitely be noticed by P.W.1 and P.W.2. It is noted
that P.W.1 and P.W.2 are absolutely silent on this aspect of the case. None of
them has stated that the blouse of P.W.5 was found torn. This creates a
reasonable doubt about correctness of evidence of P.W.5.
8. The conduct of P.W.5 is also necessary to be taken into
consideration. In normal course P.W.5 would have shown the torn blouse to
P.W.1 and P.W.2. Let us assume that the body of P.W.5 was exposed and
therefore, she had not shown torn blouse to P.W.1 and P.W.2. At least she
could have told them that her blouse was torn and that the appellant had
pressed her breast. One may go one step a head by assuming that she could
not have told P.W.1 and P.W.2 that the appellant had pressed her breas. At
least she could have told them that her blouse was torn. This part is missing
from the evidence of P.W.1, P.W.2 and P.W.5. This creates a doubt about
correctness of evidence of P.W.5.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.412 OF 1998
Sopanrao s/o Kisanrao Jadhao,
VERSUS
The State of Maharashtra,
CORAM : M.L. TAHALIYANI, J.
DATED : 10 th JULY, 2014 .
Citation;2014 ALLMR(CRI)3942 Bom
Read original judgment ;click here
1. The appellant has been convicted by the learned Special Judge
under the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, Washim for the offences punishable under Section 354
of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and
the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. The appellant was resident of Dhawanda within the jurisdiction
of Manora Police Station, District Washim. The victim lady Radhabai was
resident of village Sawali. On the date of incident she had gone to Digras.
She had returned from Digras by a Bus and got down at the main road on
the junction from where a road leads to her village Sawali. The junction
from where the road leads to village Sawali is known as 'Sawali Fata' and the
same will be referred to as 'Sawali Fata' hereinafter. After getting down at
Sawali Fata, the complainant was proceeding to her village. She was
accompanied by P.W.1Namdeo
Jadhav and P.W.2Dattaram
Rathod. It is the
case of respondent that P.W.1 and P.W.2 stopped for a while to urinate by the
side of road and the victim Radhabai (P.W.5) proceeded further towards
Sawali. While she was proceeding to Sawali, the appellant had been on the
said road on his motorcycle. He stopped his motorcycle and engaged P.W.5 in
a talk. The appellant was working as Headmaster in a school and P.W.5 had
visited his school for admission of her child. The appellant started talking
with P.W.5 on the said subject. P.W.5 informed the appellant that she had
already admitted her daughter in other school. The appellant at this point of
time caught hold of P.W.5, pressed her breast and torn her blouse. P.W.5 cried
for help. P.W.1 and P.W.2 reached there and the appellant escaped on the
motorcycle. Matter was reported to police. The First Information Report
was registered for the above stated offences. P.W.5 claims to be belonging to
Chambhar Caste, which is a Scheduled Caste. After completion of
investigation, chargesheet
was filed against the appellant.
3. The appellant was tried by the learned Special Judge and was
convicted as stated hereinabove. The conviction is based on the evidence of
six witnesses examined by the prosecution, of which P.W.1, P.W.2 and P.W.5
are the material witnesses whose evidence needs to be appreciated to decide
the present appeal.
4. P.W.5 has more or less given evidence in accordance with her
First Information Report. She has stated in her evidence that P.W.1 and P.W.2
were left behind and the appellant taking advantage of loneliness of P.W.5
had used force against her to outrage her modesty. P.W.1 and P.W.2 were not
present on the spot at the time of incident. However, both of them claimed
to have seen the appellant while he had caught hold of P.W.5.
5. The learned Counsel for the appellant has submitted that the
evidence of P.W.1 and P.W.2 did not support the evidence given by P.W.5.
P.W.5 has not stated that the appellant continued to catch hold of P.W.5 till
arrival of P.W.1 and P.W.2. She has stated that the appellant left the spot
immediately after he had seen P.W.1 and P.W.2. The learned Counsel has
submitted that this is material contradiction in the evidence of P.W.1 and
P.W.2 on the one hand and P.W.5 on the other hand.
6. It is brought to my notice that blouse of P.W.5 was not seized by
the police. The case of the respondent is that the appellant had not only
pressed breast of P.W.5 but had torn her blouse. In the circumstances, it was
contended before me that the blouse should have been seized by the police
to establish that the blouse was torn during the course of alleged incident.
7. I have carefully examined the evidence of P.W.1, P.W.2 and
P.W.5. Even if it is assumed for the sake of argument that the failure on the
part of the Investigating Officer to seize the torn blouse shall not necessarily
affect the case of the respondent adversely, the respondent were under
obligation to establish by cogent evidence that the blouse of P.W.5 was torn
during the course of the alleged incident of assault or use of criminal force by
the appellant against P.W.5. Intention or knowledge is integral part of the
offence punishable under Section 354 of the Indian Penal Code. The proof of
assault or criminal force by itself will not prove the offence punishable under
Section 354 of the Indian Penal Code unless there was proof of intention or
knowledge. Therefore, before I go to the intention part of the offence, let me
examine whether the factual position with regard to the incident in question
has been established by the respondent. One thing which needs to be
mentioned here is that P.W.1 and P.W.2 were not far away from P.W.5. They
had just halted to ease themselves and P.W.5 had proceeded further. It is also
admitted position that P.W.1 and P.W2 had reached the spot and they had
seen P.W.5 from close quarters. The torn blouse should have been noticed by
P.W.1 and P.W.2. P.W.5 has categorically stated that her blouse was torn and
the buttons of her blouse were dislocated. It is thus obvious that the blouse
could not be in a normal condition. If it was not shown to P.W.1 and P.W.2 by
P.W.5 voluntarily, it could definitely be noticed by P.W.1 and P.W.2. It is noted
that P.W.1 and P.W.2 are absolutely silent on this aspect of the case. None of
them has stated that the blouse of P.W.5 was found torn. This creates a
reasonable doubt about correctness of evidence of P.W.5.
8. The conduct of P.W.5 is also necessary to be taken into
consideration. In normal course P.W.5 would have shown the torn blouse to
P.W.1 and P.W.2. Let us assume that the body of P.W.5 was exposed and
therefore, she had not shown torn blouse to P.W.1 and P.W.2. At least she
could have told them that her blouse was torn and that the appellant had
pressed her breast. One may go one step a head by assuming that she could
not have told P.W.1 and P.W.2 that the appellant had pressed her breas. At
least she could have told them that her blouse was torn. This part is missing
from the evidence of P.W.1, P.W.2 and P.W.5. This creates a doubt about
correctness of evidence of P.W.5.
9. Since story of P.W.5 with regard to use of criminal force or
assault is disbelieved, it is not necessary to examine the intention part of the
offence. It, therefore, follows that the offence under Section 354 of the
Indian Penal Code could not be established. It need not be stated here that
in the absence of conviction under Section 354 of the Indian Penal Code in
the present case, it was not possible to convict the appellant for the offence
punishable under Section 3(1)(xi) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989. For proof of offence
under Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 also the proof of assault or use of
criminal force is necessary. The said section runs as under :“
3(1)(xi). Punishments for offence of atrocities (
1)
Whoever, not being a member of a Scheduled Caste or a
Scheduled Tribe, (
xi) assaults or uses force to any woman belonging
to a Scheduled Caste or a Scheduled Tribe with intention to
dishonour or outrage her modesty;
shall
be punishable with imprisonment for a term
which shall not be less than six months but which may extend to
five years and with fine.”
10. It is thus obvious that in the absence of proof of use of force or
assault the offence under Section 3(1)(xi) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 could not be proved. I
am of the view that the judgment of the learned trial Court is based on
unreliable evidence of P.W.5. The judgment needs to be set aside. Hence, I
pass the following order.
The judgment and order passed by the learned Additional
Sessions Judge, Washim, dated 9th October, 1998, in Atrocity Case No.
111/1996 is set aside.
The appellant is acquitted of the offences punishable under
Sections 354 of the Indian Penal Code and 3(1)(xi) of the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Fine amount, if any, paid by the appellant shall be refunded to
the appellant.
Appeal stands disposed of accordingly.
JUDGE
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