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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
ABHAY S. WAGHWASE, J.
Walmik Dattu Lembhe - Appellant
Versus
The State of Maharashtra - Respondent
Criminal Appeal No. 49 of 2005
Decided on : 01-10-2024
For the Appellant :Mr. P.F. Patni, Advocate
For the Respondent: Mr. D.R. Korade, Adv
The court upheld the conviction for outraging modesty and using caste-based abuse, emphasizing the credibility of the victim's testimony and corroborative evidence.
Headnote:(A) Indian Penal Code - Sections 354, 509, and 323 - Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(1)(xi) - Conviction for outraging modesty and using caste-based abuse - Convict challenged the conviction on grounds of false implication and inconsistencies in victim's testimony - The court found the victim's testimony credible and corroborated by independent witnesses, establishing the occurrence of the crime. (Paras 1, 12, 14, 18)
(B) Evidence - Credibility of witness - The court emphasized that the testimony of the victim remained unshaken despite cross-examination, and corroborative evidence from neighbors supported her account. (Paras 12, 14)
(C) Appeal - Standard of review - The appellate court found no perversity or illegality in the trial court's findings and upheld the conviction. (Paras 18)
Facts of the case:
The convict was accused of assaulting the victim in her field, where he dragged her, fondled her, and used caste-based abuses while fleeing. The incident was reported promptly, and the convict was charged and convicted.
Findings of Court:
The court upheld the conviction, finding sufficient evidence to support the charges under IPC and SC & ST Act.
Issues: The main issues included the credibility of the victim's testimony and whether the prosecution established the charges beyond reasonable doubt.
Ratio Decidendi: The court ruled that the victim's consistent testimony, supported by independent witnesses, was sufficient to uphold the conviction, and the evidence met the necessary legal standards for the charges.
Result: The criminal appeal stands dismissed.
JUDGMENT :
1. Convict Walmik Dattu Lembhe is assailing judgment and order of conviction dated 10.01.2005 rendered by learned IInd Ad-hod Additional Sessions Judge, Aurangabad recording his guilt in Sessions Case No.141 of 2004 for offence punishable under sections 354, 509 and 323 of Indian Penal Code (for short “IPC”) and section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, “SC & ST Act”).
FACTUAL MATRIX
2. On 07.12.2003, victim informant PW1 Namita was plucking legume in their field in the earlier hours of the morning. Appellant, who had land in the neighbourhood, initially, started whistling and subsequently he entered her field, showed his wallet with money to the victim and when she was about to leave, he reached her, dragged her in the cotton crop, after scuffling made her pull down and fondled her breast. She raised alarm inviting attention of her husband and brother-in-law. They rushed towards her. Accused fled and while running he used caste abuses. Then, police was approached and occurrence was reported. On the basis of which, Phulambri police station registered crime.
After investigation, accused was charge-sheeted and tried before learned IInd Ad-hoc Additional Sessions Judge, Aurangabad vide Sessions Case No.141 of 2004 for offence punishable under sections 354, 509 and 323 IPC and under the provisions of SC & ST Act.
By judgment and order dated 10.01.2005, case of prosecution was accepted recording guilt for above offences, which is precisely challenged here in instant appeal.
EVIDENCE BEFORE TRIAL COURT
3. The prosecution has examined following 10 witnesses in support of its case. Their role and status is as under :
PW1 Namita victim - informant lodged report regarding accused outraging her modesty.
PW2 Tarabai neighbour stated that, while she was plucking cotton in her field, she heard cries. She saw appellant running after scuffling with informant.
PW3 Kailas husband stated that, incident took place on 07.12.2003. He saw accused sitting on the chest of his wife and she shouting loudly. Seeing him accused ran and was chased, but he escaped. His wife narrated the acts of accused. They approached police.
PW4 Ashok is pancha to spot panchanama Exh.12.
PW5 Sukhdeo is brother of PW3.
PW6 Uttam is the Investigating Officer.
PW7 Mukteshwar is the Head Master.
PW8 Dy.S.P. Chawariya is the then Investigating Officer PW9 P.S.I. Bagga, P.S.O., who drew panchanama and procured caste certificate.
PW10 S.D.O. Datkar, authority, who issued caste certificate.
SUBMISSIONS On behalf of Appellant :-
4. Pointing to above evidence, learned counsel Shri Patni would submit that, prosecution has miserably failed to establish the charges. According to him, it is false implication due to previous disputes and occurrence of beating dated 30.04.2004. He submitted that, informant victim is changing versions. According to him, at one time she claims incidence to be of 10:00 a.m. i.e. in the FIR, but in deposition, she gave time of occurrence as 1:30 p.m. Therefore, according to him, informant herself is giving contrary versions. He pointed out that, there is no independent witness. That, FIR is silent about any threats, however, there is testimony to that extent in witness box. Therefore, according to him, it amounts to improvisation. According to him, there is material omission regarding utterance and humiliation on caste abuse. He invited attention of the court to cross in paragraph no. 8 and pointed out that, police machinery was pressurized to register offence under SC & ST Act. That, even FIR is silent about caste abuse. Therefore, it is his submission that informant’s testimony is not credible. He also pointed out that, in spot panchanama scene of occurrence is shown to be wet place. If version of informant is correct, then there would have been wet mud on the person and clothes of victim, but the same are not seized. That, learned trial court has also noted such infirmity.
5. He took this c
