BOMBAY HIGH COURT
Dr. E.S. Da Silya, J.
Shivaji Tukaram Kurle - Appellant
versus
State - Respondent
Criminal Appeal No. 13-1993
Decided on 4.3.1994
Counsel for the parties:
For the Appellant: S.D Lathlike.
For the Respondent: G.D. Bhobe, P.P.

Headnote:(i) Indian Penal Code, 1860 - Section 170 - Offence of impersonation - Act of appellant of pretending to be Head Constable and related to prosecutrix so as to enter in the Medical Hospital - He is admittedly a head constable in the Police Department - Name mentioned by him to the gate attendant was a different one - Conviction u/s. 170 not sustainable.

       Held, that the appellant is admittedly a head constable in the Police Department and there is no evidence that Mohammad Mujawar which is the name he purportedly assumed in order to be allowed to enter the Mental Hospital premises is in fact also a member of the police force namely a Head Constable bearing buckle No. 1048. It is thus clear that the appellant has only pretended to be the Head Constable Mohammed Mujawar who is not a Head Constable at all with the sole purpose of concealing his own identity. Being so it cannot be said that while claiming to be the Head Constable Mohammed Mujawar he was pretending to hold any office of public servant knowing that he does not hold such office because he himself was a public servant holding the post he has claimed to hold although the name mentioned by him to the gate attendant was a different one. For the same reason it cannot be said also that the appellant while making such claim falsely personated to be any other person holding such office since we have seen that Mohammed Mujawar was not and has never been a Head Constable or holding any office in the Police Department. Besides there is nothing to suggest that the appellant after claiming such identity or assuming the character of Head Constable Mujawar has done or attempted to do any act under the color of such office. The prosecution case in this respect is that by taking advantage of being a Head Constable the appellant gained entry in the Hospital and thereafter attempted to sexually assault or molest Zamila, an inpatient of the same Hospital. Indeed in order to rape, attempt to rape or outrage the modesty of an inpatient in the Hospital the appellant was not required to be a police officer or Head Constable. He could have done it irrespective of the office or position he was allegedly assuming. Hence section 170 seems to be not at all attached in the special set of circumstances in this case. As rightly contended by Shri Lathlike at the most the facts on record might suggest that the appellant could have been charged for an offence of cheating by personation punishable under Section 416 of I.P.C. But the appellant was not even charged for such offence and therefore his conviction under Sections 170 I.P.C. does not seem to be at all justified. Hence the alleged act of the appellant of pretending to be Head Constable Mohammed Mujawar and related to Zamila for the purpose of taking advantage of this relationship so as to enter in the Mental Hospital is to be held as totally irrelevant for the purpose of incriminting the said appellant for an offence under Section 170 of I.P.C. (para 21)

       (ii) Indian Penal Code, 1860 - Section 376 and 354 r/ws 511 – Attempt to commit rape and act of incident assault or outrage of a woman's modesty. Prosecutrix, an inmate of a mental hospital- Appellant was seen holding the hand of the prosecutrix and pulling her towards the corner of the corridor and embracing her tight at which time her hospital dress was raised above the knee. Appellant keeping the zip of his pant half open so that even his pubic hair could be noticed - No determined effort to forcifully maintain sexual intercourse - Medical evidence did not also point out to any physical effort or violence which the appellant might have made on prosecutrix - Conviction of appellant for offence u/ss. 170,376 r/w.511 quashed. He is liable to be convicted u/s. 354 of the Code.

       Held: Undoubtedly the cumulative effect of the evidence of P.W. 1 Catarina, P.W. 4 Tereza Fernandes, P.W. 6 Shaila Amonkar, P.W. 8 Maria Luisa and even P.W. 10 Dr. Vijayalakshmi Kashi clearly point out to the fact of the appellant having been found unauthorizedly inside the female ward of the Mental Hospital and seen holding Zamila by her hand and also embracing her at which time the uniform or frock that she was wearing was also raised above her knee. There is also same sort of evidence suggesting that an that occasions the zip of his pant might have been half open. The appellant himself has admitted his presence in the hospital although alleging that he had gone there to meet the woman Cook of the hospital Jizabai Satardekar on account of some money matters which he wanted to get sorted not with her in connection with a loan given by him to her son. It is further the case of the appellant that on that occasion he met Zamila in the corridor of the hospital near the kitchen door and that Zamila started embracing him the reason why he immediately shouted for help. Admittedly no evidence was brought an record by the appellant to substantiate this last contention and instead the material available is consistently pointing out to the contrary, namely, to the fact of the appellant having unduly gained entry in the compound of the hospital by pretending to be the brother of Zamila and having thereafter accosted her inside the hospital and taken her along with him towards the corridor in the direction of the Kitchen which was then locked by holding her hand and also embracing Zamila obviously without her valid consent which .otherwise she could not have given to him on account of unsoundness of her mind. Therefore, I have no hesitation in holding that this act by itself satisfies all the ingredients of the offence of using criminal force to assault a woman with the intention to outrage her modesty, which is qualified in terms of Articles 354 of the I.P.C. (para 25)

       Result: Appeal partly allowed.