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BOMBAY HIGH COURT
Rohit B. Deo, J.
Naushad —Appellant
versus
The State of Maharashtra —Respondent
Criminal Appeal No.32 of 2006
Decided on 13.10.2017
Counsel for the Parties:
For the Appellant:Shri Abdul Subhan, Advocate holding for Shri F.T. Mirza, Advocate
For the Respondent: Shri A.V. Palshikar, APP
IMPORTANT POINT
Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.
Headnote:i. Indian Penal Code, 1860—Section 354 and 506—Conviction on sole testimony of victim-complainant—PW2 accompanied PW1 at the time of incident did not support the prosecution and was declared hostile—PW1 and PW2 had been to market and while returning, accused accosted complaint from behind caught her hand, pressed her mouth and breasts and threatened to bill her if she raised alarm—Appeal against conviction—Evidence of victim withstood test of cross-examination and her testimony inspired confidence—Conviction was liable to be upheld.
Held: The case of the prosecution hinges on the testimony of the complainant who is examined as P.W.1 since the only other witness to the incident did not support the prosecution. The testimony of the complainant is broadly consistent with the First Information Report Exh.19. P.W.1 has deposed that on the date of the incident, which was the market day, P.W.1 and Yasmin had been to the market. On the way back, near the lane of Laxmi Dal Mill, the accused accosted her from behind, caught her hand, pressed her mouth and breasts. The accused threatened to kill P.W.1 if she raised an alarm, is the deposition. P.W.1 has deposed that P.W.2 Yasmin ran away due to fear. She started weeping and shouting. One Balu Jare and the parents of P.W.1 came to the spot to whom P.W.1 narrated the incident and the report was lodged at 09:15 p.m. on 05.09.2001.
In the cross-examination P.W.1 has denied the suggestion that due to darkness, she has not correctly identified the accused. She has also denied the suggestion that due to dispute with the accused, she has falsely implicate the accused.
The evidence of the complainant P.W.1 has withstood the test of the cross-examination. I find her testimony implicitly reliable and confidence inspiring. A vague suggestion is given to P.W.1 that due to a dispute she is falsely implicating the accused. However, nothing is brought on record by the accused to suggest the existence of inimical terms between P.W.1 and the accused. It is true that P.W.2 admits that her mother resides near the house of the accused and the inter se relations are not good. However, the existence of bad blood is a double edged sword and may as well the motive for the accused to outrage the modesty of P.W.1 to spite her mother. I am not persuaded to agree with the learned counsel for the accused that the admission that the terms of the mother of P.W.1 and the accused are not good necessarily renders the evidence of P.W.1 suspect.
The prosecution has proved the offence punishable under section 354 of IPC beyond reasonable doubt. (Paras 5 to 8)
ii. Indian Penal Code, 1860—Section 354—Offence of outraging modesty of woman—Sentence—Accused caught hold of victim from behind and pressed her mouth and breasts—Trial Court awarded six months imprisonment—Appeal—Plea for leniency on ground that accused was only 20 years old when incident occurred in 2002—Whether any leniency in sentence deserved to be shown? No. (Para 11 and 12)
Result: Appeal dismissed.
JUDGMENT
Rohit B. Deo, J.—The appellant is aggrieved by the judgment and order dated 28.11.2005 in Special Case 2/2002 delivered by the 2nd Adhoc Additional Sessions Judge, Amravati, by and under which, the appellant (hereinafter referred to as “the accused”) is convicted of offence punishable under section 354 of IPC and is sentenced to suffer rigorous imprisonment for six months and to payment of fine of Rs.500/-. The accused is also convicted of offence punishable under section 506 of IPC and is sentenced to suffer rigorous imprisonment for three months and to payment of fine of Rs.200/-. The accused is however, acquitted of offence punishable under section 3(i)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.
2. Shri Abdul Subhan, the learned counsel for the accused submits that the entire trial is vitiated due to noncompliance with Rule 7 of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred to as “the rules”). Shri Subhan submits that the investigation is not conducted by a Police Officer of the rank of Deputy Superintendent of Police (Dy. S.P. for short). Shri Subhan relies on a Division Bench judgment of Andhra Pradesh High Court in Viswanadhula Chittibabu vs. State of Andhra Pradesh 2002 Law Suit (AP) 1344.
3. In rebuttal, Shri Palshikar, the learned Additional Public Prosecutor would submit that the grievance of the accused is absolutely misconceived, since the investigation was conducted by an Officer of the rank of Sub-Divisional Police Officer who is not below the rank of Dy. S.P. The learned A.P.P. would submit that no suggestion is given to P.W.3 Hansraj Meshram who deposed that the offence was investigated by S.D.P.O. Meshram, that the said Officer is of the rank lower than Dy. S.P. The learned A.P.P. would submits that the accused is acquitted of offence punishable under section 3(i)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and the Division Bench judgment of the Andhra Pradesh High Court is distinguishable since in that case the accused was convicted of offence punishable under section 3(i)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.
4. Shri Subhan, the learned counsel for the accused would urge that the conviction recorded by the learned Special Judge is against the weight of the evidence on record. P.W.2 Yasmin who was accompanying the complainant P.W.1 when the accused allegedly outraged the modesty of P.W.1, has not supported the prosecution, is the submission. Shri Subhan invites my attention to certain omissions in the evidence of P.W.1. However, the omissions brought to my attention are not significant and material and pertain to colateral and peripheral facts and circumstances. The credibility of the testimony of P.W.1 is not dented by the omissions to which my attention is invited by the learned counsel for the accused.
5. The case of the prosecution hinges on the testimony of the complainant who is examined as P.W.1 since the only other witness to the incident did not support the prosecution. The testimony of the complainant is broadly consistent with the First Information Report Exh.19. P.W.1 has deposed that on the date of the incident, which was the market day, P.W.1 and Yasmin had been to the market. On the way back, near the lane of Laxmi Dal Mill, the accused accosted her from behind, caught her hand, pressed her mouth and breasts. The accused threatened to kill P.W.1 if she raised an alarm, is the deposition. P.W.1 has deposed that P.W.2 Yasmin ran away due to fear. She started weeping and shouting. One Balu Jare and the parents of P.W.1 came to the spot to whom P.W.1 narrated the incident and the report was lodged at 09:15 p.m. on 05.09.2001.
6. In the cross-examination P.W.1 has denied the suggestion that due to darkness, she has not correctly identified the accused. She has also denied the suggestion that due to dispute with the accused, she has falsely
