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IN THE HIGH COURT OF BOMBAY AT GOA.

Criminal Revision Application No.61/2014

MR.FRANCIS D'SOUZA,

son of Macario Alexander,

major of age, married,

r/o Jimmi Doggi's Hut,

Gaunsawado, Siolim,

Bardez, Goa.

Petitioner

Versus

THE STATE OF GOA

Through Police Inspector,

Calangute Police,

Calangute, Goa.

Respondent

…

Shri Ryan Da Piedade Menezes, Advocate for the

petitioner.

Shri S.R.Rivankar, Public Prosecutor for the respondent.

...

CORAM : PRITHVIRAJ K. CHAVAN, J.

RESERVED ON :18/09/2017.

PRONOUNCED ON :26/09/2017.

JUDGMENT :

1.

By this Criminal Revision Application, the

petitioner challenges his conviction under Section 354 of

the Indian Penal Code, by the Judicial Magistrate First

Class, Mapusa, in Criminal Case No.215/S/2011-C by

which, instead of sentencing, the petitioner was released

after due admonition under Section 3 of the Probation of

Offenders Act, inter alia directing him to pay compensation

of Rs.1000/- under Section 5 of the said Act to the

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complainant. An appeal bearing No.86/2013 preferred by

the petitioner also came to be dismissed by the learned

Additional Sessions Judge (FTC) on 19.4.2014.

2.

A few facts can be summarised thus:-

Prosecutrix was aged about 55 years at the

time of incident. She alleged that on 27.10.2010 at about

5.30 p.m., she noticed the petitioner arguing and hitting a

Worker namely Krishna - PW 5 and that her guest PW 4 -

Barbara Hill, a British National, was about to intervene

when the petitioner also tried to hit Barbara, at that time

the prosecutrix intervened, however, the petitioner during

that incident touched her left breast. The prosecutrix

pushed him aside. She, therefore, lodged a report with

Calangute Police Station on the same day by stating that

the petitioner had outraged her modesty. Undisputedly,

the petitioner and the prosecutrix are neighbours, who

are on cross-terms due to some other reasons. It is also

not in dispute that the petitioner is a Senior Citizen

residing in Villa No.5, Sun Park Resort and the prosecutrix

residing in Villa no.4, Sun Park Resort, Calangute. After

charge-sheeting him, the learned Judicial Magistrate First

Class having gone through the evidence of seven

prosecution witnesses, by the impugned judgment

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convicted the petitioner, but, instead, released him on

probation.

3.

Both the Courts below conclusively held that

the petitioner had outraged modesty of the prosecutrix in

the light of the fact that there is acceptable evidence and

there was previous enmity between them. The Courts

below relied upon the testimonies of PW 4 – Barbara, PW 5

- Krishna, which found corroborated by the evidence of

PW 6 - Dr. Dilip Kuncolienkar, who had opined about the

injury in the form of a bruise over the left breast of the

prosecutrix.

4.

I have heard Shri Ryan Menezes, learned

counsel appearing for the petitioner.

5.

The main thrust of the learned counsel is that

though the hand of the petitioner touched the left breast

of the prosecutrix yet, he had absolutely no intention nor

knowledge of outraging the modesty of the prosecutrix. It

was during a sudden push when his hand inadvertently

touched that part of the body of the prosecutrix. The

learned counsel took me through the evidence of

prosecution witnesses in order to demonstrate as to how

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there are discrepancies and improvements made by the

witnesses.

6.

Per contra, the learned Public Prosecutor, Shri

Rivankar, has strongly supported the impugned judgments

by contending that it is not an accidental act, but a

deliberate one by which, the petitioner had not simply

touched the left breast of the prosecutrix, but pressed it,

which found full corroboration from the testimony of the

medical expert. In support of his submissions, learned

Public Prosecutor has pressed into service two case laws

namely (i) Kanwarpal S. Gill Vs. State (admn.,

U