Pandurang Sitaram Bhagwat Vs. State of Maharashtra  Insc 775 (17 December 2004)
N. Santosh Hegde & S.B. Sinha [Arising out of SLP (Crl.) No. 2177 of 2004] S.B. SINHA, J :
This appeal is directed against the judgment and order dated 27.01.2004
passed by the High Court of Bombay in Criminal Revision Application No.219 of
1996, whereby and whereunder the revision application filed by the Appellant
herein was dismissed ex parte.
The Appellant herein is a Constable in the State Reserve Police. He was
charged for alleged commission of an offence punishable under Sections 354,
323, 504, 506 read with Section 34 of the Indian Penal Code.
One Dilip Phadtare was a monthly tenant under the Appellant in one of the
rooms in his house situated at Sarpanch Vasti, Dund. It is not in dispute that
quarrels used to ensue between other tenants on the one hand and the said Dilip
Phadtare and his wife on the other. It is also not in dispute that the
Appellant had asked Dilip to vacate the tenanted premises. He was also said to
have in search of other premises.
His wife Alka Dilip Phadtare is the complainant. On 10.04.1993, at about 5.15 p.m., the Appellant is said to have entered into the said tenanted premises, when
Alka (PW-2) was watching a movie in the television with her sons Shivaji and
Amol. He enquired about her husband. Alka (PW-2) told him that he was not at
home. He thereupon allegedly entered into the room, closed the door and
outraged her modesty by embracing her from backside and touched her breasts. At
that time PW-3, Dilip came back and found Alka abusing the Appellant. On his
questioning as to what had happened; he was assaulted by fists and kicks. The
other three accused thereafter also allegedly came there and assaulted both of
them. Dilip allegedly was also assaulted with stones and bricks.
The Appellant and the other three accused persons stood their trial for
commission of offences punishable under Sections 354, 323, 504, 506 read with
Section 34 IPC on the basis of a first information report lodged by PW- 2 in
relation to the aforementioned alleged incident.
The prosecution besides the informant (PW-2) also examined her husband
(PW-3) and son, Shivaji (PW-4).
The Judicial Magistrate, First Class, Daund, by a judgment and order dated 25.05.1995
disbelieved the story as disclosed in the First Information Report as regard
threatening given to her husband, Dilip (PW-3), on the premise that no such
allegation was made in her earlier statement. The court also disbelieved the
allegation that Alka and her husband were abused by the accused persons. It
furthermore negatived the case of the prosecution that the accused persons
voluntarily caused hurt to Alka and her husband.
The accused persons were, therefore, acquitted of the charges for commission
of the offences punishable under Sections 323, 504, 506 read with Section 34 of
the Code. However, the Appellant alone was found guilty of commission of the
offence of outraging modesty of Alka by the learned Magistrate holding :
"As regards the submission of probability of false implicating of the
accused, I find it difficult to digest that a woman will prefer to put her
character at streak only in order to take revenge or in order to implicate the
accused falsely, particularly when her husband serves in police department.
Alka and her husband could have easily made false charge of house trespass,
causing of hurt etc. to lodge prosecution and it was not necessary for them to
put to streak character of Alka by making false accusations of outraging of
modesty by the accused No.1" On the aforementioned finding, the Appellant
was convicted under Section 354 IPC and sentenced to suffer R.I. of three
months and also to pay a fine of Rs.1,000/-. A sum of Rs.500/- was directed to
be paid to the complainant Alka by way of compensation, out of the
aforementioned amount of fine. The Appellant preferred an appeal thereagainst.
By reason of a judgment and order dated 31.08.1996 passed in Criminal Appeal
No.10 of 1995, the Additional Sessions Judge, Baramati, dismissed the said
appeal. The learned Appellate Court noticed the discrepancy in the evidences of
PW-2 and her son Shvaji as regard the manner of occurrence but maintained the
judgment of conviction and sentenced passed by the Trial Judge, stating :
"There was nobody to watch the said incident.
No doubt, the other incident of beating, abusing by appellant and his other
relatives to Alka and her husband took place outside the house but main
incident of outraging modesty of the woman having taken place in the drawing
hall itself, there was no person, who could see the incident and therefore,
non-examination of independent witness from the neighborhood of Alka and her
husband, cannot be said to be a minus point for the prosecution. A minor
discrepancy has been occurred in the evidence of mother and son. Shivaji
testified that when mother was going towards kitchen and was in standing
position, her breasts were caught by the accused, coming behind her, whereas
Alka stated that her breast were caught, when she was watching T.V. However,
this discrepancy is very minor in nature, if a woman is assaulted in this
fashion. The very next moment, she would stand up and would not continue to sit
in the same position before she was criminally assaulted. So, if natural one and
it cannot shake credibility of either of the witnesses to the occurrence."
A Revision Application filed by the Appellant was dismissed by the High Court
in terms of the impugned judgment holding that both the courts below have
appreciated the evidence on record and on appreciation found the accused guilty
and there was no error of law committed by any of the Court.
It is not in dispute that the High Court passed the said judgment in absence
of the counsel for the Appellant.
Mr Jadhav, the learned counsel appearing on behalf of the Appellant, would
submit that the High Court committed a manifest error in passing the impugned
judgment, insofar as it failed to consider the merit of the matter.
Had the merit of the matter been gone into by the High Court, the learned
counsel would contend, the Appellant could have shown that he had been falsely
implicated owing to dispute between him as the landlord and Dilip as the
The learned counsel appearing on behalf of the Respondent, however,
supported the judgment of the courts below.
Keeping in view the nature of the case, we are of the opinion that the
matter should be finally disposed of by this Court upon consideration of the
materials on record.
The strained relationship between the parties is not in dispute. If the
contention of the first informant and her husband to the effect that they had
already taken a decision to shift from the said premises is believed, there
does not appear to be a plausible reason as to why the Appellant and three
other accused would trespass into the house and assault them. Some photographs
showing the injuries of PW-2 and PW-3 were produced before the Court, but no
reliance thereupon was placed by the learned Trial Judge.
The Trial Judge, as noticed hereinbefore, disbelieved the prosecution case
as regard: (i) threatening of the first informant and her husband by the
accused persons, (ii) hurling abuses to them, and (iii) assaulting them by
bricks and stones. No independent witness has been examined and the witnesses
of the Punchnama were also said to have been declared hostile.
The approach of the learned Trial Judge as noticed supra that ordinarily a
lady would not "put her character at stake" may not be wrong but
cannot be applied universally. Each case has to be determined on the touchstone
of the factual matrix thereof. The law reports are replete with decisions where
charges under Sections 376 and 354 of IPC have been found to have been falsely
In this case, allegation of house trespass was made but for reasons best
known to the investigating agency no specific charge in relation thereto was
Charges for causing hurt, along with other charges as noticed hereinbefore
were specifically disbelieved.
The charges of making false allegations by Alka at the instance of her
husband, who is working in the police department cannot be totally brushed
aside. No case was also made out that the incident of threatening, abusing or
beating took place outside the house of the Appellant.
We are not oblivious that the doctrine 'falsus in uno, falsus in omnibus' is
not applicable in India but the evidence led by the parties must be appreciated
keeping in view the entirety of the situation. The Trial Judge, as noticed
hereinbefore, came to the conclusion that most of the statements made by PW-2
and PW-3 were incorrect and no reliance could be placed thereon. The statements
of the said witnesses with regard to commission of an offence by the Appellant
under Section 354 IPC should have been considered keeping in view the extent of
falsity in their statements. PW-2 and PW-3 not only failed to substantiate the
allegations as regard commission of offences under Sections 323, 504, 506 read
with Section 34 IPC but also implicated the three persons falsely. The
statements of the said witnesses should have been accepted with a pinch of salt
and keeping in view the admitted animosity between the parties. The background
of the case vis-`-vis continuous animosity between the complainant and her
husband, on the one hand, as also and the Appellant and his other tenants could
not have been lost sight of by the learned Trial Judge.
The exact place of occurrence and the manner in which the purported offence
of outraging the modesty was committed by the Appellant, furthermore,
materially differ. Whereas PW-2 asserted that the Appellant came inside the
house and embraced her from the back, when she was watching T.V. sitting; PW-4
stated that the incident took place when she was proceeding towards the
kitchen. The observations made by the learned appellate court is based on
surmises and conjectures. The said discrepancy even if ordinarily could not
have been the basis of passing a judgment of acquittal, but in this case, as
noticed hereinbefore, the conduct of both PW-2 and PW-3 being suspect, it would
not be safe to rely on a part of their statements as prosecution witnesses.
The High Court, in our considered opinion, should not have refused to
exercise its revisional jurisdiction on the ground that no question of law had
arisen therein inasmuch as in terms of Section 397 of the Code of Criminal
Procedure, the correctness, legality or propriety of any finding, sentence or
order may fall for consideration of the Revisional Court and in particular
having regard to the fact that the prosecution case should have been tested
from the angle that the Trial Judge had acquitted all the three accused persons
who are said to have shared a common intention with the Appellant not only in
relation to the offences under Sections 323, 504 and 506 of the Indian Penal Code
but also in relation to the offence committed by the Appellant under Section
We, therefore, are of the opinion that having regard to the totality of the
fact and circumstances of the case, the Appellant is entitled to be given the
benefit of doubt.
For the reasons aforementioned, this Appeal is allowed, the impugned
judgment is set aside and the Appellant is discharged from the bail bond.