Mukunda Tatyaba Shinde Vs the State of Maharashtra

MSS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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 CRIMINAL APPEAL NO. 45 OF 1996

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 MUKUNDA TATYABA SHINDE )

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 resident of Malad, Bhaiyya Vasti

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 Taluka Baramati, Dist. Pune ) .. APPELLANT
 (Orig.Accd.No. 1)

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 VERSUS

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 THE STATE OF MAHARASHTRA ) .. RESPONDENT

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 Shri Macchindra Deshmukh h/f Milind Deshmukh for
 appellant

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 Shri Pradeep Hingorani, APP

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CORAM:SMT. RANJANA DESAI, J.

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DATE: AUGUST 22, 2007.

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 ORAL JUDGMENT:

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 . The appellant (original accused) was tried in

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 the Court of Additional Sessions Judge, Baramati in

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 Sessions Case No. 69 of 1991 for offences
 punishable under Sections 376, 323 and 506 of the
 I.P.C.

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 2. At the trial, the case of the prosecution was
 as under:

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 . Pushpa, the prosecutrix is a resident of village
 Malad, Taluka Baramati, District Pune. The
 appellant (hereinafter referred to as "the accused"
 for convenience) resides in the same village.
 Pushpa was residing with her husband Bajirao and
 mother-in-law Kashibai. The accused, the
 prosecutrix, her husband and her mother-in-law
 Kashibai are labourers.

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 . On 4/3/91 at about 9 a.m. Pushpa went to nearby
 canal to wash clothes. While she was returning
 from the canal on the way the accused met her. The
 accused dragged her inside sugarcane crop which was
 standing on the field of Gujar Deosthan. He
 punched her on the face and had forcible sexual
 intercourse with her. Pushpa went home crying and
 narrated the incident to her mother-in-law
 Kashibai. Pushpa and Kashibai reached Baramati
 Police Station which is about two kilometres from
 their house. Pushpa lodged her FIR. Offence being
 C.R. No. 17/91 was registered. Pushpa was sent
 for medical examination. Dr. (Mrs.) Suryawanshi
 examined her. Investigation was set into motion on
 the basis of Pushpa’s FIR. The accused was not
 found in his house from 4/3/91 to 8/3/91. On

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 9/3/91 he was arrested. After completion of the
 investigation the accused came to be charged as
 aforesaid.

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 3. In support of its case the prosecution examined
 eight witnesses. The prosecution case rests
 basically on the evidence of PW 1 Pushpa.
 Prosecution also examined Kashibai, the
 mother-in-law of Pushpa. Particulars of medical
 examination of Pushpa are given by PW 8 Dr. (Mrs.)
 Manik Suryawanshi. Details of investigation are
 given by PW 7, API Somnath Salunkhe. PW 6 Dr.
 Mahadeo Vishwanath Swami has deposed about the
 medical examination of the accused.

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 4. The defence of the accused was one of total
 denial. In his statement recorded under Section
 313 of the Code of Criminal Procedure, the accused
 stated that he used to talk to Pushpa. Everytime
 Pushpa used to tell him that he should leave his
 wife and accompany her. Because he refused to
 leave his wife, Pushpa told him that she would
 settle the score with him and, therefore, she filed
 a false case against him.

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 5. After perusing the evidence on record, the

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 learned Sessions Judge was of the opinion that the
 prosecution has failed to prove that the accused
 had committed rape on Pushpa or that the accused
 voluntarily caused hurt to Pushpa. He, however,
 came to a conclusion that the accused had assaulted
 Pushpa with intent to outrage her modesty. He,
 therefore, acquitted the accused of the offence
 punishable under Sections 376, 323 and 506 of the
 I.P.C. He convicted him under Section 354 of the
 I.P.C. and sentenced him to suffer RI for 18
 months. The said judgment and order is challenged
 in this appeal.

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 6. I have heard Mr. Macchindra Deshmukh, the
 learned advocate for the appellant at great length.
 I have also heard the learned APP. With the
 assistance of the learned counsel, I have gone
 through the record of the case.

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 7. The learned advocate Mr. Deshmukh contended
 that after having held that the prosecution has
 failed to prove that the accused had committed rape
 on Pushpa, it was wrong on the part of the learned
 Judge to convict the accused under Section 354 of
 the I.P.C. The learned advocate contended that the
 learned Judge has rightly disbelieved the

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 prosecution story about rape because the medical
 evidence does not support the same. The learned
 Judge has observed that PW 1 Pushpa has given
 exaggerated account inasmuch as she has stated that
 she had suffered a bleeding injury. This is not
 supported by medical evidence. Pushpa has also
 stated that buttons of her blouse were broken.
 However, the blouse produced before the court had
 no broken buttons. The learned advocate urged
 that, therefore, Pushpa is a totally unreliable
 witness and the learned Judge could not have relied
 partly on her evidence to convict the accused. He
 submitted that presence of the accused at the scene
 of offence is doubtful. The learned advocate
 contended that even if it is assumed that the
 injury caused to Pushpa was at the instance of the
 accused, if the story of rape is disbelieved then
 the learned Judge could not have come to a
 conclusion that the accused tried to outrage the
 modesty of Pushpa. At best the learned Judge could
 have convicted the accused under Section 323 of the

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 I.P.C. Mr. Deshmukh urged that the order of
 conviction and sentencs deserves to be set aside
 and in any case, if this court comes to a
 conclusion that the accused had caused injury on
 the person of Pushpa then he may be convicted under

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 Section 323 of the I.P.C.

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 8. As against this the learned APP submitted that
 the prosecution has made out its case so far as the
 offence under Section 354 is concerned. The
 offence was committed in the morning. The accused
 dragged Pushpa in the sugarcane field and caused
 injury to her. FIR was promptly lodged by Pushpa.
 Pushpa’s evidence is supported by her
 mother-in-law’s evidence. The fact that Pushpa was
 dragged inside the sugercane field speaks volumes.
 Under the circumstances, even if it is held that
 the accused did not commit rape on Pushpa it must
 be held that the accused outraged the modesty of
 Pushpa. The learned APP, therefore, submitted that
 the order of conviction and sentence should not be
 interfered with.

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 9. Undoubtedly the prosecution case rests on the
 evidence of PW 1 Pushpa which is corroborated by
 evidence of her mother-in-law PW 2 Kashibai. The
 panchas have not supported the prosecution case.
 They have turned hostile. Therefore, so far as the
 details of investigation such as preparation of
 panchnamas are concerned, it is only the evidence
 of investigating officer API Salunkhe which can be

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 relied upon.

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 10. While coming to the conclusion that the
 accused has not committed rape on Pushpa, the
 learned Judge has rightly observed that PW 1 Pushpa
 has given exaggerated account. She has stated that
 she had suffered a bleeding injury. However, Dr.
 Suryawanshi has stated that she did not see any
 bleeding injury. While Pushpa has stated that her
 bangles were broken. Dr. Suryawanshi has stated
 that on Pushpa’s wrist she did not notice any
 scratches. The learned Judge has noted that though
 Pushpa has stated that the buttons of her blouse
 were broken they were intact. There is therefore,
 nothing to indicate that the accused attempted to
 outrage the modesty of Pushpa. In my opinion, on
 the basis of the same evidence, therefore, the
 learned Judge also could not have reached the
 conclusion that the accused tried to outrage the
 modesty of Pushpa. Conviction of the accused under
 Section 354 of the I.P.C. must, therefore, be set
 aside.

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 11. It is true that there was injury on the face
 of Pushpa. PW 8 Dr. Suryawanshi, who examined
 Pushpa at 4-45 p.m. on 4/3/91 noticed linear
 abrased wound on Pushpa’s face, oblique in

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 direction. She found superficial skin to be
 reddish in colour. Therefore, it was a fresh
 injury. But on the basis of this injury it cannot
 be stated that the accused tried to outrage
 Pushpa’s modesty. The learned Judge is right when
 he says that PW 1 Pushpa’s evidence cannot be
 totally discarded because it is also to some extent
 supported by evidence of PW 2 Kashibai. Morever
 the incident has taken place at 9 a.m. in the
 morning and on the same day Pushpa lodged her FIR
 at Baramati Police Station at about 2-40 p.m. The
 recording of FIR is, therefore, prompt. The fact
 that Pushpa along with her mother went from Malad
 to Baramati Police Station and lodged FIR indicates
 that some incident did take place. In the FIR she
 has named the accused and the fact that she has
 suffered an injury on her face is evident from the
 medical evidence. Witnesses often give an
 exaggerated account. However, it is not necessary
 in all cases to discard the entire evidence of such
 witnesses. A part of the evidence of such a
 witness which is supported by other cogent evidence
 can always be accepted. In this case FIR which is
 lodged promptly contains the name of the accused.
 Pushpa has stated that the accused stopped her
 while she was passing by the sugarcane crop and

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 asked her whether she will do his work. She asked
 him what was the work and she told him that she was

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 in a hurry. Pushpa has stated that after the
 exchange of above conversation the accused caught
 hold of her hand and took her in the field and
 dealt fist blows on her face. So far as the
 finding of the learned Judge that the prosecution
 has not proved the theory of rape is concerned, the
 State has not challenged it. But the case of the
 prosecution that the accused dealt fist blows on
 her face is supported by the medical evidence. In
 the absence of any other evidence, indicating that
 the accused tried to outrage the modesty of Pushpa,
 the only conclusion which can be drawn is that
 because the accused was angered by the reply given
 by Pushpa, he dealt a fist blow on her face causing
 injury on her face. In that event the offence
 would be one under Section 323 of the I.P.C. and
 not under Section 354 of the I.P.C.

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 12. In my opinion, in the circumstances of the
 case, the conviction and sentence of the accused
 under Section 354 of the I.P.C. will have to be
 set aside. The accused will have to be convicted
 under Section 323 of the I.P.C. Hence I pass the
 following order:

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 . "The conviction and sentence of the

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 appellant/accused Mukunda Tatyaba Shende, for the
 offence under Section 354 of the I.P.C. is quashed
 and set aside. Instead he is convicted under
 Section 323 of the I.P.C. and sentenced to suffer
 RI for six months. Needless to say that the
 accused shall get set off for the sentence already
 undergone by him.

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. The accused is on bail. He should surrender to the bail. His bail bond shall stand cancelled.

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 . The appeal is disposed of in the aforesaid
 terms."

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 13. I record my appreciation for the assistance
 given to me by Mr. Machindra Deshmukh.

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 JUDGE.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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 CRIMINAL APPEAL NO. 45 OF 1996

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 MUKUNDA TATYABA SHINDE .. APPELLANT
 (Orig.Accd.No. 1)

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 VERSUS

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 THE STATE OF MAHARASHTRA .. RESPONDENT

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 Shri Macchindra Deshmukh h/f Milind Deshmukh for
 appellant

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 Shri Pradeep Hingorani, APP

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CORAM:SMT. RANJANA DESAI, J.
DATE: AUGUST 22, 2007.

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 OPERATIVE PART OF THE ORDER:

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 . For the reasons recorded in the oral judgment,

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 this court has passed the following order:

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 . "The conviction and sentence of the

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 appellant/accused Mukunda Tatyaba Shende, for the

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 offence under Section 354 of the I.P.C. is quashed
 and set aside. Instead he is convicted under
 Section 323 of the I.P.C. and sentenced to suffer
 RI for six months. Needless to say that the
 accused shall get set off for the sentence already
 undergone by him.

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 . The accused is on bail. He should surrender to
 the bail. His bail bond shall stand cancelled.

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 . The appeal is disposed of in the aforesaid
 terms."

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 JUDGE.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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 CRIMINAL APPEAL NO. 45 OF 1996

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DATE OF DECISION:22/8/2007

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 Submitted for
 approval.
THE HON’BLE (SMT.) JUSTICE RANJANA DESAI:

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THE HON’BLE SHRI JUSTICE:

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 1. Whether Reporters of Local Papers )
 be allowed to see the Judgment? )
 2. To be referred to the Reporters or )
 not? )
 3. Whether Their Lordships wish to )
 see the fair copy of the Judgment? )
 4. Whether this case involves a )

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 substantial question of law as to )
 the interpretation of the )
 Constitution of India, 1950 or any )
 Order made thereunder? )
 5. Whether it is to be circulated to )
 the Civil Judges? )
 6. Whether the case involves an impor- )
 tant question of law and whether )
 a copy of the judgment should be )
 sent to Nagpur, Aurangabad and Goa )
 Offices? )

Mukunda Tatyaba Shinde v. the State of Maharashtra

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Mukunda Tatyaba Shinde v. the State of Maharashtra

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