Dismissed

Tanaji Mahadeo Shinde v. Kalpana Uttareshwar Chavan and Anr.

Bombay HC18 Apr 2013REVN/375/2012

Case brief

AI extract

What is this about?

In a criminal revision application, the Bombay High Court upheld the conviction of the original accused for outraging modesty and causing hurt. The bench rejected the argument that disbelieved portions of the testimony regarding events outside the house should vitiate the conviction for the separate incident of molestation inside the house.

What did the court decide?

The criminal revision application was dismissed, and the order of the Addl. Sessions Judge confirming the conviction was upheld.

Tanaji Mahadeo Shinde Vs Kalpana Uttareshwar Chavan and Anr. — Bombay HC (2013) — LawSathi Research

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(1) (2) Revn 375/12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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Amk

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CRIMINAL REVISION APPLICATION NO. 375 OF 2012

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Tanaji Mahadeo Shinde Vs.

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.. Applicant

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Kalpana Uttareshwar Chavan & Anr. .. Respondents

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Mr. Vinod Jadhav for the Applicants. Mr. Samir Kumbhakoni for Respondent No.1. Mrs. A. A. Mane, APP for the State.

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CORAM : MRS. ROSHAN DALVI, J. DATE : 18th APRIL, 2013.

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P.C.

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The applicant/original accused No.1 has challenged the order of the Addl. Sessions Judge, Solapur dated 14.09.2012 confirming the order of the learned J.M.F.C., Karmala against accused No.1 under Section 354 & 452 of the IPC. The learned J.M.F.C., Karmala by his judgment dated 10.10.2008 convicted accused No.1 of the aforesaid offences as also the other offences and accused Nos.2, 3 & 4 for the other offences. The conviction under those sections has been set aside by the learned Addl. Sessions Judge, Solapur. There is no appeal therefrom.

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The Court in this Revision Application is only to consider the case of the complainant under Section 354, 452 of the IPC against applicant/original accused No.1.

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The case of the complainant is that at 12 noon on 26.10.2004 when she was alone and sleeping in the house, applicant/original accused No.1 came in her house and pressed her breasts and molested her due to which she got up. The accused pressed her mouth and dragged her. He uttered the insulting words. She resisted him. The accused slapped her on

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(2) (2) Revn 375/12

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face and again molested her. She has described that molestation.

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She has narrated that incident briefly and succinctly in para 1 of the complaint.

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She has led evidence about that incident. She has further deposed how she went out of the house to lodge her complaint when she was apprehended, threatened and resisted by accused Nos.1 to 4 so that she returned to her house.

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She has further deposed that when her husband returned from work she stated the entire incident to him. She has also deposed that she went to Kem Outpost and narrated her story but the police did not make any report and hence she lodged the complaint.

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She has been extensively cross-examined. A great part of the cross-examination has gone into showing the layout of the locality. There are many houses and many persons living near the house of the complainant. That is the usual topography of any village, town or city in India. That does not mean that no offence of the kind alleged by the complainant can take place in a crowded locality. The Courts have considered that the complainant could not shout because the applicant herein/accused No.1 closed her mouth. He would overpower her. He would see that no noise is made whilst he committed the offence. Consequently the neighbours, many though there be, cannot come to her rescue her at the time of the incident and and cannot depose at the time of the evidence. Her single testimony would suffice for the offence of outraging her modesty.

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She has stood in the ground of cross-examination. The

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(3) (2) Revn 375/12

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incident transpired in her home. She was alone. She alone could depose. Hence that evidence is natural and acceptable without corroboration. The learned Magistrate has seen that it is credible and trustworthy as no enmity of the complainant with the accused was shown. The learned Sessions Judge has reconsidered this evidence and accepted it. The evidence does not show anything by which she could be disbelieved.

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It is argued on behalf of the applicant herein/original accused No.1 that her testimony about what transpired outside the house thereafter has been disbelieved and hence her testimony about what transpired in her house must also be disbelieved as a part of the same transaction/incident. That argument does not stand to reason. The case of the complainant under Section 354 commences and completes in her house. It is a separate incident. It makes out a separate offence. Her complaint shows that thereupon she left the house to lodge the complaint. What transpired thereupon is a separate incident constituting a separate offence for which all the accused including the applicant herein have been acquitted. Because she is disbelieved with regard to the second incident is not the reason to disbelieve her with regard to first incident. Each aspect of even a single incident has to be decided on its own merits. A Court can accept part testimony with regard to even a single incident. Hence when there are two incidents, one in the house and one outside, the testimony with regard to both would have to be considered independently and separately. Both the Courts have considered this testimony correctly.

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It is contended that she lodged her complaint after 4 months. That may be a circumstance which would put the Court on guard as to the credibility her evidence, given that her latter testimony is disbelieved. However upon the incident of outraging her modesty she went out of the

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(4) (2) Revn 375/12

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house to complain. The fact that she went out has been seen though what the accused Nos.1 to 4 did to her may have been disbelieved. She could not have gone out of the house for any reason other than to complain. In fact she would have stood indoors if she did not want to complain or if the offence never took place. Her evidence also shows that she went to Kem Outpost but the police did not record her report. She is expected to wait for the police to take action. She would be apprehensive if the police did not record her report. She would think twice before lodging the complaint for the offence of molestation. The delay in such cases has been consistently not held to be fatal in a case such as this. Her evidence which has withstood her cross-examination would have to be believed despite the delay.

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Consequently the impugned order of the learned Addl. Sessions Judge, Solapur dated 14.09.2012 with regard to the offence punishable under Sections 354, 452 of the IPC upholding the conviction of the applicant herein/original accused No.1 cannot be faulted. The reasoned and detailed order of the learned Magistrate dated 10.10.2008 to that extent which has been confirmed must, therefore, be upheld. Hence the Criminal Revision Application is dismissed.

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The applicant/original accused No.1 shall surrender before the police within two weeks, failing which the Senior Inspector of Police of the concerned Police Station shall take him into custody to serve his sentence.

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(ROSHAN DALVI, J.)

Tanaji Mahadeo Shinde v. Kalpana Uttareshwar Chavan and Anr.

Case brief

What is this about?

What did the court decide?

Tanaji Mahadeo Shinde v. Kalpana Uttareshwar Chavan and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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