( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 281 OF 1997 Chandrakant s/o Baburao Garad, R/o Masurdi, Tal. Ausa, Dist. Latur. APPELLANT VERSUS The State of Maharashtra RESPONDENT ..... Mr. S.P. Chavan, advocate holding for Mr. V.D. Salunke, advocate for the appellant. Mrs. Y.M. Kshirsagar, advocate for respondent/State. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 25th August, 2009] ORAL JUDGEMENT : 1. Challenging the conviction and sentence rendered by the learned Additional Sessions Judge, Osmanabad, in Special Case No. 36/1995, for offence punishable under section 354 of the I.P. Code, original accused has come up in appeal. He has been sentenced to ( 2 ) suffer simple imprisonment for six (6) months and to pay a fine of Rs. 200/-, in default to suffer simple imprisonment for 15 days. 2. The prosecution case, in nutshell, is that PW1 Kamal is member of Pardhi community and belongs to Scheduled Caste. Her husband was employed as a police constable and was attached to Omerga Police Station at the relevant time. Her father had been to her husband’s house to fetch her as she was then carrying a child in the womb. Both of them boarded in a S.T. bus at Osmanabad. On the way, at about 5 p.m., the S.T. bus reached at S.T. stand of Dhoki where the adjoining seat was vacated by a co-passenger and, therefore, the appellant sat in the proximity of PW Kamal. Her father was sitting on a front seat. The appellant started moving his hand on her thigh and neck. She asked him to sit properly. For a while, he did not do anything. After some time, again, he pretended that he was under spell of slumber and started falling on her person. When the S.T. bus reached at Kallam, PW Kamal told her father about the misbehaviour of the appellant. The S.T. ( 3 ) bus was taken to the police station where she lodged a report. The appellant was arrested. On basis of material gathered during course of investigation, he was put on to face trial for offence punishable under section 354 of the I.P. Code. 3. At the trial, the appellant denied truth into the accusations. His defence was that he was falsely implicated though during course of the movements of the S.T. bus and because there was rush of passengers, there had taken place accidental dash with person of PW Kamal, which had given rise to a bickering. Thus, his defence was that there was no intention to outrage her modesty and that he has been framed in a false case. 4. It may be mentioned here that PW Kamal alleged that her modesty was outraged because she is member of Scheduled Caste whereas the appellant belongs to higher caste. The appellant was acquitted by the learned Sessions Judge for the offence punishable under section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellant ( 4 ) was, however, found guilty for offence of outraging the modesty of PW Kamal and has been accordingly convicted and sentenced vide the impugned judgement. 5. Heard learned counsel for the appellant and learned APP. 6. There are four (4) witnesses examined by the prosecution including PW4 PSI Sidram Chandke. Out of these witnesses, PW3 Vasant is a school teacher. He has absolutely no reason to speak lie. He was not knowing the appellant or PW Kamal prior to the said incident. He was one of the passengers of the S.T. bus at the relevant time. His version purports to show that adjacent to the bench on which he was sitting, PW1 Kamal was sitting. He noticed that one young person was sitting by her side. He noticed that PW Kamal rang the bell and caused the S.T. bus to be stopped. She immediately made a complaint that the appellant was teasing her by putting his hand on her neck and thigh. The S.T. conductor advised the appellant to behave properly. The S.T. was thereafter taken to police ( 5 ) station at Kallam. His version purports to show that he was occupying the seat No. 18. He deposed that the incident occurred near S.T. stop of village Diksal. It is explicit from his version that PW Kamal immediately objected the conduct of the appellant and informed the S.T. conductor about his misbehaviour. It was not suggested to PW Vasant that the appellant had brushed against person of PW Kamal due to accident and on account of the fact that the S.T. bus was crowded with passengers. Similarly, PW2 Janak narrated that PW Kamal complained of her outraging modesty by the appellant. He admits that there was crowd of passengers in the S.T. bus. He also admits that the appellant was telling that he accidentally had touched the woman and, therefore, the S.T. bus should not be taken to the Police Station. 7. There is testimony of PW1 Kamal in support of the FIR (Exh-22). At the relevant time, she was hardly 20 years old and was traveling in the S.T. bus to go to house of her parents for the purpose of delivery. Her version reveals that the appellant indulged in sexual advances by moving his hand on her thighs. Her version ( 6 ) reveals that the appellant was putting his person on herself under pretext that he had fallen asleep. She admits that she did not tell her father to change the seat because the appellant was falling on her person. It is pertinent to note that PW Kamal was not knowing the appellant before the incident. She had no reason to falsely implicate him in the crime. 8. The learned advocate for the appellant would submit that there is probability to infer that due to crowd of passengers, the appellant had accidentally touched the person of PW Kamal but she had blown up the incident disproportionately. He would submit that ordinarily, PW Kamal would have sought change of the seat. He would submit that considering the reaction of PW Kamal, it should be gathered that she attempted to make out mountain out of a molehill. Reliance is also placed on certain observations in “Pandurang Sitaram Bhagwat v. State of Maharashtra” (2005) 9 SCC 44. 9. In “Pandurang Sitaram Bhagwat v. State of ( 7 ) Maharashtra” (supra), the Apex Court noticed that there was animosity between both the parties. There were quarrels between the said appellant and Pandurang and other tenants. The Apex Court held that ordinarily, impression that a woman would not put her character at stake, is not a rule of universal application. The Apex Court, however, made it clear that the strained relationship between the parties was required to be taken into account by the High Court. As stated earlier, in the present case, PW Kamal and the appellant were not known to each other prior to the said incident. She had no business to attribute false charge of outraging her modesty by the appellant and particularly, when her father was traveling in the same S.T. bus. The version of PW Kamal is partly corroborated due to the testimony of PW3 Vasant, who is a school teacher and corroborated the fact that she had immediately told the S.T. bus conductor about the eve teasing. The conduct of PW Kamal amounts to `res geste’ and, therefore, such evidence is admissible. The appellant did not say sorry to PW Kamal nor he made attempt to get his seat changed ( 8 ) after she attributed the charge of outraging her modesty by him. Under these circumstances, conviction of the appellant for offence punishable under section 354 of the I.P. Code cannot be faulted with. 10. So far as question of sentence is concerned, it may be stated that the appellant was aged about 30 years at the relevant time. He might have been attracted towards PW Kamal when he saw that she was traveling alone. The substantive sentence of six (6) months’ simple imprisonment is not warranted without the criminal force used against PW Kamal is not excessive and that the incident was over within a short while. The appellant is not proved to be a habitual offender. No bad antecedents are brought on record to infer that he was in habit of indulging in similar kind of incidents. The sword of the imprisonment is hanging on his head since about twelve (12) years. Considering these peculiar circumstances, I am inclined to hold that the substantive sentence of six (6) months’ simple imprisonment may be done away with and the fine amount may be increased. ( 9 ) 11. In the result, the appeal is dismissed. The impugned order conviction is maintained. However, the sentence is altered and modified. Instead of sentence of simple imprisonment for six (6) months, the appellant is sentenced till rising of the Court and instead of fine amount of Rs. 200/-, the fine of Rs. 1000/- is substituted. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIAPL281-97