IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.116 of 2001. CRIMINAL REVISION APPLICATION NO.116 of 2001. CRIMINAL REVISION APPLICATION NO.116 of 2001. Shivram Narayan Hambare ..Applicant versus The State of Maharashtra ..Respondent Mr.Ganesh Gole for the Applicant Mr.H.J.Dedhia for the State Respondent CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 4th June, 2008. DATED : 4th June, 2008. DATED : 4th June, 2008. ORAL JUDGMENT. ORAL JUDGMENT. ORAL JUDGMENT. 1. The applicant faced criminal trial before the learned Judicial Magistrate, I Class, Nashik in case SCC No.630 of 1998 along with two other persons Tukaram and Sukhdeo. The applicant and two others faced the trial under Section 504, 506 and 509 r/w. Section 34 of IPC. The trial ended in conviction of the applicant and two others. The learned Judicial Magistrate, I Class, Nashik, hereinafter referred to as the learned Trial Judge convicted the applicant and two others under Section 504, 509 r/w. 34 of IPC and acquitted them under Section 506 r/w. Section 34. Sentences were provided for as set out in the judgment and Order dated 15.11.2000 delivered by the learned Trial -2- Judge. Being aggrieved by the said judgment dated 15.11.2000 the present applicant and two co-accused preferred Criminal Appeal No.55 of 2000 which was assigned to 3rd Addl. Sessions Judge, Nashik, hereinafter referred to as the learned Addl. Sessions Judge. The learned Addl. Sessions Judge by his Judgment and Order dated 28.3.2001 partly allowed the appeal and he confirmed the conviction and sentence passed against the present applicant under Section 509. The conviction and sentence against the other two accused under Section 509 was confirmed. Conviction of the present applicant and two co-accused under Section 504 was set aside. Hence the present applicant stood convicted under Section 509 of IPC by the Order dated 28.3.2001 thereby confirming conviction of the applicant under Section 509 and ordered a sentence of fine of Rs.3000/-. The applicant has filed this revision challenging the order passed by the learned Addl. Sessions Judge confirming the order passed by the learned trial Judge. 2. Few facts necessary for the disposal of this revision are as under: -3- . Sulochana Malode is the complainant in the present case and according to her certain incident of beating had taken place on 15.5.1998 and the applicant and co-accused had assaulted and abused said Sulochana P.W.1. complainant. On 21.5.1998 the applicant and co-accused came near her house in the afternoon and started abusing her and the applicant pulled down his pant and indulged in overt act so as to show his private part to said Sulochana and uttered certain words "amche kay zate wakde karnar ahe". FIR came to be filed at Exhibit 15 and the investigation was conducted and the trial ended as mentioned aforesaid. The appeal proceeding ended as mentioned above. At trial, the witnesses were examined and out of them following witnesses will have to be termed as important, namely Sulochana P.W.1 is the victim complainant, Subhash P.W.2 is the husband of Sulochana P.W.1, and Alka P.W.3 is cited as eye witness. P.W.4. Shaikh is police officer who had carried out the investigation. 3. At this juncture it is required to be mentioned that though the learned trial Judge had acquitted the present applicant under Section 506 -4- of IPC no formal appeal was filed by the State. Similarly, though the applicant was acquitted of charge under Section 504 of IPC by the learned Addl. Sessions Judge, no formal appeal was filed against the said Order dated 28.3.2001. It is in these circumstances it became necessary for this court to assess the matter with reference to the Order of conviction of the applicant under Section 509 of IPC passed by the learned trial Judge and confirmed by the learned Addl. Sessions Judge. 4. I have heard learned Advocate Mr. Gole appearing on behalf of the applicant and Mr. Dedhia appearing on behalf of the State. Since both the courts had convicted the applicant under Section 509, I feel that it is proper to go through the evidence in order to see as to whether there was need to interfere with the orders passed by the two courts as mentioned above. It is required to be mentioned that though the learned trial Judge had accepted the testimony of P.W.2 Subhash, husband of Sulochana P.W.1, and Alkabai P.W.3, the learned Addl. Sessions Judge by his detail reasons and by appreciating the evidence, discarded the evidence of Subhash P.W.2 and Alkabai P.W.3 and no -5- serious challenge is put to those observations by the State. Evidence of Shaikh-P.W.4 is with reference to the investigation carried out and is of not much consequence to the point involved in the matter. Learned Advocate Gole read to me the evidence of P.W.1 Sulochana and had advanced the following submission to contend that the learned Addl. Sessions Judge erred in accepting the evidence of P.W.1 Sulochana. According to learned Advocate Mr. Gole when the learned Addl. Sessions Judge discarded the evidence of P.W.2 Subhash and P.W.3 Alkabai, the learned Addl. Sessions Judge ought to have discarded the evidence of P.W.1 Sulochana also and to that extent there is an error on the part of the learned Addl. Sessions Judge. I am not inclined to accept this argument because if after appreciating the evidence on record, if the evidence of certain witnesses is discarded that would not mean that the case of the prosecution as a whole is required to be rejected. The case of the prosecution will have to be decided on the basis of evidence of such witnesses whose evidence is not discarded. In view of this, appreciation of evidence of P.W.1 Sulochana by the learned Addl. Sessions Judge was proper and no fault can be found -6- therein. 5. Learned Advocate Mr.Gole submitted that if the evidence of P.W.2 Subhash and P.W.3 Alkabai is discarded the evidence of P.W.1 Sulochana being the sole witness remains on record and therefore it would be unsafe to accept her evidence so as to convict the applicant. Mr.Dedhia opposed this submission contending that merely because the case revolves around evidence of single witness that is not sufficient to give benefit to the applicant and this Court should not mechanically discard the evidence of Sulochana-P.W.1. particularly when the two courts below have accepted her testimony without any hesitation. The submission advanced by learned Advocate Gole is required to be rejected because if the testimony of P.W.1 Sulochana is accepted by the Courts below it can’t be rejected out right as there is no other eye witness giving evidence on behalf of the State. 6. In my view, it would be necessary to consider the evidence of P.W.1 Sulochana with reference to the views expressed by the learned Addl. Sessions Judge and decide the matter. -7- 7. Cross examination of P.W.1 Sulochana was conducted with reference to the presence of the others on the street when the incident is said to have taken place and to that extent it will have to be observed that Sulochana P.W.1 has in fairness stated that some persons were standing at a distance of about 25 feet at the time of the incident and she does not recollect their names. This evidence on part of P.W.1 Sulochana would go to show that the witness did not have tendency to give names of certain persons as witnesses simply so as to support the case of the prosecution. Since the incident has taken place in front of the house of P.W.1 Sulochana, it is quite probable that some persons as members of the public would be moving about at some distance from the complainant. Statements of such persons have not been recorded and no fault can be found therein. P.W.1 Sulochana has fairly stated that she does not recollect their names. If she had the intention to falsely implicate the present applicant she would have easily provided their names and tried to strengthen the case of the prosecution. Hence evidence of P.W.1 cannot be turned down. -8- 8. The applicant had set out the defence before the learned trial Judge as well as before the learned Addl. Sessions Judge that there was enmity between the applicant on one hand the Sulochana and her husband on the other hand since 1997 and that the long standing enmity is the ground to falsely implicate the present applicant and two others. True that the evidence of Sulochana goes to indicate that there was enemity between the two factions, however, the manner in which P.W.1 Sulochana has narrated the incident it would be difficult to accept that purely to implicate the present applicant Sulochana would say something which in the normal course would not be said by a married lady. The evidence given against the applicant is serious, in as much as he is said to have pulled down his pant and exhibited his private part to Sulochana in open place and he is also said to have uttered certain words in filthy language which a gentleman would not have uttered. In my view the mere long enmity by itself cannot be considered in favour of the applicant to hold that applicant was falsely implicated by Sulochana P.W.1. Evidence of P.W.1 Sulochana nowhere goes to -9- show that she did file FIR with a view to falsely implicate the present applicant. If at all she intended to falsely implicate the applicant, things could not have rested at what is said in the FIR. Hence theory of false implication advanced before this Court cannot be accepted. 9. It was argued by learned Advocate Mr. Gole that the applicant is servant employed in the Government Service and respectable man in the society and therefore it is inconceivable that he indulged in an overt act as set out in the evidence of P.W.1 Sulochana and that the case put up by P.W.1 Sulochana is highly improbable and therefore seems to be suspicious. Learned Advocate Mr. Dedhia opposed contending that it is not open for this Court to accept this submission as the Court will have to appreciate the evidence led by Sulochana P.W.1 as it is. I am in agreement with the submission advanced by learned Advocate Mr. Dedhia and the argument advanced by Mr. Gole that the applicant would not indulge in an particular overt act merely because he happens to be a Government Servant cannot be accepted. -10- 10. Learned Advocate Mr. Dedia submitted that if one goes through the evidence of P.W.1 Sulochana there is no suggestion given by the applicant that the presence of the applicant set out by P.W.1 Sulochana is disputed by the applicant by putting appropriate questions in the cross examination. Learned Advocate Mr. Dedhia submitted that the learned Addl. Sessions Judge rightly accepted the testimony of Sulochana P.W.1 and proper reasons have been given by him in paragraphs 18, 19 and 20 of the judgment. I am in agreement with the submissions advanced by learned Advocate Mr. Dedhia. 11. In view of the aforesaid discussion, the arguments advanced by learned Advocate Mr. Gole to press the revision cannot be accepted and the decision of the learned trial Judge as well as the learned Addl. Sessions Judge in regard to conviction of the applicant under Section 509 of IPC cannot be faulted. Both the courts have appreciated the evidence in its proper perspective and have rightly convicted the applicant under Section 509 of IPC. -11- 12. In so far as the question of punishment imposed upon the applicant is concerned, the learned trial Judge has sentenced the applicant to pay fine of Rs.3000/- and no sentence in nature of imprisonment has been imposed. The Order of sentence was confirmed by the learned Addl. Sessions Judge and he has also not imposed sentence by way of imprisonment. This will actually go to show that a lenient view has been taken by the learned trial Judge as well as the learned Addl. Sessions Judge and as such the question of sentence also will have to be answered against the applicant and the sentence imposed upon the applicant will have to be confirmed. 13. For the reasons mentioned aforesaid, I am inclined to observe that there is no reason to interfere in the impugned judgments in the revisional jurisdiction of this Court and hence the revision application is required to be dismissed. Hence the Order. ORDER . Rule is discharged. -12- (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)