( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 119 OF 1999 WITH CRIMINAL REVISION APPLICATION NO. 34 OF 1999 * * * * * CRIMINAL APPEAL NO. 119 OF 1999 The State of Maharashtra .. Appellant Versus 1. Sheshrao Nathuji Kalambe .. Respondents Age. 38 years, R/o. Hingoli. 2. Sindubai w/o. Sheshrao Kalambe Age. 30 years, Occ. Nil, R/o. Hingoli, Dist. Parbhani. Mrs. B.R. Khekale, A.P.P. for the appellant. Shri J.G. Toshniwal, Advocate for the respondents. * * * * * WITH CRIMINAL REVISION APPLICATION NO. 34 OF 1999 Ujwala d/o. Umarao Salve .. Petitioner Age. 15 years, minor u/g of her father Umarao s/o. Vithalrao Salve, Age. Major, R/o. Hingoli, Dist. Parbhani. ( 2 ) Versus 1. Sheshrao s/o. Nathuji Kalambe .. Respondents Age. 38 years, 2. Sindhubai w/o. Sheshrao Kalambe Age. 30 years, Both resident of Hingoli, Dist. Parbhani. 3. The State of Maharashtra Shri P.S. Agrawal, Advocate for the revision applicant. Shri J.G. Toshniwal, Advocate for respondent Nos. 1 & 2. Mrs. B.R. Khekale, A.P.P. for respondent/State. CORAM : P.R. BORKAR,J. DATED : 11.12.2009 ORAL JUDGMENT :- 1. These appeal and revision are filed by the State, and the original complainant respectively being aggrieved by the order of acquittal passed by the Judicial Magistrate, First Class, Hingoli, in Summary Criminal Case No. 8 of 1998, decided on 10.12.1998, whereby respondent No.1 is acquitted of offence punishable under Section 354 of the Indian Penal Code and both the respondents were acquitted of offences ( 3 ) punishable under Sections 448, 353 and 294 read with 34 of the I.P.C. 2. Briefly stated it is case of the prosecution, as appearing from the complaint lodged by P.W.2-Ujwala Uttamrao Salve, that she was student studying in 7th standard. She is blind. She was studying in Blind School cum Hostel at Hingoli. Respondent No.1 – Sheshrao Kalambe was music teacher, who was also blind. On 06.08.1997 in the morning P.W.2-Ujwala along with four other girls had gathered in the class room of 7th standard and were studying. At that time respondent No.1 Sheshrao came there and asked P.W.2-Uttamrao to give rhythm on her hand and she gave rhythm. At that time accused No.1 held her left hand and asked her to come to class room of 5th standard. When P.W.2 – Ujwala went to class room of 5th standard, accused No.1 followed her and asked her if she would obey him and touched her cheek and pressed hand and asked if he should close the door. At that time P.W.2- Ujwala told respondent No.1 that she would inform Head Master Shri Bhalerao. At that time respondent No.1 told her not to tell anything to Head Master Bhalerao. On 07.08.1997 at 8.00 a.m. respondent No.1 came to the class room and asked P.W.2- ( 4 ) Ujwala to stand and started scolding her. At that time she said that it was her fast day and she should not be scolded. Then respondent No.1 went to music room. On 08.08.1997 it was Thursday and the above said incident was told by P.W.2- Ujwala to Head Master Shri Bhalerao, who said that he would inform to Shri Devda – President of the Institution. It is further complained by P.W.2-Ujwala that on 13.08.1997, the day of lodging of complaint, she was in the 7th standard. When teacher – Panchal and one boy Satish were also present there. At that time respondent No.1 came there, held hand of P.W.2-Ujwala and dragged her to the office of Head Master Bhalerao. There teacher – Bora, Shobhabai and Sanjubhaiya were present and in presence of all, respondent No.2 Sindhubai - (wife of respondent No.1 Sheshrao) asked P.W.2- Ujwala what she had told about her husband (respondent No.1) to Shri Bhalerao and then beat P.W.2-Ujwala with footwear and used filthy language. At that time Head Master Bhalerao was trying to calm down respondent No.2 – Sindhubai. Respondent No.2 even abused Bhalerao and beat him with footwear. At that time respondent No.1 – Sheshrao had held waist of Bhalerao. It was time of 11.00 a.m. ( 5 ) 3. On the above said complaint, crime was registered. Spot panchanama was drawn, but nothing significant was found. Then statements of various witnesses were recorded. Finally, charge-sheet was sent. 4. After charge-sheet was filed in the Court, the respondents were put on trial. Five witnesses were examined. Ultimately, order of acquittal was passed. It is this order, which is challenged in these appeal and revision. 5. One of the important arguments made by the learned Advocate Shri Toshniwal for the respondent is that complaint itself shows that P.W.2-Ujwala was tutored. He drew my attention to evidence of P.W.5-Chhaya, who was 11 years old blind girl. She specifically stated that she could not tell whether it was day or night and what is day unless somebody told her. It is argued before this Court that if we consider the complaint, it is not in the words of P.W.2-Ujwala. It is possible that such girl would say that eight days before in the morning, respondent No.2 asked her to come in another room, but she would not tell that it was eight days before, on 06.08.1997, on Wednesday. Similarly, she further stated ( 6 ) that on next day i.e. 07.08.1997, she was asked to stand in the class room and when she protested, respondent No.2 went to music room. A blind girl would know that the teacher had gone away, but she would not know if the teacher has gone to music room. Similarly, she further stated that on 08.08.1997 on Thursday she told to Head Master Bhalerao. She further stated that ‘Today on 13.08.1997’. Ordinarily, a blind person would say today and that would be understood by anybody from the date of the complaint. Similarly, it is argued before this Court that it was possible for P.W.2- Ujwala to identify her music teacher, who was teaching her from first standard, but it was difficult to believe that she would identify respondent No.2 from voice. Not only Ujwala identified respondent No. 2 but described her as Sindhubai Sheshrao Kalambe, which a student is not likely to know, particularly first name. She would only know that particular lady is wife of her teacher. Then, she also stated about respondent No.1 holding waist of Head Master Bhalerao, when letter was being beaten by respondent No.2. A blind would know that some beating was going on, may be she would infer that beating was to Head Master, but it is difficult to know how she perceived that respondent No.1 has held waist of ( 7 ) Bhalerao. She even stated that at that time it was 11’ clock. So, it is argued by Adv. Shri Toshniwal that entire complaint is dictated by somebody else in the name of P.W.2- Ujwala and it is not complaint given by P.W.2-Ujwala in her own words and therefore we will have to find out whether P.W. 2-Ujwala is a person who can be relied upon and trusted. 6. Adv. Shri Toshniwal has also taken me through examination-in-chief of P.W.2-Ujwala as recorded in the Court and stated that even though her statement was recorded on 08.09.1998, about one year after the incident, she could begin her deposition with words that the incident took place on 06.08.1997 and it was about 7.00 a.m. Ordinarily a blind witness would say that the incident took place one year ago in the morning. It may be noted that she was a blind girl. Similarly, in the examination-in-chief, she stated the entire incident almost as her complaint with some variations. Thus, when her cheek was touched and hand was pressed respondent No.1 asked whether door should be closed, at that time P.W.2- Ujwala simply said that she went out of the room. It is also argued that in examination-in-chief it is stated that when P.W.2-Ujwala protested for scolding in the class room and ( 8 ) said that she would make complaint to Head Master Bhalerao, at that time accused gave her threat of killing. So, this is an improvement. Then again witness states that on 8th August i.e. Friday Head Master Bhalerao came in the school. The witness not only remembered date and day after one year, but she further stated that four days thereafter on Tuesday, 13th August, the accused along with his wife came in the school at 11.00 a.m. So, these are not things which are expected from a blind girl unless she is tutored. Ordinarily, she would not be in a position to tell day and date or that respondent No.1 had come with his wife. Then she further stated that when she was taken to the chamber of Head Master, teacher Bora and Head Master Bhalerao were present in the office and then accused No.2 – Sindhubai slapped her with footwear and abused and insulted. At that time Shri Bhalerao intervened but respondent No.1 caught hold him and then Sindhubai slapped head master by footwear and then Sanju Bhaiya and Shobhabai intervened. So, it is argued that so far as this description of incident is concerned, at most a blind girl would say that Head Master was beaten. She would not be in a position to give details that accused No.1 had held Head Master while accused No.2 was beating her or which persons ( 9 ) intervened, particularly those persons who were not earlier present such as Sanju Bhaiya and Shobhabai. She even states in examination-in-chief that she went to Gramin Police Station, Hingoli. So, there is reason to believe that evidence of P.W.2 might be tutored as many things given in the evidence which are not natural for a blind person to describe. 7. So far as identification by P.W.2-Ujwala of respondent No.2 is concerned, it is also doubtful. She said that once or twice in a year while going to hospital there was occasion to visit house of the accused, as it was on the way and there was Haldi-Kunku festival. It is argued that here was girl who was 14 years of age, studying in the 7th standard. She would not be invited for Haldi-Kunku rites. Generally, married women are called for such rituals and girls may accompany their mother or other female relatives for such rituals. So, it is doubtful, whether really P.W.2- Ujwalabai had occasion to identify respondent No.2. It is not her say that she heard from others that the lady who was with respondent No.1 was wife of respondent No.1. Such explanation could have been easily accepted. In the cross- ( 10 ) examination the witness states that Head Master Bhalerao reported the incident to Devda on 13.08.1997. At the same time she states that she was not remembering if school teachers had tied respondent No.1 in the school office and message sent to accused No. 2 to come to school. The learned advocate said that the answer is that she was not remembering. It is not that she was not knowing about it. There is difference between remembering and knowing. Relying on this suggestion it is said that the defence of the accused should be accepted. 8. In his statement under Section 313 of the Cr.P.C., accused No.1 said that on 07.08.1997 salary amount of three months i.e. April, May and June was credited to his account and salary of July was stopped by Social Welfare Department. The Head Master was demanding Rs. 10,000/-. He was not agreeable to pay the amount and therefore the management wanted to terminate services of respondent No.1 – Sheshrao, and therefore he was falsely involved in this case with the help of the complainant – Ujwala. It is further stated that the Head Master insisted on written apology letter from the accused No.1, for which he was not agreeing and therefore his ( 11 ) wife was called in the school. He further stated that on 13th August he was tied in the office and his wife was called in the school. Thereafter, Head Master Bhalerao and teacher Bora left the school on her arrival of wife of respondent No. 1 and she rescued him. Accused No.2 in her statement stated that on 13th August her husband was tied in the office of Head Master and she was called in the office. When she reached the office, Head Master Bhalerao and teacher Bora were present and as soon as she entered in the room, both have left the school. There was intention to remove respondent No.1 from the school and therefore they were involved. 9. So far as evidence of Head Master Bhalerao is concerned, he stated that on 8th August, P.W.2-Ujwala came to him and reported that she was called along with other girls in the school and respondent No.2 asked her alone to accompany him to the 5th standard and then touched her cheek and questioned whether she would obey, he should close the door. When this was reported to Head Master Bhalerao, he felt that he was unable to take action and the incident should be reported to the President. The president advised him to give warning to accused No.1 to be careful in future, ( 12 ) else he would be removed. Thereafter, respondent No.1 was called in the office at 8th itself and enquiry was made regarding alleged incident. Respondent No.1 denied the allegations but warning was given to him. Thereafter, on 13th August, respondent No.1 along with respondent No.2 came to the school at about 11.00 a.m. At that time Head Master was giving instructions to clerical staff. Respondent No.2 stood at the door of the office. Respondent No.1 directly went to class room and brought dragging P.W.2-Ujwala and produced her before Head Master. At that time respondent No.2 asked complainant – Ujwala, how she made allegations against her husband and abused her and beat her with footwear. When Head Master Bhalerao intervened, respondent No.2 attacked him and started beating him with footwear. At that time respondent No.1 held him from back side on the waist and asked accused No.2 to beat him. Thereafter, staff came there and rescued the Head Master. Head Master Bhalerao along with P.W.2- Ujwala went to President Shri Devda and reported the matter. It is alleged that Devda made telephone to school and tried to contact accused No.2, but accused No.2 abused him on telephone. It is argued before this Court that unless both accused were confined, how is it that accused No.2 replied ( 13 ) phone call made by Devda to school and abused him on telephone. Ordinarily, after such incident both respondents would have immediately left the office of Head Master. 10. One more thing that needs attention is that unless respondent No.1 was innocent and was not involved in the first incident, he would not come with his wife – respondent No.2 to school and dare to bring the complainant dragging before the Head Master and respondent No.2 would not also beat complainant in presence of Head Master. Such action can happen only if there is innocence on the part of accused No.1 and confidence accused No.2 had in accused No.1 regarding his innocence. Otherwise the respondents would have been defensive in their behaviour. They would have tendered apology. They would have have prayed for not taking action against respondent No.1. So, conduct is such that the first incident and the last incident do not go hand in hand. Both cannot be true. 11. It is also argued by Adv. Shri Toshniwal that the complaint of P.W.2-Ujwala which was recorded by the Head Master was in the office filed of the school, but it is not ( 14 ) produced. In the cross-examination of Bhalerao it has come on record that there was extra class of music. To teach music to blind students, teachers have to touch their person. P.W. 3-Bhalerao himself has not lodged complaint to police. The complaint is lodged by P.W.2-Ujwala, a blind girl, which does not appear to be dictated by her. It is also admitted by Head Master that Shashikalabai, Vasant Menthe, Anita Chendake and Kantabai Ingale were removed from service of the school. However, it is denied that they were removed for not being obedient. The Head Master also denied that he demanded Rs. 10,000/- to respondent No.1 on 8th August, after amount of salary was credited. It is also denied that respondent No.1 refused to pay. It is also denied that on 13th August, accused No.1 was tied in the office and one of the employees went to call accused No.2 and thereafter the respondents were falsely involved. 12. P.W.4-Sanjay Bora is another witness who was present at the time of incident on 13th August. He stated that he was with the Head Master in his office and both respondents came during school hours. Respondent No.1 brought complainant – Ujwala to the office of Head Master and ( 15 ) both the accused questioned the complainant – Ujwala, what she had told Head Master about respondent No.1. Thereafter, suddenly accused No.2 took out her footwear and started beating Ujwala. Simultaneously, she abused her. Some people gathered there. He was also present there. When Head Master Bhalerao intervened in the quarrel accused No.1 caught hold of Bhalerao from back side tightly and accused No.2 beat him. It is not explained why Head Master Bhalerao should have been beaten with footwear, when complainant was brought to Head Master to confess what was the real matter and why she was falsely accusing respondent No.1. If that was the intention of bringing the complainant, obviously, the object was to satisfy the Head Master about innocence of respondent No.1 and unless something has happened, which is not coming on record, it is improbable that respondent No.2 would beat Head Master. Otherwise, respondent Nos. 1 and 2 would have gone to Devda, President of the Institution, if they had grievance against both complainant – Ujwala and P.W.3-Bhalerao. So, this aspect has not been explained. 13. There is evidence of P.W.5 – Chhaya, who is 11 years old girl. She stated to be present on 6th August at ( 16 ) 7.00 a.m. for practice of national anthem. This witness also told full date and time. She said that they had come at 7.00 a.m. Kalambe sir had come at about 7.20 a.m. 14. Taking into consideration probability of defence, in my opinion, here is case which raises certain doubts. It is also argued by Adv. Shri Toshniwal that respondent No.2 is also handicapped by leg and she was not wearing any footwear. Suggestion to that effect was denied by A.S.I. Shete. The nature of handicap is not brought on record. It is argued before me that in this case footwear was not attached, because respondent No.2 was not using any footwear. 15. Adv. Shri P.S. Agrawal argued that unnecessarily certain observations are made against Shri Devda, President of the Institution. In my opinion, without any opportunity to Shri Devda, his conduct should not have been subjected to criticism. It is well settled principle that strictures should not be passed against any person, unless he is given opportunity of hearing. Shri Devda was not examined as witness and he is not heard. So, any criticism against him is not justified. ( 17 ) 16. In these circumstances, in my opinion, in view of reasons discussed above, the order of acquittal passed by the Trial Court cannot be disturbed in this appeal against acquittal. Hence, the Criminal Appeal as well as Criminal Revision Application are dismissed. sd/- [P.R. BORKAR,J.] snk/2009/DEC09/crap119.99 “AUTHENTICATED COPY” (S.N. KULKARNI) P.A. TO HON’BLE JUDGE