1 Cri-Appeal-582-92-&-Ors..sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 582 OF 1992 WITH CRIMINAL APPEAL BO. 583 OF 1992 WITH CRIMINAL APPEAL NO. 728 OF 2005 CRIMINAL APPEAL NOS. 582/1992 & 583/1992 The State of Maharashtra ... Appellant Vs. Vishwas Raghunath Shinde ) Police Constable B.Noo.696 ) Police Stn. Sawantwadi, District ) Sindhudurg. ).. Respondent CRIMINAL APPEAL NO. 728 OF 2005 Vishwas Raghunath Shinde ... Appellant (Orig. Accused) vs. The State of Maharashtra ... Respondent Mr. Y.M.Nakhwa, APP, for the appellant - State (in Appeal No.728/2005 for the respondent). Mrs.Shakuntala A.Mudbidri,Advocate for the respondent. (in Appeal No.728/2005 for the appellant) CORAM: J.H.BHATIA,J. DATE : 15th December, 2010. JUDGMENT : 1. All these three Appeals arise out of the same judgment dated 2 Cri-Appeal-582-92-&-Ors..sxw 6.8.1992 in Regular Criminal Case No.38/1989 passed by the Chief Judicial Magistrate, Sindhudurg, whereby the accused was convicted for the offence punishable under Sections 332 and 353 of IPC and was sentenced to undergo R.I. for six months and to pay fine of Rs.1,000/- on first charge and to undergo R.I. for three months and to pay fine of Rs.500/- on the second charge but he was acquitted of the charge under Sections 504, 506 Part II and 509 of IPC. 2. Appeal No.582/1992 is filed by the State against acquittal of the accused for the charges under Sections 504, 506 Part II and 509 of IPC. Appeal No.583/1992 is also filed by the State for enhancement of the sentence for the offence under Sections 353 and 332 of IPC. Originally, this Appeal was filed before the Sessions Court at Sindhudurg and was transferred to this Court. Appeal No.728/2005 is filed by the accused against his conviction and sentence for the charges under Sections 332 and 353 of IPC. This Appeal was also filed originally before the Sessions Court at Sindhudurg and was transferred to this Court. 3. Prosecution case, in brief, is that the accused was an armed Police Constable posted with Police headquarters at Sawantwadi. PW-1 Rajlaxmi Rane, was a lady Constable and she was on duty at the Police headquarters and her duty was to receive orders, letters, communication, etc. and to distribute the same to 3 Cri-Appeal-582-92-&-Ors..sxw the concerned persons. According to the prosecution, on 28.12.1988 at about 4 p.m., PW-1 Rajlaxmi was on duty at the police headquarters. The accused came to her and asked her as to why she had not disclosed to him that his leave order was received from the S.P. office long back. She told that she had not met him and therefore, the order could not be given to him. Then the accused started abusing her and also threatened to kill her. Other staff members, who were present, advised the accused no to abuse and to accept the letter about leave from PW-1 Rajlaxmi. However, the accused slapped her on the left cheek. He had also pulled the end of her saree from behind and torn her blouse. Due to this, she suffered injury on her shoulder. On the same day, PW-1 Rajlaxmi lodged a report Exhibit 12 at the Police Station. She was referred for medical examination. Statement of several witnesses were recorded. After investigation, police filed the charge-sheet against the accused for different offences. 4. Vide Exhibit 8 charges were framed against the accused for the offences under Sections 353, 332, 509,504, 506 Part II of IPC. He pleaded not guilty. According to him, he was falsely implicated in this case. He pleaded that he was in fact on escort duty with a Minister on 28.12.1988 and he had not been to the office nor any such incident had occurred. He only objected to the delay in communication of the leave order to him. 4 Cri-Appeal-582-92-&-Ors..sxw 5. On behalf of prosecution, in all seven witnesses were examined. Several documents were placed on record. The accused did not produce any document nor he led any oral evidence to establish that he was on escort duty with the Minister at the relevant time and thus, there is no evidence to prove his plea of alibi. 6. There is no dispute that PW-1 Rajlaxmi is a lady police constable and was posted at the police headquarters. It was her duty to receive the orders, letters, communication in the office and then to communicate same to the concerned staff members. This duty is called "Barnishi" in Marathi. Evidence of PW-1 Rajlaxmi shows that on 28.12.1988, she was on duty. About 2 days before that date, she had received a letter from the S.P. office granting leave to the accused. It was to be delivered to the accused. As per her evidence, on 28.12.1988, at about 4 p.m., the accused came to the office and began to abuse her calling her `Rande', `Bhosade' etc. and also threatened her as to meet him outside and he would kill her. She asked him to collect the letter required from the S.P. office and sign it. Other staff members also advised him not to abuse, but the accused did not listen anybody and slapped on left cheek of PW-1 Rajlaxmi. According to her, the accused had also pulled the end of her saree from behind 5 Cri-Appeal-582-92-&-Ors..sxw and torn her blouse. At that time, she was sitting on the chair. She deposed that with the pin of her blouse, she had suffered injury on the left shoulder due to pulling of the blouse by the accused. PW-2 Mina , who was a cashier in the office, PW-3 Faskuwal Ferao who was a Writer Head Constable and PW-4 Sahadeo Tambe, who was also Police Constable on duty at the Police headquarters, supported the prosecution case on material aspects. 7. It appears that these witnesses quoted different abuses which were allegedly uttered by the accused. According to PW-1 Rajlaxmi, the accused had abused her by calling `Rande', `Bhosade'. PW-2 Mina stated that the accused had abused her by saying `Randechya' `Bhosadechya'. PW-3 Faskuwal Ferao stated that the words uttered by the accused were `Rande', `Baik Zavarya', `Bodakya' and PW-4 Sahadeo initially stated that accused was abusing PW-1 `Rande', `Bhosade'. In the cross-examination, he admitted that in the police statementt he had stated that the words were `Randechya' `Bhosadechya'. He also admitted in the cross-examination that these abuses are generally uttered against a male person and not a female person in Marathi language. It is proved that the abuses stated by PW-3 Faskuwal were not stated by him in the police statement. In view of the different words used by different witnesses, the trial Court came to conclusion that the evidence about abusing is not consistent and therefore it cannot be said 6 Cri-Appeal-582-92-&-Ors..sxw that the accused had committed the offence punishable under Sections 504 or 509 of IPC. PW-2, PW-3 and PW-4 did not state that the accused had threatened to kill PW-1 Rajlaxmi, though she deposed like that. Thus, her evidence abut threats is not corroborated y the other three witnesses. Therefore, the trial Court acquitted the accused for the offence punishable under Section 506 Part II of IPC. In view of the nature of evidence, I find no fault in acquittal of the accused for the offences punishable under Sections 504, 506 Part II and 509 of IPC. 8. All the four witnesses consistently deposed that the accused had slapped Rajlaxmi. They also tried to state that the accused had pulled end of her saree and the blouse. According to PW-1 Rajlaxmi, at that time, because of the pin of the blouse, she suffered injury on the left shoulder. It is material to note that PW-4 Sahadeo stated that scuffle had taken place between the two, though in the cross-examination, it was brought on record that he had not stated before the police about scuffle. It appears that there must have been exchange of hot words and accused must have slapped Rajlaxmi and therefore, it resulted into scuffle and possibly during the scuffle her blouse was slightly torn. As per the panchnama, the blouse was torn by about 1" from the backside at the neck portion. Taking into consideration the circumstances in which the incident occurred, it is difficult to believe that the intention of the accused was to outrage modesty of Rajlaxmi being 7 Cri-Appeal-582-92-&-Ors..sxw a woman and therefore, he must not have pulled saree or blouse with that intention. As per the evidence of PW-5 Dr. Ajay Swar, who had examined Rajlaxmi, she had suffered contusion over left scapular 4 cm x 6 cm. It could be caused by hard and blunt object. The accused had not assaulted with any hard or blunt object to Rajlaxmi. According to her, she suffered injuries with the pin of the blouse. The said pin was not seized by the Investigating Officer. It is difficult to understand how with the pin of the blouse contusion of the size of 4 cm x 6 cm could be caused. In my opinion, even if that injury was caused, the accused had not intended to cause that injury but the act of slapping itself amount to causing hurt. As PW-1 was on duty as a Constable in the office and the accused slapped her, it amounts to causing hurt to a public servant in the discharge of her duty and therefore, the accused is liable to be convicted for the offence punishable under Section 332 of IPC. The offence under Section 332 of IPC is serious ofence in comparison to the offence under Section 353 of IPC which is committed when a person assaults or uses criminal force to a public servant in discharge of duty. Under Section 351, whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture is about to use criminal force is said to commit assault. Thus, assault is only making a gesture or preparation which creates apprehension in the mind. A person 8 Cri-Appeal-582-92-&-Ors..sxw is said to use force to another if he causes motion, change of motion, or cessation of motion by his own bodily power or by disposing any substance or by inducing any animal. When force is used with the intension is to cause injury, fear or annoyance, it is called criminal force. Thus, assault and criminal force are lesser ofence then causing hurt when by using force hurt is caused to a public servant in discharge of duty, the offence under Sec. 332 of IPC is committed. Therefore, there will be no reason to convict the same person for the offence under Section 353 of IPC also. Therefore, in my opinion, conviction under Section 353 of IPC cannot stand. In view of the above circumstances, the accused is liable to be convicted under Section 332 of IPC only. 9. The accused was aged about 39 years when this incident occurred in 1988, and now he is a senior citizen aged about 61 years. He has already retired from service. The learned Counsel for the accused contends that he is suffering from several ailments because of the old age. He had no previous enmity with PW-1 Rajlaxmi. He was annoyed with her because she had failed to communicate his leave order inspite of having received about 2 or 3 days prior to the incident. Because of this, he lost his temper and slapped her. It appears that the accused was keenly waiting for orders for the sanction of his leave. PW-1 Rajlaxmi was expected to communicate the orders immediately to the staff members. According 9 Cri-Appeal-582-92-&-Ors..sxw to her own admission, about 2 days before 28.12.1988 she had received letter from the S.P.Office about leave of the accused and it was lying with her for delivery to him. Exact date of receipt of the letter by her is not on record. On this line, no investigation appears to have been made nor the copy of that order was seized. According to PW-3 faskuwal, PW-1 Rajlaxmi had received that order 2 or 3 days prior to the incident. It appears that PW-1 Rajlaxmi inspite of having received that letter about sanction of leave of the accused, she had not communicated that order to him for about 2 or 3 days and because of that, he was very much annoyed. Generally, personnel in arm forces get leave with great difficulty. The accused was an armed constable. He was waiting for the orders of leave keenly and naturally he was annoyed when the concerned clerk PW-1 Rajlaxmi did not communicate the order to him for about 2 or 3 days inspite of having received that order. Because of this, he started abusing her and also slapped her. Though this act cannot be commended and it was highly improper on his part to assault or slap a lady constable on duty, still this spect needs to be considered for the purpose of punishment. In view of these circumstances, in my opinion, no purpose will be served by sending him to jail at this age. 10. For the aforesaid reasons, the following order is passed :- 10Cri-Appeal-582-92-&-Ors..sxw (1) The Appeal No.582 of 1992 and Appeal No.583 of 1992 filed by the State stand dismissed. (2) Appeal No.728 of 2005 filed by the accused is partly allowed. The conviction and sentence for the offence punishable under Section 353 of IPC is set aside and the accused is acquitted of that charge. The conviction for the offence under Section 332 of IPC is maintained. However, he is sentenced to pay fine of Rs.5,000/- and in default to pay fine, he shall undergo simple imprisonment for three months. He shall deposit the fine amount within two months from this day before the trial Court. If any fine amount is already deposited,that shall be adjusted in the fine amount now imposed. (J.H.BHATIA,J.)