Umesh Dharamdas Landge vs State Of Mah. Thr. P.S.O. Kotwali, … on 1 September, 2017

1 Judg.010917 apeal 416.03.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.

Criminal Appeal No.416 of 2003

Umesh Dharamdas Landge,
Aged about 21 years, Occ-Labour,
R/o-Antuji Nagar, Tah and Distt- Nagpur. …. Appellant.

-Versus-

State of Maharashtra
through P.S. Kotwali, Nagpur. …. Respondent.
————————————————————————————————–
Mrs. Shamsi Haider, Additional Public Prosecutor for State.
None for the appellant.
————————————————————————————————–
Coram : Mrs. Swapna Joshi, J.

st
Dated : 01
September, 2017.

ORAL JUDGMENT

This appeal has been directed against the judgment and
th
order passed by the learned 6 Ad hoc Additional Sessions Judge,

Nagpur in Sessions Trial No.558 of 2001 delivered on 13-06-2003,

whereby the learned trial Judge had convicted the accused under Section

354 of the Indian Penal Code and sentenced to suffer rigorous

imprisonment for one year and to pay a fine of Rs.2000/-, in default, to

suffer simple imprisonment for 2 months.

2] I have heard Mrs. Shamsi Haider, the learned Additional

Public Prosecutor for the State. The appellant and his counsel remained

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absent. With the assistance of the learned APP, I have gone through the

record of the case.

3] The prosecution case, in nutshell, is that :-

In the year 2001, the victim was residing with her mother at

Antuji Nagar, Police Station Kotwali, Nagpur. The father of the victim

expired about 4 to 5 months prior to the incident. At the relevant time, the
th
victim was studying in 7 standard in Jayvijar Primary School,

Bhandewadi. Her mother was doing a labour work at Kalmana Market,

Nagpur. The appellant/accused was also residing at Antuji Nagar, Nagpur.

On the date of incident i.e. on 27-06-2001, the appellant/accused came to

the house of the victim in presence of the mother of the victim. The

appellant/accused told them that his mother and sister had gone to attend

a marriage and requested the mother of the victim to wash used utensils.

At the request of the appellant/accused, the mother of the victim sent the

victim to the house of the appellant/accused for washing the used

utensils. At about 10.30 am, the victim went to the house of the

appellant/accused. When she entered inside the house of the

appellant/accused, the appellant/accused caught hold of her hands,

made her to fall down and tried to lift her skirt in upward direction. The

appellant/accused also started pressing the breast of the victim. On

this, the victim raised an alarm and gave a jerk to him. The victim

succeeded in rescuing herself from the clutches of the appellant/accused.

She rushed to her house. At that time, her mother was present in her

house. The victim disclosed the incident to her mother. The mother of

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the victim along with the victim proceeded to the house of the

appellant/accused. However, the house of the appellant/accused was

found locked and the appellant/accused was not found there. The victim

and her mother returned to their house. The mother of the victim thought

as to what is to be done in the matter and on the next day they proceeded

to the Police Station. The complaint of the victim was recorded by the

Police of Kotwali Police Station. On the basis of the said report,

Dattatraya Shinde (PW-10) registered the offence. The complaint is at

Exhibit-7. Bramha Shelke (PW-11) recorded the spot panchanama

(Exhibit-21). He carried out the further investigation in the matter. The

appellant/accused was arrested and after completion of the investigation

PW-11 submitted the charge-sheet against the appellant/accused. The

case was committed to the Court of Sessions. The learned trial Judge

framed the charge. After conducting the trial and on analysis of the

evidence, the learned trial Judge was convicted the appellant/accused as

aforesaid.

4] Mrs. Shamsi Haider, the learned A.P.P. vehemently argued

that after careful scrutiny of the testimony of Amrapali (PW-1) who was

the victim and Manda (PW-2) who was the mother of the victim, the

learned trial Judge has come to the conclusion that the appellant/accused

has committed an offence punishable under Section 354 of the IPC and

has rightly convicted the accused.

5] In order to substantiate its case, the prosecution has heavily

relied upon the testimony of victim (PW-1) and her mother (PW-2).

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Unfortunately, the witnesses to whom PW-1 disclosed the incident turned

hostile and did not support the case of the prosecution. As regards the

testimony of PW-1, it indicates that on the date of incident at about

10.00 am the victim was in her house. At that time, the appellant/accused

came to their house and asked the victim to come to his house for

washing utensils. The mother of the victim, accordingly, asked the victim

to go to the house of the appellant/accused for washing utensils.

Therefore, the victim went to the house of the appellant/accused.

Accordingly, on entering the house of the appellant/accused, she did not

find the utensils. Suddenly, the appellant/accused caught hold of her hand,

he pressed her breast, he made her to fall down and lifted up her skirt.

The victim gave a jerk to the appellant/accused and fled away from that

place. She returned to her house and disclosed the incident to her mother

who was present in the house. Thereafter, the victim along with her

mother went to the house of the appellant/accused. However, they found

the door of house of the appellant/accused was locked. On the next day,

the victim along with her mother proceeded to the Police Station and

lodged her complaint (Exhibit-27). On careful scrutiny of the testimony of

victim, it is noticed that, her testimony is not shattered in the cross

examination at all.

6] The testimony of PW-2, who is the mother of victim shows
th
that, at the time of incident, the victim was studying in 7 standard. On the

date of incident, at about 10 am, when PW-2 along with the victim was

present in the house, the appellant/accused came to their house and

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asked the victim to come to his house for washing utensils. PW-2 told the

victim to go to the house of the appellant/accused for washing utensils.

After half an hour, the victim returned to her house and she was weeping.

The victim told her mother that the appellant/accused pressed her breast,

made her to fall down and lifted her skirt. She further informed to her

mother that she gave a jerk to the appellant/accused and rescued herself

from the clutches of the appellant/accused. On hearing the incident,

PW-2 along with PW-1 went to the house of the appellant/accused.

However, they found that the house of the appellant/accused was locked,

therefore, they returned back from the house of the appellant/accused.

On the next day, they proceeded to the Police Station and the complaint of

PW-1 came to be recorded. The testimony of PW-2 was corroborated

with the testimony of PW-1 on the material aspect and has not been

shattered in the cross examination. At the relevant time, PW-10 was

attached to Police Station Kotwali. He recorded the complaint of the victim

as per her version. On the basis of it, he registered the offences under

Sections 354 and 376 of the IPC. PW-10 conducted the spot panchanama

and recorded the statements of the witnesses and on completion of

investigation, he submitted the chargesheet in the Court of Ld. JMFC.

7] On careful scrutiny of the testimony of the victim and her

mother, it is noticed that, their testimony is consistent, cogent and

trustworthy. Their testimony is not at all shattered in the cross

examination. It appears that the victim and her mother were the only

female members in their house and there is no other male member in their

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house and this must be the reason that they have not lodged the

complaint promptly on that day. In any case, the incident being sensitive

in nature and under such circumstances the victim and her mother might

not have proceeded to the Police Station to lodge the complaint

immediately, by putting their reputation at stake and they must have given

full thought over it and thereafter they proceeded to lodge the complaint

on next day. At the relevant time, the victim was aged about 10 to 12
th
years old studying in 7 standard. The mother of the victim must have

given a thought over it considering her tender age and then lodged the

complaint against the appellant/accused. It also appears from the

evidence on record that the victim and her mother were labour class

people and the appellant/accused came to the house of victim and asked

her to come to his house for washing utensils. It appears that the

appellant/accused had taken undue advantage of the fact that the victim

and her mother are the only female members in their house and they

would not raise any hue and cry if he would commit the act of outraging

the modesty of the victim. The act of the appellant/accused indicates that

he had not crossed the stage of preparation to commit rape, due to the

objection raised by the victim. In view thereof, the learned trial Judge was

only framed the charge under Section 354 of the IPC. From the evidence

on record it can be said that, the appellant/accused had tried to outrage

the modesty of the victim by doing the act of pressing her breast and lifting

her skirt.

8] It is well settled principle of law that the sole testimony of

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the victim can be relied upon, if at all it is found to be cogent, convincing

and trustworthy.

9] In the instant case, the victim being a child witness, few

questions were asked by the learned trial Judge in order to find out

whether she understands the sanctity of oath and thereafter the oath was

administered to the victim. The testimony of the victim is in consonance

with the contents of the First Information Report (Exhibit-7). Significantly,

the defence simply suggested that no such incident had occurred.

However, there was no suggestion to the victim as to what was the reason

for deposing falsely before the Court against the appellant/accused. The

testimony of the victim indicates that the appellant/accused has used

criminal force upon the victim and outraged her modesty. The evidence

on record clearly shows that on the pretext of washing the used utensils,

the appellant/accused had called the victim at his house. It indicates that

the appellant/accused had requisite intention to commit the offence of

outraging the modesty of the victim. There is cogent and convincing

evidence on record to show that the appellant/accused had committed

the offence under Section 354 of the IPC. I do not find any illegality or

perversity in the judgment and order passed by the learned trial Judge.

10] It would be advantageous to go through the judgment of the

Hon’ble apex Court in case of Premiya @ Prem Prakash v. State of

Rajasthan, reported in 2008(12) Scale, 739. The paragraphs 12 and 13

therein are reproduced below:-

“12. In order to constitute the offence under Section
354 IPC mere knowledge that the modesty of a woman

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is likely to be outraged is sufficient without any
deliberate intention of having such outrage alone for its
object. There is no abstract conception of modesty
that can apply to all cases. (See State of Punjab v.
Major Singh (AIR 1967 SC 63). A careful approach
has to be adopted by the court while dealing with a
case alleging outrage of modesty. The essential
ingredients of the offence under Section 354 IPC are
as under:

(i) that the person assaulted must be a woman;

(ii) that the accused must have used criminal force
on her; and

(iii) that the criminal force must have been used on
the woman intending thereby to outrage her
modesty.

13. Intention is not the sole criterion of the offence
punishable under Section 354 IPC, and it can be
committed by a person assaulting or using criminal
force to any woman, if he knows that by such act the
modesty of the woman is likely to be affected.
Knowledge and intention are essentially things of the
mind and cannot be demonstrated like physical
objects. The existence of intention or knowledge has
to be culled out from various circumstances in which
and upon whom the alleged offence is alleged to have
been committed. A victim of molestation and
indignation is in the same position as an injured
witness and her testimony should receive the same
weight.”

11] In my opinion, the learned trial Judge had properly

appreciated the facts brought on record by the prosecution. In view of

the fact that, the learned trial Judge has rightly appreciated the evidence

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brought on record and rightly passed the order, consequently, the appeal

fails and it is liable to be dismissed. Hence it is dismissed.

JUDGE

Deshmukh

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