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Bashir Beg Abkar Beg vs The State Of Mah.Thr.Pso Amravati on 15 February, 2018

1 apeal53 of 2006

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.53
OF 2006

Bashir Beg s/o. Akbar Beg,
aged 23 years,
occupation : agriculturist,
r/o. Mozari, Tahsil Tivsa,
District Amravati. …. APPELLANT

VERSUS

State of Maharashtra,
through PSO Kalamna, Tivsa
District Amravati …. R ESPONDENT

Shri A.S. Mardikar, senior counsel for the appellant,
Shri. V. P. Maldhure, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO
, J.

DATE OF DECISION: 15 -02

-2018

ORAL JUDGMENT :

Challenge is to the judgment and order dated 29.12.2005

rendered by the 2nd Adhoc Additional Sessions Judge, Amravati, in

Special Case 2 of 2005, by and under which, the appellant – accused is

convicted for offence punishable under section 452 of the Indian Penal

Code (“IPC”) and is sentenced to suffer rigorous imprisonment for one

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2 apeal53 of 2006

year and to payment of fine of Rs. 500/- and is further convicted for

offence punishable under section 354 of the IPC and is sentenced to

suffer rigorous imprisonment for one year and to payment of fine of

Rs. 500/-.

2 Heard Shri Anil Mardikar, the learned senior counsel for

the accused and Shri V.P. Maldhure, the learned Addl. Public Prosecutor

for the respondent / State.

3 The genesis of the prosecution lies in oral report lodged by

the prosecutrix (PW 1) at Police Station Tivsa on 25.6.2004 at 8.45

a.m., alleging that on 24.6.2004 at 1.00 p.m. the accused entered her

house and outraged her modesty. The prosecutrix, who then was aged

14 years states that she resided with her father. Her mother and two

younger brothers reside separately due to a matrimonial dispute

between her mother and father. She was sleeping in the house after

having meals and her father had gone to graze cows. She felt some

weight on her person, opened her eyes and saw the accused lying on

her person. The accused was holding her by shoulders. She shouted,

the accused did not get up from her person, on hearing her shouts, her

paternal uncle’s wife who is a neighbour arrived at the scene.

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3 apeal53 of 2006

The accused was pulled away by her aunt by the collar. The accused

fled and was seen by Mandabai Ghorpade and Sunandabai Khadsare

fleeing. Her father returned home in the evening, the prosecutrix

disclosed the incident to her father and the next day morning the

report was lodged.

4 The printed First Information Report is Exh. 11 on the

record of the trial court. On the basis of the report offence punishable

under section 452 and 354 of the IPC was registered against the

accused. Subsequently, the accused was also charged under section

3(1)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of

Atrocities) Act (Atrocities Act). Investigation ensued, upon completion

of which, charge sheet was submitted in the Court of Judicial

Magistrate First Class, Chandur Railway, who committed the case to the

Sessions Court. The learned Sessions Judge framed charge (Exh 2)

under section 354, 452 of the IPC and under section 3(1)(xi) of the

Atrocities Act. The accused abjured guilt and claimed to be tried.

The defence is of total denial and false implication. In response to

question 24 in statement recorded under section 313 of the Code of

Criminal Procedure, the accused states thus:

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4 apeal53 of 2006

“Question 24 : Why the prosecution witnesses are deposing
against You?

Answer : I use to sell vegetables. Rs. 144/- was due towards
Padmabai as she purchased vegetable on credit. I made
demand of Rs. 144/- to her. She refused to give the same. I
use to go at the house of Prakash Nagle. There was disputed
terms between Padmabai and Prakash. Hence she lodged false
report through Savita and deposing false”.

The accused examined DW 1 Prakash Nagale in defence.

5 The learned senior counsel Shri Anil Mardikar submits that

the delay in lodging the First Information Report is destructive of the

credibility of the prosecution case. Sunandabai and Mandabai, who

according to the prosecutrix saw the accused fleeing, were not

examined. The failure of the prosecution to examine material witnesses

casts a shadow of doubt on the reliability of the evidence of the

prosecution witnesses, is the submission. The defence of false

implication, is more than probabilized on the touchstone of

preponderance of probabilities, is the further submission.

Per contra, the learned Additional Public Prosecutor

Shri V.P. Maldhure submit that the defence that some amount was due

and payable by PW 2 Padmabai to the accused and the resultant

dispute is the cause of false implication, is not even put to the

prosecution witnesses. The defence, as is discernible from the

cross-examination of the prosecution witnesses that PW 1 and PW 2

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5 apeal53 of 2006

were not on good terms with DW 1 Prakash and the accused is falsely

implicated since he used to frequent the house of Prakash, is highly

improbable, is the submission. The evidence of PW 1 and PW 2 is

implicitly reliable and the non examination of Sunandabai and

Mandabai does not dent the credibility of the prosecution case, is the

submission. The learned APP would submit that in the final analysis,

the evidence must be weighed and not counted. The prosecution has

established the offence beyond reasonable doubt, is the submission.

6 The two material witnesses from the perspective of the

prosecution are PW 1 and PW 2 Padmabai. The deposition of PW 1

broadly consistent with the contents of the First Information Report.

The only omission, which is of a little significance, brought on record is

that PW 1 did not state before the police that there was possibility of

rape, if PW 2 Padmabai would not have arrived at the scene.

The testimony of PW 1 is reliable, trustworthy and confidence

inspiring, and is not shaken in the cross-examination. The suggestion

given to PW 1 in the cross-examination is that PW 1 falsely implicated

the accused as he used to frequent the house of Prakash Nagale.

The suggestion is given in the backdrop of the admission that there are

disputed terms between the prosecutrix and Prakash Nagale. In my

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6 apeal53 of 2006

opinion, the defence, as is rightly submitted by the learned APP, is not

probabilized even on the touchstone of preponderance of probabilities.

It is inconceivable why the accused would be falsely implicated by the

prosecutrix only because he frequented the house of DW 1 Prakash

with whom the prosecutrix did not have cordial relations. Indeed, it is

the defence which has brought out in the cross-examination of PW 1

Padmabai that accused was only one of the several youth of dubious

character (“loafer” is the word used) who frequented the house of DW

1 Prakash. The relevant portion in the cross-examination of PW 2

Padmabai reads thus:

“The house of Prakash Nagale is nearer to my house.
It is correct to say said Prakash Nagale is involved in
illegal activities. The villagers are having complaint
with him as he used to deal with Ganja. It is correct
to say that the boys of loafer nature used to gather at
his house. It is correct to say that out of that loafer
boys accused Bashir also used to stay there”.

The conscious of this Court is satisfied, that the

testimony of the prosecutrix that the accused entered her house,

held her shoulders and sat on her person is implicitly reliable.

7 The testimony of the prosecutrix is corroborated by PW 2

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7 apeal53 of 2006

Padmabai. She has deposed that she heard the prosecutrix shouting and

went to her house. The prosecutrix was weeping and the accused was

sitting on her person. She caught hold of the collar of the accused and

pulled him away. The accused fled. In the cross-examination, not a

single omission is brought on record much less a significant omission

tantamounting to contradiction. The cross-examination is substantially

directed at bringing on record the strained relationship between the

witness and DW 1 Prakash to buttress the defence of false implication.

8 DW 1 is Prakash Nagale. However, his evidence does not

take the case of the defence any further. He has deposed that there was

a dispute between him and PW 2 Padmabai. He states that the accused

had supported him when there was a quarrel on the issue of cattle and

the accused was threatened by PW 2 Padmabai. Be it noted, that this is

not even a suggestion given to PW 2 Padmabai. The prosecution has

elicited in the cross-examination of DW 1 that the accused was facing

prosecution under section 302 of the IPC. The presence of the accused

at the scene is brought on record in the cross-examination of DW 1.

The evidence of DW 1 is of no assistance to the defence.

9 The learned senior counsel then submits that even if the

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8 apeal53 of 2006

prosecution evidence is taken at face value, offence punishable under

section 452 of IPC is not made out. Outraging modesty would not

amount to assault, is the submission. Assault is defined in section 351

of the IPC thus:

351 – Assault – 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 or preparation is about to use
criminal force to that person, is said to commit an
assault.

Force and criminal force are defined in sections 349 and

350 of the IPC, respectively, which reads thus:

349. Force. — A person is said to use force to
another if he causes motion, change of motion, or
cessation of motion to that other, or if he causes to
any substance such motion, or change of motion,
or cessation of motion as brings that substance
into contact with any part of that other’s body, or
with anything which that other is wearing or
carrying, or with anything so situated that such
contact affects that other’s sense of feeling:
Provided that the person causing the motion, or
change of motion, or cessation of motion, causes
that motion, change of motion, or cessation of
motion in one of the three ways hereinafter
described:

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9 apeal53 of 2006

First. — By his own bodily power.

Secondly.– By disposing any substance in such a
manner that the motion or change or cessation of
motion takes place without any further act on his
part, or on the part of any other person.

Thirdly. — By inducing any animal to move, to
change its motion, or to cease to move.

350. Criminal force. — Whoever intentionally
uses force to any person, without that person’s
consent, in order to the committing of any offence,
or intending by the use of such force to cause, or
knowing it to be likely that by the use of such force
he will cause injury, fear or annoyance to the
person to whom the force is used, is said to use
criminal force to that other.

10 It is difficult to accept the submission of the learned senior

counsel that sitting on the person of a 14 year old girl and holding her

by the shoulders does not involve use of criminal force. The submission

that offence punishable under section 352 of the IPC is not made out, is

noted only for rejection.

11 The prosecution has established offence punishable under

section 452 and 354 of the IPC beyond reasonable doubt. The learned

counsel would submit that since the incident occurred more than 14

years ago and the accused was aged 22 years or thereabout, the

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10 apeal53 of 2006

sentence of one year rigorous imprisonment may be reduced. I do not

see any compelling reason to do so. The prosecutrix was aged 14 years

when her modesty was outraged. The defence has brought on record

that the accused was facing criminal prosecution under section 302 of

the IPC and was even otherwise a person of dubious character.

(i) The appeal is sans substance and is
rejected.

(ii) The bail bond of the accused shall stand
discharged and he shall be taken in
custody forthwith to serve the sentence.

(iii) The accused shall be entitled to the benefit
under section 428 of the Code of Criminal
Procedure.

(iv) Police Station Officer, Police Station Tivsa,
District Amravati is directed to file a
compliance report in the Registry of this
Court within two weeks.

JUDGE

RSB

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