REVN-128-2017-APPR-126-2017-150-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.128 OF 2017
WITH
CRIMINAL APPLICATION NO.126 OF 2017
AND
CRIMINAL APPLICATION NO.150 OF 2017
IN
CRIMINAL REVISION APPLICATION NO.128 OF 2017
RAJESH SWARUPCHAND KANKARIA ORS.)…APPLICANTS
V/s.
THE STATE OF MAHARASHTRA )…RESPONDENT
Mr.Vikas Balasaheb Shivarkar, Advocate for the Applicant.
Mr.Vinod Chate, APP for the Respondent – State.
CORAM : A. M. BADAR, J.
DATE : RESERVED ON 16th MARCH 2017
PRONOUNCED ON 20th MARCH 2017ORAL JUDGMENT :
1 By this revision petition, revision petitioners / original
accused nos.1 to 3 are challenging the judgment and order dated
17th February 2017 passed by the learned Additional Sessions
Judge, Pune, in Criminal Appeal bearing no.71 of 2011 filed by
avk 1/33
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REVN-128-2017-APPR-126-2017-150-2017.docthem, so also the judgment and order passed by the learned
JMFC, Vadgaon Maval, Pune, on 29th January 2011 in Summary
Criminal Case No.575 of 2006.
2 For the sake of convenience, it is apposite to reproduce
operative portion of the judgment and order dated 29 th January
2011 passed by the learned JMFC, Vadgaon Maval, District Pune.
It reads thus :
" ORDER
1) Accused Nos.1 to 3 viz. Rajesh Swarupchand
Kankaria and Swarupchand Rupchand Kankaria, are
hereby convicted U/sec.248(2) of Cr.P.C. of the
offences punishable U/sec.354 r.w.34 of Indian
Penal Code.2) Both are sentenced to suffer 2 months rigorous
imprisonment and fine of Rs.10,000/- each. In
default of payment of fine, accused shall undergo
the rigorous imprisonment of 8 months.3) Accused No.2 Dinesh Kankaria is hereby
convicted U/sec.248(2) of Cr.P.C. of the offence
punishable U/sec.323 r.w.34 of Indian Penal Code.4) He is sentenced to suffer 2 months simple
imprisonment and fine of Rs.5,000/-. In default ofavk 2/33
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REVN-128-2017-APPR-126-2017-150-2017.docpayment of fine he shall undergo the simple
imprisonment of 8 months.5) Accused nos.1 to 3 are hereby acquitted
U/sec.248(1) of Cr.P.C. of the offences punishable
U/sec.504 and 506 r.w.34 of Indian Penal Code.6) The amount of Rs.15,000/- be given to the
complainant Sunita Bedmutha as a compensation
out of the total fine amount U/sec.357(2) of Cr.P.C.
after appeal period is over. Rest of the fine amount
be credited to government, as per rules.7) Bail bonds of all accused, stands forfeited.
8) Dictated and pronounced in open court.
9) Copy of judgment be given to accused persons
free of costs."Similarly, it is also apposite to quote the operative part of the
judgment and order passed by the learned Additional Sessions
Judge, Pune, on 17th Feb 2017 allowing the appeal filed by
revision petitioners / original accused partly. The same reads
thus:
" ORDER
1) The appeal is partly allowed.
2) The judgment and order dated 29.01.2001
passed in Summary Criminal Case No.575/2006 by
the Judicial Magistrate First Class, Vadgaon Maval,avk 3/33
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REVN-128-2017-APPR-126-2017-150-2017.docPune, stands modified as under :
i) The accused no.1 Rajesh and accused no.3
Swarupchand are convicted for the offence
punishable under section 354 read with section
34 of the IPC and sentenced to suffer two
months rigorous imprisonment and pay fine of
Rs.10,000/- each, in default they shall further
undergo to the rigorous imprisonment for eight
months.ii) The accused no.2 Dinesh is convicted for the
offence punishable under section 323 of the IPC
and sentenced to suffer simple imprisonment for
two months and pay fine of Rs.1000/-, in default
to suffer simple imprisonment for eight months.iii) The sum of Rs.15000/- out of the aforesaid
fine amount, on realization, be paid to the
informant Sunita towards the compensation as
per section sub section (1) (b) of section 357 of
the Code of Criminal Procedure and the
remaining fine amount be credited to the State.iv) Excess fine amount Rs.4000/-, if paid be
refunded to accused no.2 Dinesh Kankaria.3) Since the appellants/accused are present for
hearing the judgment, they are directed to
surrender themselves to receive the sentence.avk 4/33
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REVN-128-2017-APPR-126-2017-150-2017.docAccordingly, conviction warrant be prepared and
issued.4) Copy of judgment be given to the appellant
forthwith."It is, thus, clear that so far as the offence punishable under
Section 354 read with Section 34 of the IPC is concerned,
conviction and sentence imposed on revision petitioner nos.1 and
3 / original accused nos.1 and 3 came to be confirmed by the
appellate court. Fine imposed on revision petitioner no.2 /
original accused no.2 for the offence punishable under Section
323 of the IPC came to be reduced from Rs.5,000/- to Rs.1,000/-,
maintaining the substantive sentence of imprisonment and by
holding him guilty of the offence punishable under Section 323 of
the IPC. It is, thus, clear that revision petitioner nos.1 to 3 /
original accused nos.1 to 3 are taking exception to their conviction
for offence punishable under Section 354 read with Section 34 of
the IPC and under Section 323 of the IPC and resultant sentence
imposed on them. For the sake of convenience, revision
petitioners shall be referred to in their original capacity while
deciding the instant revision petition.
avk 5/33
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REVN-128-2017-APPR-126-2017-150-2017.doc3 Briefly stated, it is the case of the prosecution that first
informant / PW1 Sunita Nandkishore Bedmutha is residing with
her husband PW5 Nandkishore Bedmutha at Bhangarwadi area of
Lonavla in Pune District. Her husband Nandkishore Bedmutha
runs a grocery shop at Indrayani Nagar of Lonavla. Kundanmal
Bedmutha - father-in-law of PW1 Sunita Bedmutha resides at the
first floor of two storeyed building situated near Jain Mandir, at
Gaothan of Lonavla. It is the case of the prosecution that as
Kundanmal - father-in-law of PW1 Sunita was residing separately
from her, either PW1 Sunita or her husband PW5 Nandkishore
used to reach the tiffin to him by visiting his house at Gaothan
area of Lonavla. The alleged incident happened at the ground
floor of the property, which is standing in the name of Kundanmal
Bedmutha.
4 It is the case of prosecution that on 22nd March 2006,
at about 12 noon, PW1 Sunita had been to this building where her
father-in-law Kundanmal Bedmutha used to reside. Accused
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REVN-128-2017-APPR-126-2017-150-2017.docpersons are stated to be in possession of the ground floor of that
building owned by Kundanmal Budmutha and they were having
godown / shop at the ground floor of the said building. PW1
Sunita noticed that Varsha-daughter of accused no.3
Swarupchand Kankaria, at the upper floor of the building. Hence,
PW1 Sunita came at the ground floor of that building, met
accused no.3 Swarupchand Kankaria in his shop at the ground
floor and questioned him as to why his family members are going
upstairs despite warning to them not to go at upper floors of the
said building. Upon that, accused no.3 Swarupchand Kankaria is
stated to have asked informant PW1 Sunita to refund the amount
given to her father-in-law Kundanmal Bedmutha. At that time,
sons of accused no.3 Swarupchand Kankaria namely, accused no.1
Rajesh Kankaria and accused no.2 Dinesh Kankarai rushed out of
the shop. Hence, informant PW1 Sunita went to the grocery shop
of her husband PW5 Nandkishore located at Indrayani Nagar,
Lonavla, and informed this incident to him. She, then, came back
with her husband PW5 Nandkishore to the said building at the
ground floor of which, shop / godown of accused persons was
avk 7/33
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REVN-128-2017-APPR-126-2017-150-2017.docsituated. At that time, according to the prosecution case, accused
no.1 Rajesh Kankaria pulled informant PW1 Sunita by holding her
left hand. Accused no.3 Swarupchand Kankaria caught hold of
corner of her saree and pulled it causing her fall. He gave abuses
to her. Accused no.2 Dinesh Kankaria assaulted her husband PW5
Nandkishore, when he attempted to pacify the quarrel.
5 Aggrieved PW1 Sunita then went to Police Station
Lonavla City and lodged report Exhibit 36 which has resulted in
registration of Crime No.35 of 2006 for offences punishable under
Sections 354, 324, 504 and 506 of the IPC against accused
persons.
6 Informant PW1 Sunita and her husband PW5
Nandkishore were then referred to hospital for their treatment.
Routine investigation followed and ultimately they came to be
charge-sheeted for offences punishable under Sections 354, 324,
504 and 506 of the IPC.
avk 8/33
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REVN-128-2017-APPR-126-2017-150-2017.doc7 After framing charges, the learned trial Magistrate
convicted and sentenced them as indicated in the opening
paragraph of this judgment and in appeal with minor
modification, the conviction as well as sentence came to be
confirmed, as reflected from the opening paragraph of the
judgment.
8 I have heard Shri Vikas Shivarkar, the learned
advocate appearing for revision petitioners / original accused. By
taking me through the evidence of PW1 Sunita and PW5
Nandkishore, the learned advocate argued that case of the
prosecution is totally improbable as no father would outrage
modesty of a woman in presence of his one son with the assistance
of another son. The learned advocate pointed out inconsistencies
in evidence of PW1 Sunita and PW5 Nandkishore regarding the
manner in which the alleged incident started. He further argued
that alleged incident is divided in two parts and in the first part of
the incident, PW1 Sunita was all alone in the building of her
avk 9/33
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REVN-128-2017-APPR-126-2017-150-2017.docfather-in-law Kundanmal Bedmutha. If really accused persons
intended to outrage her modesty, they were having ample time to
do so at the first opportunity itself. The learned advocate further
argued that because of previous enmity between the prosecuting
party and the accused persons which is established from the
evidence on record, evidence of both these witnesses is totally
unreliable. He further argued that evidence of alleged eye witness
PW3 Ganpat Shelawane is rightly disbelieved by the courts below
as he has stated time of the incident as 2.00 p.m. It is further
argued by the learned advocate for the revision petitioners that
evidence of PW6 Rajendra Pawar, A.S.I., shows that this
Investigating Officer has not recorded statement of PW5
Nandkishore under Section 161 of the Code of Criminal Procedure
(Cr.P.C.) and therefore, it cannot be said that PW5 Nandkishore
was an eye witness to the incident in question. It is further argued
by the learned advocate that cross-examination of PW6 Rajendra
Pawar, Investigating Officer, shows that in respect of the same
incident, there was a counter report by Varsha - sister of accused
no.1 Rajesh Kankaria as well as accused no.2 Dinesh Kankaria and
avk 10/33
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REVN-128-2017-APPR-126-2017-150-2017.docdaughter of accused no.3 Swarupchand Kankaria. She had even
lodged private criminal complaint and as such, it cannot be said
that offence of outraging the modesty of a woman is made out by
the prosecution. The learned advocate placed reliance on
judgment of the Hon'ble Apex Court in the matter of Pandurang
Sitaram Bhagwat vs. State of Maharashtra1 and argued that
animosity between both parties is sufficient to conclude that there
is false implication of accused persons by the prosecuting party.
9 I have also heard the learned APP who argued that
both courts below rightly came to the conclusion that alleged
offences are proved against accused persons.
10 With the assistance of the learned advocate for the
revision petitioners / original accused, I have gone through the
record and proceedings including evidence of witnesses examined
by the prosecution. I have carefully considered the rival
submissions.
1 (2005) 9 Supreme Court Cases 44
avk 11/33
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REVN-128-2017-APPR-126-2017-150-2017.doc11 At the outset, it needs to be mentioned here that
revision petitioners / accused persons are invoking revisional
jurisdiction of this court for challenging the judgment and order
passed by the appellate court which concurred with the finding
recorded by the learned trial court that accused no.1 Rajesh
Kankaria and accused no.3 Swarupchand Kankaria in furtherance
of their common intention, outraged the modesty of PW1 Sunita
and that accused no.2 Dinesh Kankaria had voluntarily caused
hurt to PW5 Nandkishore. It is well settled that revisional
jurisdiction is to be exercised sparingly and in exceptional cases
when it is shown that there is manifest error on the point of law
which has resulted in miscarriage of justice or there is glaring
defect of procedure. The revisional court cannot re-appreciate
evidence and cannot function as an appellate court. If finding of
fact is supported by some evidence on record, then the same
cannot be interfered with, but when the court below comes to a
conclusion which no reasonable man of ordinary prudence could
have arrived at on the basis of the evidence on record, or in other
words, when the finding is perverse, then the revisional court is
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REVN-128-2017-APPR-126-2017-150-2017.docjustified in interfering with the impugned judgment and order.
Keeping in mind these limitations for exercising revisional
jurisdiction by this court, let us examine the case in hand.
12 Undisputedly, revision petitioners / accused persons
are having their shop / godown at the ground floor of the building
in which Kundanmal Bedmutha - father-in-law of informant PW1
Sunita resides. Even her FIR Exhibit 36 shows that she had been
to this shop of accused persons to question presence of Varsha at
the upper floor of the building of her father-in-law. Undisputedly,
informant PW1 Sunita and her husband PW5 Nandkishore were
living separately from Kundanmal Bedmutha. The prosecution
case as reflected from the FIR at Exhibit 36 lodged by PW1 Sunita
indicates that the prosecuting party was not having harmonious or
cordial relations with accused persons. On this backdrop, it is in
evidence of PW1 Sunita that when she had been to the building of
her father-in-law at about 12 noon of 22 nd March 2006, she saw
Varsha coming down from the staircase and therefore she
questioned accused no.3 Swarupchand Kankaria as to why they
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REVN-128-2017-APPR-126-2017-150-2017.docare using staircase and first floor of the building. Thereafter, PW1
Sunita went to call her husband PW5 Nandkishore and returned
on the spot in a short while. PW5 Nandkishore has also vouched
this fact. Thereafter, according to version of PW1 Sunita all
accused persons rushed towards them. Then, accused no.1 Rajesh
Kankaria twisted her hand and caused her fall on the ground. She
deposed that accused no.3 Swarupchand Kankaria caught hold of
her saree and outraged her modesty, whereas accused no.2 Dinesh
Kankaria assaulted her husband PW5 Nandkishore. As against
this, PW5 Nandkishore has stated that when he along with his
wife PW1 Sunita reached the spot of the incident, his wife went to
accused persons for having talks with them and at that time, the
incident as stated by his wife PW1 Sunita had happened. The FIR
lodged with promptitude contains the version of PW1 Sunita that
when her husband PW5 Nandkishore was pacifying the quarrel,
accused no.2 Dinesh Kankaria assaulted him. Neither PW1
Sunita nor PW5 Nandkishore have stated that either accused no.1
Rajesh Kankaria or accused no.3 Swarupchand Kankaria had
beaten PW1 Sunita. Rather, PW5 Nandkishore has stated that
avk 14/33
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REVN-128-2017-APPR-126-2017-150-2017.docaccused no.1 Rajesh Kankaria caught hold of hand of PW1 Sunita
and accused no.3 Swarupchand Kankaria caught hold of corner of
her saree. He has not stated that accused no.1 Rajesh Kankaria
twisted hand of PW1 Sunita. This evidence unerringly points out
that quarrel ensued between the parties during which incident as
alleged took place. The quarrel came to be initiated at the behest
of PW1 Sunita who questioned accused no.3 Swarupchand
initially and later on returned on the spot with her husband PW5
Nandkishore.
13 On this backdrop, cross-examination of PW1 Sunita
shows that there were various disputes between members of her
family and accused persons over enjoyment of the staircase of the
property where the incident in question occurred. She went on to
deny the fact that accused persons are running grocery shop at the
ground floor of the building where the incident took place though
her FIR itself reveals that accused persons are having shop at the
ground floor of that building. She denied that the said building is
leased out to accused persons by her father-in-law Kundanmal
avk 15/33
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REVN-128-2017-APPR-126-2017-150-2017.docBedmutha for lease amount of Rs.5 Lakh but accepted the fact
that accused no.3 Swarupchand Kankaria proposed that the leased
amount paid by him to Kundanmal be returned to him. In similar
way, it is seen from the cross-examination of her husband PW5
Nandkishore that he had filed civil suit against his father
Kundanmal Bedmutha as well as his brothers and sister in respect
of the building where the incident in question had happened. He
admitted that in the plaint he has pleaded that his brother had let
out the ground floor of the building and godown of accused
persons is situated on the ground floor of the building which is in
the name of his father Kundanmal Bedmutha. PW5 Nandkishore
candidly accepted the fact that there is dispute between them and
accused persons in respect of use of first and second floor of that
building.
In the wake of first statement of PW1 Sunita where
she has denied that the accused no.1 was running grocery shop at
the ground floor of the building where the incident took place,
despite recitals in her FIR that accused persons were having shop
at ground floor of the building, the learned advocate for revision
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REVN-128-2017-APPR-126-2017-150-2017.docpetitioners pressed in service paragraph 20 of judgment in the
matter of Pandurang Sitaram Bhagwat (supra) which reads
thus :
"20. We are not oblivious that the doctrine
'falsus in uno, falsus in omnibus' is not applicable in
India but the evidence led by the parties must be
appreciated keeping in view the entirety of the
situation. The Trial Judge, as noticed hereinbefore,
came to the conclusion that most of the statements
made by PW-2 and PW-3 were incorrect and no
reliance could be placed thereon. The statements of
the said witnesses with regard to commission of an
offence by the appellant under Section 354 IPC
should have been considered keeping in view the
extent of falsity in their statements. PW-2 and PW-3
not only failed to substantiate the allegations as
regards commission of offences under Sections 323,
504, 506 read with Section 34 IPC but also
implicated the three persons falsely. The statements
of the said witnesses should have been accepted
with a pinch of salt and keeping in view the
admitted animosity between the parties. The
background of the case vis-a-vis continuous
animosity between the complainant and heravk 17/33
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REVN-128-2017-APPR-126-2017-150-2017.dochusband, on the one hand, as also the appellant and
his other tenants could not have been lost sight of
by the learned Trial Judge."In view of extent of falsity of statement of PW1 Sunita and enmity
between the prosecuting party as well as accused persons,
applicability of Section 354 of the IPC will have to be considered.
14 It is, thus, clear that there was strong animosity
between the prosecuting party as well as accused persons, mainly
because of possession of accused persons over the ground floor of
the building owned by father of PW5 Nandkishore. The
prosecuting party seems to be having non-cordial relations with
even owner of the building as PW5 Nandkishor has accepted the
fact that he has filed a civil suit against his father Kundanmal -
owner of that building. Use of the staircase and upper floors of
the building by accused persons is also a cause of dispute between
them. In this factual scenario, one will have to consider how the
incident in question took place. Initially, there was a protest by
PW1 Sunita over the use of the staircase and upper floors of the
avk 18/33
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REVN-128-2017-APPR-126-2017-150-2017.docbuilding by Varsha - relative of accused persons, for which she
questioned accused no.3 Swarupchand Kankaria and then went to
seek help of her husband PW5 Nandkishore. PW1 Sunita then
immediately returned back to the place of incident with her
husband PW5 Nandkishore and then she went to talk with
accused persons when the incident in question happened. Her FIR
itself shows that the quarrel ensued, which her husband PW5
Nandkishore attempted to pacify. Apart from this eye witness
account of the incident given by PW1 Sunita and PW5
Nandkishore, the prosecution has also relied on evidence of PW3
Ganpat Shelawane - an alleged eye witness who had not even
identified accused persons and he is purely a chance witness.
15 On the basis of this evidence, coupled with the medical
evidence on record, accused no.1 Rajesh Kankaria and accused
no.3 Swarupchand Kankaria were held guilty of offence
punishable under Section 354 read with Section 34 of the IPC by
the courts below. Now let us examine whether the learned courts
below have correctly convicted accused no.1 Rajesh Kankaria and
avk 19/33
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REVN-128-2017-APPR-126-2017-150-2017.docaccused no.3 Swarupchand Kankaria of the offence punishable
under Section 354 of the IPC, or whether their conviction for these
offences suffers from error of law.
16 The offence punishable under Section 354 of the IPC is
committed when it is proved that a person assaults or uses
criminal force to a woman in two circumstances, viz. :-
a) intending to outrage her modesty; or
b) knowing it to be likely that he will thereby
outrage her modesty.For recording a conviction of the offence punishable under Section
354 of the IPC, it is not enough merely to show that accused
persons assaulted a woman. In addition thereto, it is also required
to establish either, that, accused persons were harbouring
intention to outrage the modesty of the victim who has been
assaulted by them. Thus, it is clear that to constitute an offence
under Section 354 of the IPC, an intention to outrage her modesty
must be present. The culpable intention of the accused is the crux
of the matter. Intention is certainly a mental state of a person and
as such it is difficult to procure direct evidence to prove the
avk 20/33
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REVN-128-2017-APPR-126-2017-150-2017.docintention of the accused. Therefore, in such cases, intention of the
accused is required to be inferred by appreciating direct act of
accused persons while committing the crime, so also on the basis
of assessment of total evidence in the case keeping in mind the
conduct of accused persons and all other relevant surrounding
circumstances. However, the intention is not the sole criteria of
this offence. It can also be said to have been committed by the
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.
17 In the case in hand, no inference of a criminal
intention can be drawn from acts of accused persons in the wake
of the fact that the actual incident was that of a quarrel initiated
by the alleged victim PW1 Sunita. During the course of the
quarrel between both parties incident of pulling her by holding
her hand and pulling her by catching hold of a corner of her saree
took place. PW1 Sunita was not alone at that time. Her husband
PW5 Nandkishore was with her. As culpable intention is an
avk 21/33
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REVN-128-2017-APPR-126-2017-150-2017.docessential ingredient of the offence punishable under Section 354
of the IPC; unless the same is proved, merely twisting the hand
causing fall of a woman or catching hold of a corner of her saree
during the cause of a quarrel cannot be called a deliberate act of
outraging the modesty of a female within the meaning of Section
354 of the IPC. If evidence of PW1 Sunita and PW5 Nandkishore
is seen in proper perspective, it cannot be said that accused
persons viz., accused no.1 Rajesh Kankaria and accused no.3
Swarupchand Kankaria might have fairly presumed or knew that
by their act, they are likely to outrage modesty of PW1 Sunita.
The test will be whether a reasonable man will think that the act
of accused was intended to or was known to be likely to outrage
the modesty of the woman.
18 In the instant case, though PW1 Sunita states that on
reaching the spot of the incident with her husband PW5
Nandkishore, all accused persons rushed towards them, the
evidence of PW5 Nandkishore shows that at that time, infact PW1
Sunita again went to accused persons for talking with them and
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REVN-128-2017-APPR-126-2017-150-2017.docthen the alleged incident occurred. On this backdrop, it is in
cross-examination of PW6 Rajendra Pawar, Investigating Officer,
that in respect of the same incident, Varsha Kankaria - sister of
accused no.1 Rajesh Kankaria and accused no.2 Dinesh Kankaria
and daughter of accused no.3 Swarupchand Kankaria had lodged
the report. This witness further admits that thereafter said Varsha
lodged complaint to the Senior Police Officer in respect of the
incident. It is also admitted by PW6 Rajendra Pawar, Investigating
Officer, that the said complaint was entrusted to him for inquiry
and then said Varsha also lodged a private criminal complaint with
the learned JMFC which has resulted in passing an order under
Section 156(3) of the Cr.P.C. and then investigation of the said
offence was also entrusted to him. This evidence on record as
such indicates that the alleged incident also resulted in lodging
the private criminal complaint by Varsha Kankaria - close relative
of accused persons, who herself was the cause behind the incident
as she was found to be using the first floor and staircase of the
building by PW1 Sunita leading to lodging protest by PW1 Sunita
with accused persons. It is, thus, clear that infact there must have
avk 23/33
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REVN-128-2017-APPR-126-2017-150-2017.docbeen quarrel between the prosecuting party and accused persons
over the issue of using the upper floors of the building and its
staircase. There was no previous deliberation or determination to
quarrel which is a bilateral phenomenon. If quarrel suddenly
takes place, for which both parties are more or less to be blamed,
then by no stretch of imagination it can be held that in the
resultant scuffle between the quarreling parties, accused persons
i.e. accused nos.1 and 3 either intended or were knowing it to be
likely that they will thereby outrage the modesty of PW1 Sunita.
In view of the fact that there was quarrel which preceded the
alleged incident, so far as offence punishable under Section 354 of
the IPC is concerned, accused persons - a father and son due are
certainly entitled for the benefit of doubt. Their conviction and
resultant sentence for the offence punishable under Section 354
read with Section 34 of the IPC as such is totally contrary to law
and therefore, needs to be quashed and set aside. At the same
time, evidence of PW1 Sunita and PW5 Nandkishore which is
accepted and acted upon by the learned courts below, shows that
accused no.1 Rajesh Kankaria had assaulted PW1 Sunita, whereas
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REVN-128-2017-APPR-126-2017-150-2017.docaccused no.3 Swarupchand Kankaria had applied criminal force to
her by catching hold of her saree. These acts of both accused are
certainly in furtherance of common intention harboured by them.
As such, though accused no.1 Rajesh Kankaria and accused no.3
Swarupchand Kankaria are acquitted of the charge under Section
354 of the IPC, they, however, need to be convicted and sentenced
for the offence punishable under Section 352 read with 34 of the
IPC for assaulting and using criminal force otherwise on grave
provocation to PW1 Sunita. Evidence on record does not show
any grave provocation by accused persons to PW1 Sunita. This
conviction is for the lesser offence and assault so also use of
criminal force are ingredients of the offence punishable under
Section 354 of the IPC.
19 Accused no.2 Dinesh Kankaria is convicted of the
offence punishable under Section 323 of the IPC by both courts
below. Congruous evidence of PW1 Sunita and PW5 Nandkishore
shows that PW5 Nandkishore was assaulted by accused no.2
Dinesh Kankaria by fist blows during the course of the incident.
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REVN-128-2017-APPR-126-2017-150-2017.docThis evidence of prosecuting witnesses is gaining corroboration
from the evidence of PW7 Dr.Rajendra Parmar. He noticed the
following injuries on PW5 Nandkishore which were fresh and
caused due to hard and blunt object :
1) Bleeding on left nostrils
2) Nesal septusm was deviated
3) Loose upper third tooth on left side.
4) Tenderness over upper teeth on left side,
5) Contusion over left chick, 4cms x 3 cms.
6) Black eye on left side.
7) CLW over eye 1 x ½ x
20 Concurrent finding of fact recorded by both courts
below in respect of the offence punishable under Section 323 of
the IPC against accused no.2 Dinesh Kankaria is as such duly
supported by the evidence on record and courts below have
rightly convicted accused no.2 Dinesh Kankaria of the offence
punishable under Section 323 of the IPC, as the injuries noticed
on the person of PW5 Nandkishore have certainly caused bodily
pain to him and those were attributable to independent act of
accused no.2 Dinesh Kankaria.
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REVN-128-2017-APPR-126-2017-150-2017.doc21 Now let us consider whether courts below correctly
imposed punishment for proved offences or whether they had
committed any error of law in awarding sentence to accused
persons. The appellate court by holding that offence punishable
under Section 323 of the IPC is proved against accused no.2 has
sentenced him to suffer simple imprisonment for 2 months apart
from payment of fine of Rs.1,000/-, in default to suffer simple
imprisonment for eight months. At this juncture, Section 323 of
IPC which provides for punishment for causing voluntarily hurt to
another person needs reproduction and it reads thus :
"323. Punishment for voluntarily causing hurt -
Whoever, except in the case provided for by section
334, voluntarily causes hurt, shall be punished with
imprisonment of either description for a term which
may extend to one year, or with fine which may
extend to one thousand rupees, or with both."Bare perusal of this provision makes it clear that the court is
empowered to award maximum punishment of one year with fine
which can extend to one thousand rupees or both, for this offence.
At this juncture, it is also apposite to quote provision of Section 65
of the IPC, which reads thus :
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REVN-128-2017-APPR-126-2017-150-2017.doc"65. Limit to imprisonment for non-payment
of fine, when imprisonment and fine awardable -
The term for which the Court directs the offender to
be imprisoned in default of payment of a fine shall
not exceed one-fourth of the term of imprisonment
which is the maximum fixed for the offence, if the
offence be punishable with imprisonment as well as
fine."Perusal of this provision in the IPC makes it clear that sentence in
default of payment of a fine cannot exceed 1/4 th of the maximum
term of imprisonment fixed for the offence. Therefore, award of
sentence of imprisonment for eight months in default of payment
of fine for the offence punishable under Section 323 of the IPC
certainly contravenes provision of Section 65 of the IPC and is bad
in law. Section 30 of the Code of Criminal Procedure acts as a
corollary to this section and provides that the Court of Magistrate
may award such term of imprisonment in default of payment of
fine as is authorized by law but such terms shall not, where
imprisonment has been awarded as a part of the substantive
sentence, exceed 1/4th of the term of imprisonment which the
Magistrate is competent to inflict as a punishment for the offence
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REVN-128-2017-APPR-126-2017-150-2017.docotherwise than as imprisonment in default of payment of the fine.
Thus, under Section 65 of the IPC, the imprisonment in default of
fine cannot exceed 1/4th of the maximum term of imprisonment
that can be awarded for the offence. In this case, for the offence
punishable under Section 323 of the IPC the learned Magistrate is
empowered to award maximum punishment of one (1) year
imprisonment and as such, impugned judgment and order
sentencing accused no.2 Dinesh Kankaria to suffer simple
imprisonment for eight months in default of payment of fine of
Rs.1,000/- is totally erroneous and contravenes the provision of
Section 65 of the IPC and as such, the same needs to be modified
accordingly.
22 Now question comes for sentencing accused no.1
Rajesh Kankaria and accused no.3 Swarupchand Kankaria for the
offence punishable under Section 352 read with 34 of the IPC
which is proved to have been committed by them. It is reported
by the learned advocate for the revision petitioners and as seen
from the judgment and order of the learned appellate court that
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REVN-128-2017-APPR-126-2017-150-2017.docfrom 17th February 2017, both these revision petitioners / accused
nos.1 and 3 are undergoing the sentence. As such, they have
undergone more than one month of imprisonment by now.
Section 352 of the IPC dealing with punishment for assault or
criminal force otherwise than on grave provocation prescribes for
punishment which may extend to three months, or with fine
which may extend to five hundred rupees, or with both.
Considering the circumstances in which the crime in question is
committed as well as the nature of the offence, I am of the
considered opinion that sentence undergone by revision petitioner
no.1 Rajesh Kankaria and revision petitioner no.3 Swarupchand
Kankaria i.e. original accused nos.1 and 3 uptil now would meet
the ends of justice in respect of the offence punishable under
Section 352 read with 34 of the IPC proved against them, apart
from imposition of fine of Rs.500/-, and in default directing them
to undergo further simple imprisonment for a period of one week.
23 The learned advocate for revision petitioners in the
alternative argued that if offences are held to be proved against
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REVN-128-2017-APPR-126-2017-150-2017.docaccused persons, they may be granted benefit of Probation of
Offenders Act, 1958. Nobody can claim the benefit under
Probation of Offenders Act, 1958, as a matter of right. Nature of
the offence, the character of the offender and circumstances of the
case are relevant considerations for determining whether accused
persons can be given the benefits under Section 3 or 4 of the
Probation of Offenders Act, 1958. The circumstances of the case
including the age, physical as well as mental condition of accused
persons and nature of proved offences as such are the decisive
factors which are required to be kept in mind for extending such
benefit. In the case in hand, charges of assault and use of criminal
force on a woman as well as causing hurt to her husband who
tried to intervene are proved against accused persons.
Considering the nature of proved offences and the circumstance in
which offences are committed, I am of the considered opinion that
accused persons and particularly accused no.2 Dinesh Kankaria is
not entitled for the benefit of the Probation of Offenders Act,
1958. Other accused are being released on the sentence which
they have undergone already.
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REVN-128-2017-APPR-126-2017-150-2017.doc24 In the result, the revision petition is partly allowed
with the following order :
i) The conviction and resultant sentence imposed on
revision petitioners / accused no.1 Rajesh Kankaria
and accused no.3 Swarupchand Kankaria for the
offence punishable under Section 354 read with
Section 34 of the IPC is quashed and set aside.
Instead, they are convicted of the offence punishable
under Section 352 read with 34 of the IPC and are
sentenced to suffer rigorous imprisonment which they
have already undergone apart from payment of fine of
Rs.500/- by each of them and in default of payment of
fine, they should undergo further simple
imprisonment for one month. Rest of the fine amount,
if paid by them for the offence punishable under
Section 354 read with 34 of the IPC be refunded to
them.
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REVN-128-2017-APPR-126-2017-150-2017.docii) The conviction and sentence imposed upon the
revision petitioner / accused no.2 by courts below is
maintained.
iii)Award of compensation of Rs.15,000/- out of the
realized fine amount to informant PW1 Sunita is set
aside and instead she be paid an amount of Rs.1,000/-
towards compensation out of the realized fine amount,
if any, in terms of Section 357(1)(b) of the Cr.P.C.
iv)Rest of the order passed by the learned Appellate
Court is maintained.
v) Record and proceedings be sent back to courts below.
vi)Parties to act upon the authenticated copy of this
judgment and order.
vii) In view of disposal of revision petition, pending
Criminal Application Nos.126 of 2017 and 150 of 2017
stand disposed of.
(A. M. BADAR, J.)
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