SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Rajesh Swarupchand Kankaria And … vs The State Of Maharashtra on 20 March, 2017

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 2017

ORAL 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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:33 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

them, 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 of

avk 2/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:33 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

payment 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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:33 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

Pune, 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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:33 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

Accordingly, 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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:33 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

3 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

avk 6/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:33 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

persons 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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

situated. 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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

7 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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

father-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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

daughter 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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

11 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

avk 12/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

justified 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

avk 13/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

are 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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

accused 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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

Bedmutha 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

avk 16/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

petitioners 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 her

avk 17/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

husband, 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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

building 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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

accused 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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

intention 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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

essential 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

avk 22/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

then 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

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

been 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

avk 24/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

accused 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.

avk 25/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

This 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.

avk 26/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

21 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 :

avk 27/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
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

avk 28/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

otherwise 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

avk 29/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

from 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

avk 30/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

accused 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.

avk 31/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

24 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.

avk 32/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::
REVN-128-2017-APPR-126-2017-150-2017.doc

ii) 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.)

avk 33/33

::: Uploaded on - 20/03/2017 ::: Downloaded on - 21/03/2017 01:10:34 :::

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation