PANDURANG SITARAM BHAGWATversusSTATE OF MAHARASHTRA

A                      PANDURANG SITARAM BHAGWAT
                                    v.
                          STATE OF MAHARASHTRA

                             DECEMBER, 17, 2004

B
                 [N. SANTOSH HEGDE AND S.B. SINHA, JJ.]

         Penal Code, I 860; Ss. 323, 354, 504, 506 rlw Section 34

         Landlord and three others allegedly assaulted tenant and outraged
C   the modesty of his wife-Trial Court found the landlord guilty, convicted
    and sentenced him but acquitted other accused persons-Affirmed by the
    Appellate Court and High Court-On appeal, Held : No independent witness
    examined and witnesses named in the Panchnama declared hostile-Exact
    place of occurrence and the manner of commission of the offence materially
D   differ-Since Trial Court observed that most of the statements made by the
    prosecution witnesses as incorrect and unreliable, statements should have
    been examined with regard to commission of the offence keeping in view
    the extent of falsity therein-Observations made by the Appellate Court
    based on surmises and conjectures-In the facts and circumstances of the
    case, accused entitled to benefit of doubt-Thus, impugned judgment set
E   aside-Code of Criminal Procedure, 1973-Section 397.

         Revisional Jurisdiction of the High Court-Exercise of-Held : Could
    be exercised since correctness, legality or propriety of the findings of the
    Courts below fall for consideration as all the three accomplices who have
F   shared common intention except the main accused acquitted by the Court.

         Doctrines :

         Doctrine 'falsus m uno, falsus in omnibus'-Applicability of

G        Complainant is wife of one of the tenants of the Appellant, the
    landlord. The complainant alleged that the appellant along with three
    other accomplices entered into her room forcibly and outraged her
    modesty, when she was watching a movie on T.V. along with her two
    sons, and later her husband was also assaulted by the accused persons.
H   On the basis of First Information Report lodged by the complainant,
                                        1046
                          P. S. BHAGWAT v. STATE                         1047

    appellant and three other accused persons faced trial for committing          A
    offences punishable under Sections 323, 354, 504, 506 r/w Section 34
    IPC. Trial Court acquitted all the accused persons except the appellant
    and convicted him or committing the offence of outraging modesty of
    the complainant (PW2) and sentenced him accordingly. Appellate co.urt
    dismissed the ·appeal and Revision petition was dismissed by the High         B
    Court. Hence the appeal.

         It was contended by the appellant that the High Court failed to
    consider the merit of the case; and that he was falsely implicated.

         Allowing the appeal, the Court                                           c
          HELD : 1.1. The strained relationship between the parties is not
    in dispute. If the contention of the complainant and her husband to the
    effect that they had already taken a decision to shift from the premises
    is believed, there does not appear to be a plausible reason as to why the     D
    Appellant and three other accused would trespass into the house and
    assault them. No independent witness has been examined by the Trial
    Court and the witnesses of the Panchnama have been declared hostile.
    The approach of the Trial Judge that ordinarily a lady would not "put
    her character at stake" may not be wrong but cannot be applied uni-
    versally. Each case has to be determined on the touchstone of the factual     E
    matrix thereof. [1051-H, 1052-A-B-C]

         1.2. In the instant case, allegation of house trespass was made but no
    specific charge in relation thereto was made. Charges for causing hurt,
    along with other charges were specifically disbelieved. The charges of        F
    making false allegations by the victim at the instance of her husband, the
    tenant who is working in the Police Department cannot be totally brushed
    aside. No case was also made out that the incident of threatening, abusing
    or beating took place outside the house of the Appellant. (1052-E, F]

         1.3. Though the doctrine 'falsus in uno, falsus in omnibus' is not       G
    applicable in India but the evidence led by the parties must be appre-
    ciated keeping in view the entirety of the situation. The trial Judge came
    to the conclusion that most of the statements made by PW-2 the com-
J
    plainant and PW-3 her son were incorrect and no reliance could be
    placed thereon. The statements of these witnesses with regard to com-         H
    1048                 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   mission of an offence by the Appellant under Section 354 IPC should
    have been considered keeping in view the extent of falsity in their
    statements. The statement of these 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
B   between the complainant and her husband, on the one hand, as also and
    the Appellant and his other tenants could not have been lost sight of by
    the Trial Judge. [1052-G-H; 1053-A-B)

         1.4. The exact place of occurrence and the manner in which the
C   purported offence of outraging the modesty was committed by the
    Appellant materially differ. The observations made by the appellate
    court is based on surmises and conjectures. The discrepancy even if
    ordinarily could not have been the basis of passing a judgment of
    acquittal, but in this case the conduct of both PW-2 and PW-3 being
    suspect, it would not be safe to rely on a part of their statements as
D   prosecution witnesses. [1053-C-D]

         3. The High Court should not have refused to exercise its revisional
    jurisdiction on the ground that no question of Jaw had arisen therein
    inasmuch as in terms of Section 397 of the Code of Criminal Procedure,
E   the correctness, legality or propriety or any finding, sentence or order
    may fall for consideration of the Revisional Court and in particular
    having regard to the fact that the prosecution case slaould have been
    tested from the angle that the Trial Judge had acquitted all the three
    accused persons who have shared a common intention with the Appel-
    lant not only in relation to the offences under Sections 323, 504 and 506
F   IPC but also in relation to the offence committed by the Appellant under
    Section 354. Having regard to the totality of the facts and circumstances
    of the case, the Appellant is entitled to be given the benefit of doubt.
    Hence, the impugned judgment is set aside and the Appellant is dis-
    charged from the bail bond. (1053-t:-F-G)
G
        CRIMINAL APPELLATE JURISDICTION                Criminal Appeal No.
    1513 of 2004.

           Fro~ the Judgment and Order dated 27 .1.2004 of the Bombay High
H   Court in Crl.R. Application No. 219 of 1996.
                P. S. BHAGWAT v. ST ATE [SINHA, J.]                    1049

    Shivaji M. Jadhav, Himanshu Gupta and Brij Kishore Shah for the            A
Appellant.

     Mukesh K. Giri and Ravindra Keshavrao Adsure for the Respondent.

     The Judgment of the Court was delivered by
                                                                               B
     S.B. SINHA, J : Leave granted.

     This appeal is directed against the judgment and order dated 27.01.2004
passed by the High Court of Bombay in Criminal Revision Application No,
219 of 1996, whereby and whereunder the revision application filed by the      C
Appellant herein was dismissed ex parte.

       The Appellant herein is a Constable in the State Reserve Police. He.
was charged for alleged commission of an offence punishable under Sec-
tions 354, 323, 504, 506 read with Section 34 of the Indian Penal Code. One
Di lip Phadtare was a monthly tenant under the Appellant in one of the rooms   D
in his house situated at Sarpanch Vasti, Dund. It is not in dispute that
quarrels used to ensue between other tenants on the one hand and the said
Dilip Phadtare and his wife on the other. It is also not in dispute that the
Appellant had asked Dilip to vacate the tenanted premises. He was also said
to have in search of other premises.
                                                                               E
     His wife Alka Dilip Phadtare is the complainant. On I 0.04.1993, at
about 5.15 p.m., the Appellant is said to have entered into the said tenanted,
premises, when Alka (PW-2) was watching a movie in the television with
her sons Shivaji and Amo!. He enquired about her husband. Alka (PW-2)
told him that he was not at home. He thereupon allegedly entered into the ' F
room, closed the door and outraged her modesty by embracing her from
backside and touched her breasts. At that time PW-3, Dilip came back and ·
found Alka abusing the Appellant. On his questioning as to what had
happened; he was assaulted by fists and kicks. The other three accused ·
thereafter also allegedly came there and assaulted both of them. Dilip
allegedly was also assaulted with stones and bricks.                           G

     The Appellant and the other three accused persons stood their trial for
commission of offences punishable under Sections 354, 323, 504, 506 read
with Section 34 IPC on the basis of a first information report lodged by PW-
2 in relation to the aforementioned alleged incident.                          H
    1050                 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A       The prosecution besides the informant (PW-2) also examined her
    husband (PW-3) and son, Shivaji (PW-4).

          The Judicial Magistrate, First Class, Daund, by a judgment and order
    dated 25.05.1995 disbelieved the story as disclosed in the First Information
    Report as regard threatening given to her husband, Dilip (PW-3), on the
B   premise that no such allegation was made in her earlier statement. The court
    also disbelieved the allegation that Alka and her husband were abused by
    the accused persons. It furthermore negatived the case of the prosecution
    that the accused persons voluntarily caused hurt to Alka and her husband.
    The accused persons were, therefore, acquitted of the charges for commis-
c   sion of the offences punishable under Sections 323, 504, 506 read with
    Section 34 of the Code. However, the Appellant alone was found guilty of
    commission of the offence of outraging modesty of Alka by the learned
    Magistrate holding :

            "As regards the submission of probability of false implicating of
D           the accused, I find it difficult to digest that a woman will prefer to
            put her character at streak only in order to take revenge or in order
            to implicate the accused falsely, particularly when her husband
            serves in police department. Alka and her husband could have
            easily made false charge of house trespass, causing of hurt etc. to
            lodge prosecution and it was not necessary for them to put to streak
E           character of Alka by making false accusations of outraging of
            modesty by the accused No. !..."

          On the aforementioned finding, the Appellant was convicted under
    Section 354 IPC and sentenced to suffer R.I. of three months and also to
F   pay a fine of Rs.1,000. A sum of Rs.500 was directed to be paid to the
    complainant Alka by way of compensation, out of the aforementioned
    amount of fine. The Appellant preferred an appeal thereagainst. By reason
    of a judgment and order dated 31.08.1996 passed in Criminal Appeal No.
     10 of 1995, the Additional Sessions Judge, Baramati, dismissed the said
    appeal. The learned Appellate Court noticed the discrepancy in the evi-
G   dences of PW-2 and her son Shvaji as regard the manner of occurrence but
    maintained the judgment of conviction and sentenced passed by the Trial
    Judge, stating :

            " ...There was nobody to watch the said incident. No doubt, the other
            incident of beating, abusing by appellant and his other relatives to
H
                P. S. BHAGWAT v. STATE [SINHA, J.]                      1051

        Alka and her husband took place outside the house but main              A
        incident of outraging modesty of the woman having taken place in
        the drawing hall itself, there was no person, who could see the
        incident and therefore, non-examination of independent witness
        from the neighborhood of Alka and her husband, cannot be said to
        be a minus point for the prosecution. A minor discrepancy has been      B
        occurred in the evidence of mother and son. Shivaji testified that
        when mother was going towards kitchen and was in standing po-
        sition, her breasts were caught by the accused, coming behind her,
        whereas Alka stated that her breast were caught, when she was
        watching T.V. However, this discrepancy is very minor in nature,
        if a woman is assaulted in this fashion. The very next moment, she      c
        would stand up and would not continue to sit in the same position
        before she was criminally assaulted. So, if natural one and it cannot
        shake credibility of either of the witnesses to the occurrence."

     A Revision Application filed by the Appellant was dismissed by the
High Court in terms of the impugned judgment holding that both the courts       D
below have appreciated the evidence on record and on appreciation found
the accused guilty and there was no error of law committed by any of the
Court.

     It is not in dispute that the High Court passed the said judgment "in
absence of the counsel for the Appellant.
                                                                                E

      Mr. Jadhav, the learned counsel appearing on behalf of the Appellant,
would submit that the High Court committed a manifest error in passing the
impugned judgment, insofar as it failed to consider the merit of the matter.
Had the merit of the matter been gone into by the High Court, the learned       F
counsel would contend, the Appellant could have shown that he had been
falsely implicated owing to dispute between him as the landlord and Dilip
as the tenant.

    The learneci counsel appearing on behalf of the Respondent, however,
supported the judgment of the courts below.                                     G
     Keeping in view the nature of the case, we are of the opinion that the
matter should be finally disposed of by this Court upon consideration of the
materials on record.

     The strained relationship between the parties is not in dispute. If the    H
    1052                 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   contention of the first informant and her husband to the effect that they had
    already taken a decision to shift from the-said premises is believed, there




B
    does not appear to be a plausible reason as to why the Appellant and
    three other accused would trespass into the house and assault them.
    Some photographs showing the injuries of PW-2 and PW-3 were produced
    before the Court, but no reliance thereupon was placed by the learned Trial
                                                                                    -
    Judge.

         The Trial Judge, as noticed hereinbefore, disbelieved the prosecution
    case as regard: (i) threatening of the first informant and her husband by the
    accused persons, (ii) hurling abuses to them, and (iii) assaulting them by
C   bricks and stones. No independent witness has been examined and the
    witnesses of the Punchnama were also said to have been declared hostile.

         The approach of the learned Trial Judge as noticed supra that ordinarily
    a lady would not "put her character at stake" may not be wrong but cannot
    be applied universally. Each case has to be determined on the touchstone
D   of the factual matrix thereof. The law reports are replete with decisions
    where charges under Sections 376 and 354 of IPC have been found to have
    been falsely advanced.

        In this case, allegation of house trespass was made but for reasons best
    known to the investigating agency no specific charge in relation thereto was
E   made.

         Charges for causing hurt, along with other charges as noticed
    hereinbefore were specifically disbelieved.                                     .,

          The charges of making false allegations by Alka at the instance of her
F   husband, who is working in the police department cannot be totally brushed
    as.ide. No case was also made out that the incident of threatening, abusing
    or beating took place outside the house of the Appellant.

         We are not oblivious that the doctrine falsus in uno,falsus in omnibus'
G   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 ·.
H   considered keeping in view the extent of falsity in their statements. PW-2
                P. S. BHAGWAT v. STATE [SINHA, J.]                     1053

and PW-3 not only failed to substantiate the allegations as regard commis-      A
sion ofoffences under Sections 323, 504, 506 read with Section 34 IPC but
also implicated the three persons falsely. The statements of the said wit-
nesses 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 husband,. on         B
the one hand, as also and the Appellant and his other tenants could not have
been lost sight of by the learned Trial Judge.

      The exact place of occurrence and the manner in which the purported
offence of outraging the modesty was committed by the Appellant, further-
more, materially differ. Whereas PW-2 asserted that the Appellant came          C
inside the house and embraced her from the back, when she was watching
T.V. sitting; PW-4 stated that the incident took place when she was proceed-
ing towards the kitchen. The observations made by the learned appellate
court is based on surmises and conjectures. The said discrepancy even if
ordinarily could not have been the basis of passing a judgment of acquittal,
but in this case, as noticed hereinbefore, the conduct of both PW-2 and PW-     D
3 being suspect, it would not be safe to rely on a part of their statements
as prosecution witnesses.

      The High Court, in our considered opinion, should not have refused
to exercise its revisional jurisdiction on the ground that no question of law   E
had arisen therein inasmuch as in terms of Section 397 of the Code .of
Criminal Procedure, the correctness, legality or propriety of any finding,
sentence or order may fall for consideration of the Revisional Court and in
particular having regard to the fact that the prosecution case should have
been tested from the angle that the Trial Judge had acquitted all the three
accused persons who are said to have shared a common intention with the         F
Appellant not only in relation to the offences under Sections 323, 504 and
506 of the Indian Penal Code but also in relation to the offence committed
by the Appellant under Section 354 thereof.

      We, therefore, are of the opinion that having regard to the totality qf
the fact and circumstances of the case, the Appellant is entitled to be given   G
the benefit of doubt.

    For the reasons aforementioned, this Appeal is allowed, the impugned
judgment is set aside and the Appellant is discharged from the bail bond.

S.K~S.                                                      Appeal allowed.     H