2014 ALL MR (Cri) 4371
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.S. JADHAV, J.

Rajnikant Kanji Bamania Vs. The State of Maharashtra & Anr.

Criminal Revision Application No. 274 of 2013

27th August, 2013

Petitioner Counsel: Mrs. ASHVINI A. TAKALKAR
Respondent Counsel: Ms. P.P. SHINDE
Other Counsel: Mr. D.A. NALAWADE

Penal Code (1860), Ss.323, 506, 354 - Hurt, criminal intimidation and outraging modesty of woman - Conviction - Challenge - Accused allegedly slapped complainant, abused her and threatened her - Assault and criminal intimidation proved by evidence of witnesses - However, nobody stated about specific abuses given to complainant - Nothing on record to indicate that modesty of complainant was outraged - Hence, conviction for offence under Ss.323 and 506 proper - However, accused is to be acquitted from offence under S.354. (Para 11)

JUDGMENT

JUDGMENT :- Heard the Counsel for the applicant, the learned Public Prosecutor for Union of India and the learned APP for State.

2. The applicant herein is the original accused in RCC No. 5 of 2010. By Judgment and Order dated 24th September, 2010 the learned Judicial Magistrate First Class, Diu had been pleased to convict the applicant for offence punishable under Section 323 of the Indian Penal Code and sentenced him to suffer S.I. for one month and to pay fine of Rs. 500/- i.d. to undergo S.I. for 7 days. The applicant is also convicted for offence punishable under Section 506 of the Indian Penal Code and sentenced him to suffer S.I. for 3 months and to pay fine of Rs. 1000/- i.d. to suffer S.I. for 15 days. He is also convicted for offence punishable under Section 354 of the Indian Penal Code and sentenced to suffer S.I. for one month and to pay fine of Rs.500/- i.d. S.I. for 7 days. Being aggrieved by the said Judgment and Order, the applicant had preferred an appeal before the Court of Sessions, Diu. The learned Sessions Judge, Diu by Judgment and Order dated 24th April, 2013 has been pleased to dismiss appeal. Hence, this revision.

3. Such of the facts which are necessary for the decision of this application are as follows :

(i) Nikikumari Premji Pateliya was serving as a Councilor in Aids Control Society which is run under the supervision of the Primary Health Centre, Ghoghla, Diu. Hemal Bamania was working as Laboratory Technician in the said society. On 27/11/2009 Nikikumari and Hemal Bamania were working in the office in the Primary Health Centre and discharging their official work. At about 4.30 p.m. the present applicant came to the Primary Health Centre. His brother Dilip Kanji Bamania was working as a Medical Officer in the said Primary Health Centre. Nikikumari and Hemal were writing invitation cards for AIDs control rally. All of a sudden the accused started abusing the complainant in filthy language. Thereafter, he slapped her on her cheek. Hemal had made an attempt to rescue her. The accused had also assaulted Hemal with fists and kick blows. In the meanwhile, the staff members of the Primary Health Centre intervened and rescued the complainant. The applicant is alleged to have caught hands of the complainant Nikikumari and pulled her in order to outrage her modesty. The accused applicant was taken outside the office. It is alleged that the applicant had threatened Nikikumari. She then approached the police station and lodged the report. On the basis of her complaint, Crime No. 63 of 2009 was registered against the accused. The investigation was completed and charge-sheet was filed on 15/10/2009. The learned J.M.F.C. had framed charges against the applicant under Section 323, 353, 354, 504, 506 of the Indian Penal Code.

4. The prosecution examined 7 witnesses to bring home the guilt of the accused. The learned Magistrate had thereafter convicted the accused. The Appellate Court had dismissed the appeal.

5. P.W. 1 Nikikumari is the complainant. In the examination-in-chief, she had reiterated the allegations made by her in the first information report. It is admitted in the cross-examination that she had not furnished any documents to the police to show that she was in government service. She has stated that she knows the accused. It is elicited in the cross-examination that the place where she was working is a crowded locality. That an ambulance vehicle is parked. There is an office of Dentist. An office of nursing staff is also situated besides her office. That the cabins of the other doctors are situated besides her office. She reiterated in the cross-examination she was on duty till 5 p.m. and the accused had visited the work place and abused as well as assaulted her. She has further admitted that even prior to the present incident, she had filed a complaint against the accused. While lodging present complaint, she had not stated about specific abuses to the police. She has denied the suggestion that there was false implication. She has proved the contents of the FIR.

6. P.W. 2 Heemal Bamania is also a co-employee of P.W. 1. He has deposed before the Court that on 27th November, 2009 between 3 p.m. to 5 p.m. he was present in his office. He alongwith the complainant were serving in AIDS Control Society. He was serving as laboratory technician. On the day of the incident, he was present in the counselling office alongwith the complainant. They were writing invitation cards. At about 4.30 p.m. the accused had come at the window and abused the complainant. He then slapped the complainant on her left cheek. When P.W. 2 intervened, he was also assaulted by fists and kick blows. In the meanwhile, the brother of the accused Dr. Dilip Bamania had come to the spot. The accused had continued to give abuses. He had again entered the office and pulled hand of the complainant with an intention to outrage her modesty. Thereafter, the accused was taken away by the staff who was working in the primary health centre. It is elicited in the cross-examination that P.W. 2 was serving on a contract basis. That at the time of incident, there were only 5 to 7 patients in the lobby. There are inherent material omissions in the evidence of P.W. 2. Specific abuses did not find place in the FIR. There is an omission that he had not stated to the police that the accused had given fists, blows on his left eye. He had narrated his statement to the police in Gujrati language.

7. P.W. 3 Ashish Bhat who was working as a staff nurse at Government Hospital, Diu has been declared hostile. P.W. 4 is Dr. Dilip Bamanania who happens to be the real brother of the present applicant. He is working as a medical officer of Primary Health Centre, Ghoghla since 11 years prior to the incident. He has denied the incident dated 27th November, 2009. According to him, Laboratory Technician is not expected to sit with councilor.

8. P.W. 5 Dr. S.S. Sahoo was working as Medical Officer on emergency duty. On 27th November, 2009 at about 5 .20 p.m. Hemal and Nikikumari were brought for medical examination for treatment. P.W. 2 Hemal is said to have sustained conjunctival Haemorrhage size 0.25 x 0.5 mm. The nature of injury was simple. It was a fresh injury. It was caused by a blunt object. Accordingly, he issued a medical certificate which is at Exh. 21. He had also examined the complainant and found bruises over left forearm. He had issued medical certificate which is at Exh. 22. He has admitted that in both the medical certificate history narrated by the patient is not mentioned. The injuries mentioned in both the certificates are reported to be self inflicted.

9. P.W. 6 Dr. Mahesh Vaishya was working as Health Officer at Primary Health Centre, Ghoghla. He is Chief Officer of Primary Health Centre, Ghoghala AIDS Control Society. He has deposed before the Court that medical officers entrusted with emergency duty are working on duty for 24 hours. It is admitted by him in the cross-examination that the complainant being a counsellor has to do the work of counselling in the private. In the eventuality that if a person approached the Primary Health Centre, Ghoghala for test for AIDS, all the information has to be kept secret. He has given evasive answers to the suggestions as to whether the accused had filed any application against Hemal Bamania.

10. P.W. 7 Bharat Bamania is the Head Constable attached to Ghoghala Police Chowky. On 27/11/2009 he had received telephonic call from the complainant from Primary Health Centre. At that time the accused was not present but the complainant was present. Hemal was also present. The complainant had informed him that she had sustained injuries and therefore, both were taken to Primary Health Centre, Ghoghala. He had recorded the statement of the complainant as per her say, which is marked as Exh. 9. Investigation was set in motion. He has proved the omissions and contradictions of the witnesses. It is elicited in the cross-examination that P.W. 7 knew the accused as he is press reporter. He had no documentary evidence to arrive at a conclusion that the complainant is a government servant. He has admitted that while lodging complaint, the complainant had not stated specific abuses which were given to her by the accused.

11. Upon perusal of the substantive evidence of the witnesses and records, it is apparent on the face of the record that the complainant has proved that the present applicant had slapped her on the cheek. There is nothing on record to indicate that the applicant had abused her. However, there is nothing on record to indicate that the applicant had outraged the modesty of the complainant. The witness P.W. 2 has proved that there was criminal intimidation to the complainant by the applicant. Hence, the conviction of the applicant for offence punishable under Section 323 of the Indian Penal Code and Section 506 of the Indian Penal Code is upheld. The applicant is acquitted of the offence punishable under Section 354 of the Indian Penal Code. Hence, the following order is passed :

ORDER

i) The applicant is acquitted of the offence punishable under Section 354 of the I.P.C.

ii) Conviction of the applicant for the offences punishable under Sections 323 I.P.C. and 506 I.P.C. is upheld. The applicant is sentenced to suffer simple imprisonment for one month and to pay fine of Rs. 500/- for the offence punishable under Section 323 I.P.C. The applicant has undergone substantive sentence.

iii) The applicant is convicted for the offence punishable under Section 506 I.P.C and is sentenced to suffer simple imprisonment for three months and pay fine of Rs.1000/-, in default, simple imprisonment for 15 days.

iv) The applicant is in jail since 24 April 2013. He has undergone substantive sentence. He had deposed the amount of fine imposed upon him. Hence, the applicant be released forthwith, if not required in any other offence.

v) The applicant is acquitted of the offence punishable under Section 354 I.P.C. The amount of fine shall be refunded to the applicant.

vi) The Criminal Revision Application is disposed of.

Ordered accordingly.