Bombay High Court
Gajanan S/O. Naktuji Satpute vs The State Of Maharashtra Thr. P.S.O., ... on 12 April, 2019
Author: M. G. Giratkar
Bench: M. G. Giratkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
Criminal Revision No. 180 of 2018
(1) Gajanan S/o Naktuji Satpute
Aged about 52 years, Occ - Service,
(2) Ramchandra S/o Gajanan Satpute
Aged about 28 years, Occ - Education,
Both R/o Navegaon (Rai), Tahsil - Chamorshi,
District - Gadchiroli. .... Applicants
- Versus -
The State of Maharashtra
Through Police Station Officer,
Police Station, Gadchiroli,
District - Gadchiroli. .... Respondent
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Shri Madhur Deo, Advocate for the applicants
Shri S. D. Sirpurkar, APP for the State/respondent
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CORAM : M. G. GIRATKAR, J.
DATE : 12/4/2019
ORAL JUDGMENT
Heard learned counsel Shri Deo for the applicants and Shri Sirpurkar, learned Additional Public Prosecutor for the State/ respondent.
2. Rule. Rule made returnable forthwith.
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3. The present revision is against the judgment of conviction passed by the Judicial Magistrate First Class, Gadchiroli in Summary Criminal Case No. 337/2014 by which the applicants were convicted for the offences punishable under Sections 341, 186, 509 and 506 read with Section 34 of the Indian Penal Code. The said judgment was challenged before the Sessions Judge, Gadchiroli in Criminal Appeal No. 34/2016. Said appeal was partly allowed by the Sessions Judge. The conviction for the offence punishable under Section 506 read with Section 34 of the Indian Penal Code came to be quashed and set aside but maintained the judgment of the Judicial Magistrate First Class for the offences punishable under Sections 341, 186 and 509 read with Section 34 of the Indian Penal Code.
4. The case of the prosecution against the applicants (hereinafter referred to as 'accused') in short is that the complainant was working as secretary of gram panchayat and accused were members of gram panchayat. On 29-3-2014, complainant along with her team was recovering the house tax from the villagers of Village Navegaon. Accused persons restrained her and threatened her not to recover the house tax and told her if she wanted to make the recovery, she should come in the night. They were not allowed to proceed for recovery of tax. On her ::: Uploaded on - 16/04/2019 ::: Downloaded on - 06/04/2020 09:24:37 ::: 3 jg.revn 180.18.odt report, crime was registered. After complete investigation, charge-sheet was filed before the Judicial Magistrate First Class, Gadchiroli. Charge was framed against both the accused. Prosecution has examined only three witnesses. Statements of accused came to be recorded under Section 313 of the Code of Criminal Procedure. After hearing the prosecution and defence, learned Judicial Magistrate First Class, Gadchiroli convicted the accused as stated above. The appeal was partly allowed by the Sessions Judge, hence, the present revision.
5. Heard learned counsel Shri Madhur Deo for the accused. He has submitted that offence punishable under Section 186 of the Indian Penal Code should not have been charged against the accused. There is specific bar under Section 195 of the Code of Criminal Procedure. Learned counsel has submitted that for the offence punishable under Section 341 of the Indian Penal Code, there is no evidence to show that the complainant was restrained from proceeding to any direction. Moreover, there are material omissions in her evidence. In respect of offence punishable under Section 509 of the Indian Penal Code, learned counsel has submitted that there was no any intention on the part of accused to utter any words or gesture. Learned counsel has submitted that prosecution has not examined material witnesses who have stated ::: Uploaded on - 16/04/2019 ::: Downloaded on - 06/04/2020 09:24:37 ::: 4 jg.revn 180.18.odt the real fact.
6. Learned counsel Shri Deo has submitted that the words 'in the night' used and uttered by the accused not taken in a proper context. Learned counsel has submitted that it was the duty of the prosecutor to examine all the material witnesses. In support of his submissions, he pointed out decision in the case of Darya singh and others Vs. State of Punjab reported in AIR 1965 SC 328. Learned counsel has pointed out paragraph no. 11 of the said judgment. Learned counsel has submitted that obscene words or gesture cannot be uttered by two persons. This type of act is of only one person and both accused cannot be charged for the offence punishable under Section 509 of the Indian Penal Code. In support of his submissions, he pointed out decision in the case of Haridas s/o Ajab Shinde Vs. State of Maharashtra reported in 1997 Cri.L.J.
122. Learned counsel has pointed out paragraph no. 7 of the judgment and submitted that framing of charge with the aid of Section 34 was entirely incorrect and the charge should have been framed substantively against the accused who was alleged to have uttered the offending words.
7. Learned counsel Shri Deo has submitted that there is no evidence to show that the complainant was obstructed by accused from going to a particular direction and, therefore, offence punishable under ::: Uploaded on - 16/04/2019 ::: Downloaded on - 06/04/2020 09:24:37 ::: 5 jg.revn 180.18.odt Section 341 of the Indian Penal Code is not attracted. In support of his submissions, he pointed out decision in the case of Antonio Xavier Gomes Pereira and ors. Vs. State of Goa and others reported in [2017(2) Mh.L.J. (Cri.) 253]. Learned counsel has submitted that both the accused are falsely involved in crime because of the rivalry in the village. At last, he prayed to allow the revision and acquit the accused for the offences punishable under Sections 341, 186 and 509 read with Section 34 of the Indian Penal Code.
8. Heard Shri Sirpurkar, learned Additional Public Prosecutor for the respondent. He has strongly supported the impugned judgments. Learned Additional Public Prosecutor has submitted that P.W. 1 was working as secretary of gram panchayat. P.W. 1 was on duty as public servant. She was obstructed by the accused. Accused are rightly convicted by the Courts below. Hence, revision is liable to be dismissed.
9. Insofar as Section 186 of the Indian Penal Code is concerned, there is specific bar under Section 195 of the Code of Criminal Procedure. Charge should not have been framed against the accused for the said offence. Section 195 reads as under :-
195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. - (1) No ::: Uploaded on - 16/04/2019 ::: Downloaded on - 06/04/2020 09:24:37 ::: 6 jg.revn 180.18.odt Court shall take cognizance -
(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) ....
(iii) ....
except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.
(b)(i) ----
From the reading of Section 195 of the Code of Criminal Procedure, it is clear that no Court shall take cognizance of the offence punishable under Section 186 of the Indian Penal Code except on the complaint in writing of the public servant or of other public servant who administratively subordinate to him. This itself shows that Court shall not take cognizance on the police report. Court can take cognizance only on the report in writing of that public servant. Therefore, framing of charge and conviction by the trial Court and maintained by the Sessions Judge, Gadchiroli for the offence punishable under Section 186 of the Indian Penal Code is nothing but illegal. Therefore, conviction under Section 186 of the Indian Penal Code is liable to set aside.
10. Evidence of P.W. 1 Gayatri Wasekar shows that she was on duty for collection of taxes. Just after collecting the tax from Yadav Satpute, when they were on the public road for collecting the taxes of ::: Uploaded on - 16/04/2019 ::: Downloaded on - 06/04/2020 09:24:37 ::: 7 jg.revn 180.18.odt other villagemen, the accused nos. 1 and 2 came on their motorcycle and started speaking who had told her for collection of taxes from the villagemen and further stated that henceforth not to collect the tax from the villagemen and asked her to come in the night. This particular evidence does not show that she was obstructed by the accused persons in any manner. Definition of wrongful restraint is given in Section 339 of the Indian Penal Code which is reproduced as under.
339. Wrongful restraint. - Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
Exception. - The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.
11. The evidence of P.W. 1 Gayatri does not show that she was restrained by the accused on public road. She has only stated that accused nos. 1 and 2 came on their motorcycle and started asking her who had told her for collection of taxes etc. She has not stated specifically that she was restrained by the accused nos. 1 and 2 from proceeding in any direction. Moreover, material omissions are brought on record in her cross-examination, more particularly, in paragraph no. 5 of her evidence. Therefore, prosecution has failed to prove that accused had ::: Uploaded on - 16/04/2019 ::: Downloaded on - 06/04/2020 09:24:37 ::: 8 jg.revn 180.18.odt restrained the complainant from proceeding in any direction. The material ingredients of Section 341 of the Indian Penal Code are not proved by the prosecution.
12. Learned counsel for the accused has pointed out decision in the case of Antonio Xavier Gomes Pereira and ors. Vs. State of Goa and others (supra). In paragraph no. 23 of the judgment, the Division Bench of this Court has observed that "complainant was not obstructed from proceeding in any direction and, therefore, accused cannot be convicted for the offence punishable under Section 341 of the Indian Penal Code." In the present case, complainant not stated anything about obstruction by the accused. She has only stated that after the collection of tax from Yadav Satpute, they reached on public road for collecting taxes of villagers, during that time accused nos. 1 and 2 came on their motorcycle and started speaking who had told her for collection of taxes... etc. This particular evidence nowhere shows that she was obstructed by any of the accused and, therefore, offence punishable under Section 341 of the Indian Penal Code is not proved by the prosecution. Learned trial Court and first appellate Court have not taken into consideration this aspect of the matter and wrongly convicted the accused for the offence punishable under Section 341 of the Indian Penal Code.
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13. Accused persons are convicted for the offence punishable under Section 509 of the Indian Penal Code. Section 509 reads as under :
509. Word, gesture or act intended to insult the modesty of a woman. - Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, [shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.]
14. Prosecution ought to have adduced evidence to show that accused made any gesture or uttered such words to attract Section 509 of the Indian Penal Code. In the present case, the complainant has stated that accused started altercation with her and asked her as to who had told her for collection of taxes from the villagemen and further stated henceforth not to collect the tax from the villagemen and asked her to come in the night. The evidence is to be taken in proper context. Nothing is stated by the complainant P.W. 1, P.W. 2 and P.W. 3 that accused nos. 1 and 2 with an intention to insult her made such statement saying that to come in the night.
15. Learned counsel for the accused has pointed out decision in the case of Haridas s/o Ajab Shinde Vs. State of Maharashtra (supra) and submitted that charge against two persons for the offence punishable ::: Uploaded on - 16/04/2019 ::: Downloaded on - 06/04/2020 09:24:37 ::: 10 jg.revn 180.18.odt under Section 509 read with Section 34 of the Indian Penal Code cannot be framed. One of the accused must have uttered such words and at a time, two accused cannot utter same words. It is observed that framing of the charge with the aid of Section 34 was entirely incorrect and the charge should have been framed substantively against the accused who was alleged to have uttered the offending words. In the present case, charge for the offence punishable under Section 509 read with Section 34 was framed by the trial Court. P.W. 1 or P.W. 2 and P.W. 3 have not stated specifically out of two accused which particular accused uttered such words against complainant P.W. 1. Moreover, statements of other Government servants who were accompanying the complainant at the time of incident were not taken into consideration by the trial Court. Material witnesses were not examined by the prosecution who have stated the real fact before the Court.
16. Learned counsel has pointed out judgment of Hon'ble Apex Court in the case of Darya singh and others Vs. State of Punjab (supra). Hon'ble Apex Court has observed that "it is the right of the prosecutor who act fairly and he should examine all the material witnesses." In the present case, the statements of independent witnesses recorded by police viz. Arun Bhandekar and Shamrao Bodhalkar show that there was no light in the village and, therefore, accused persons told the complainant ::: Uploaded on - 16/04/2019 ::: Downloaded on - 06/04/2020 09:24:37 ::: 11 jg.revn 180.18.odt to come in the night and see the real fact. This particular evidence supporting to the accused not brought on record by the prosecution. There was no opportunity for defence to brought this evidence on record because the Investigating Officer not examined by the prosecution. If the statements of Arun Bhandekar and Shamrao Bodhalkar are taken into consideration, then it is clear that accused persons told the complainant that there was no light in the night and, therefore, she was requested to come in the night and see the factual position. Therefore, bare words stated by the complainant that accused told her to come in the night cannot be taken as a gospel truth. Moreover, said words "come in the night" does not attract Section 509 of the Indian Penal Code. The words "come in the night" uttered by the accused should have been taken into consideration by the trial Court as well as first appellate Court in the proper context.
17. P.W. 1 and P.W. 2 have specifically admitted in their cross- examination that there was no light in the village and accused were always raising the question in the gram panchayat in that behalf. Accused persons were insisting for the development of village. It is clear that there was no light in the village and, therefore, even though the complainant was collecting the taxes from the villagers, accused persons told her to ::: Uploaded on - 16/04/2019 ::: Downloaded on - 06/04/2020 09:24:37 ::: 12 jg.revn 180.18.odt come in the night and see the factual position. That particular words "come in the night" do not show that it is a gesture or words heard by the complainant (woman) which intrudes upon the privacy of woman/ complainant. Therefore, material ingredients of Section 509 of the Indian Penal Code are not proved by the prosecution. While deciding the case, trial Court should have considered the facts in which situation the words were uttered by the accused. The statements recorded by police under Section 161 of the Code of Criminal Procedure of Arun Bhandekar and Shamrao Bodhalkar clearly show that there was no light in the village, therefore, accused told the complainant to come in the night and see whether there is really light in the village or not. Therefore, what is stated by the complainant that accused told her to come in the night is to be taken into consideration in that context by the trial Court.
18. Prosecution has miserably failed to prove the guilt of accused. Learned trial Court as well as first appellate Court have not taken into consideration the provisions of Section 195 of the Code of Criminal Procedure. As per Section 195 of the Code of Criminal Procedure, trial Court should not have been taken cognizance of offence punishable under Section 186 of the Indian Penal Code. Framing of charge for the offence punishable under Section 186 of the Indian Penal Code by the trial Court ::: Uploaded on - 16/04/2019 ::: Downloaded on - 06/04/2020 09:24:37 ::: 13 jg.revn 180.18.odt itself is illegal. There is specific bar of Section 195 of the Code of Criminal Procedure, not to take cognizance of offence punishable under Section 186.
19. Prosecution has failed to prove that the complainant was obstructed by the accused persons by proceeding on public road. The complainant herself not stated in her evidence that accused persons obstructed her from proceeding in any direction. The prosecution failed to prove that accused persons uttered any obscene words or made any gesture so as to punish them for the offence punishable under Section 509 of the Indian Penal Code. In that view of the matter, following order is passed.
ORDER
(i) Revision is allowed.
(ii) Accused nos. 1 and 2 are acquitted of the offences punishable
under Section 186, 341 and 509 of the Indian Penal Code.
(iii) Their bail bonds stand cancelled.
(iv) Fine amount, if paid, be refunded to them.
(v) R & P be sent back.
JUDGE
wasnik
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