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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 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 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 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 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 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 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.

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 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 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.