MADHUSUDAN MOHANLAL SHRIVASTVA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant Madhusudan Mohanlal Shrivastav (Original accused) has preferred this appeal against the conviction recorded and the sentences of imprisonment and fine imposed upon him by the learned Presidency Magistrate, 29th Court, Dadar, Bombay, under Sections 354 & 323 of the Indian Penal Code.

(2.) The complainant Mrs. Hilla Manchersha Batliwala and her husband Dr. Manchersha Batliwala are in occupation of certain premises consisting of 6 rooms and kitchen on the first floor and one room on the second floor of Yasmin Villa" situate at Parel, Bombay, as tenants. Out of these 7 rooms in their occupation as tenants, they have given four rooms on the first floor and the rooms on the second floor to difference persons as paying guests. (P.W. 3) Sorabjee Dalal is one of such paying guests on the first floor of the building and the accused Madhusudan Shrivastav is occupying the room on the second floor since the month of January 1967. From the first floor, there is a staircase leading to the second floor and whenever the accused is to go to his room, he is required to ring the bell near the door on the first floor and then climb up the staircase to his room. Dr. Mancharshar Batliwala was formerly serving on a ship and he is now selling fish. (P.W. 4) Rajuswami is his domestic servant and he also helps Dr. Batliwala in his business of selling fish. The relations between Dr. Manchersha Batliwala and the accused Madhusudan Shrivastav became strained since 1970 and there were complaints and cross-complaints between them. In that very year, Dr. Manchersha Batliwala filed a suit, being Suit No. 73/325 of 1970 in the Court of Small Causes, Bombay seeking to evict the accused Madhusudan Shrivastav from the premises in his occupation. On 5th October, 1972, evidence of the accused Madhusudan Shrivastav was recorded in that case.

(3.) According to the complainant Mrs. Hilla Batliwala, on the night between 5th and 6th October, 1972, the accused Madhusudan Shrivastav returned home at about 1-30 a.m. and rang the call-bell at the door of the first floor. On the next day in the morning at about 7.40 a.m., the complainant went to the room of the accused on the second floor in order to request him not to come late at night and disturb her family members in their sleep and also to verify whether all the pieces of furniture given to the accused when he was inducted into the room in January 1967 were still in that room. The complainant knocked at the door of the room of the accused, whereupon the latter opened the door. As soon as the door was opened, the complainant noticed that some of the pieces of furniture given to the accused were not in the room and she questioned the accused about those missing pieces of furniture. The accused told the complainant that he had sold all those pieces of furniture. The complainant told the accused that those pieces of furniture were given to him for being used in the room and not for sale. It is the case of the complainant Mrs. Hilla Batliwala that upon this, the accused lost his temper, stated using vulgar and indecent language against her and he also pulled her to his bed. The accused forcibly put the complainant on his bed and started handling her breasts. The complainants Sadra, night-gown and house coat were torn and she started struggling and screaming for help. On hearing her screams, Dr. Manchersha Batliwala came to the second floor accompanied by (P.W. 3), Sorabjee Dalal. Dr. Manchersha Batliwala pulled the accused who was then lying on the person of the complainant. The accused suddenly picked up a hammer lying on a nearby table and started assaulting Dr. Mancersha Batliwala with that hammer. Dr. Batliwala tried to ward off those hammer blows and the complainant tried to intervenes in that scuffle. Finally Dr. Manchersha Batliwala managed to snatch the hammer from the hands of the accused and the hammer fell down on the floor. (P.W. 3), Sorabjee Dalal put his foot on that hammer, lest the accused may again pick up that hammer and assault Dr. Mancersha Batliwala. The accused however, gavekicks on the abdomen of Dr. Manchersha Batliwala and managed to throw him on the bed. He also throttled Dr. Batliwala with one had and tried to thrust his fingers in the eyes of Dr. Batliwala. The complainant screamed and on hearing those screams, (P.W. 4), Rajuswami came to the second floor. He found that the accused was on the top of Dr. Manchersha Batliwala on the bed. Rajuswami and (P.W. 3), Sorabjee Dalal pulled the accused aside and rescued Dr. Manchersha Batliwala. The complainant Mrs. Hilla Batliwala and Dr. Manchersha Batliwala then asked (P.W. 3), Sorabjee Dalal and (P.W. 4), Rajuswami to remain at the same offence only, lest the accused may do away with the hammer and both of them went down to their premises on the first floor and gave a ring to the police.