^'*w'i^^^^-^:'''.'';'^ ... •"-...'•..:-> - -\^-^^^^^"yii?^/^{/^Vv^rty\/t/^Ay^-L^A^ APPaLANI. ^^ISSt^ ^...^^ IN IH£BIGH CQORI OF MABIHTA PRApESH AI JAB'&£gi?&; CR.IMIHA AEPEAL . S 2-3 QE, 1996. S Jff/BAS, see oyGaoesb Das Vaisboav, aged aboiat 19'^'ears, resl.deoto.E village Aadib, 3'atasil SariyabaDd, Oi-strict aa^ur, M.P. Versi.is RfiSPONDENI. ... T&E SIATE OF WDtB A PfiADESH &PPES._yS>S. SBC'XIQS 374(2} OF 'ffiE CODEOE' CRIH.BiAL ~7~ ~ PRQGEDyRE. . " , — / •wsssEass^i IS •'t.oijB; <!Si.. ^\ HIGH COURT OF CHHATTrseARH AT BILASPUR Single Bench : Hon'ble ttr. Justjce Prjtinker Diwaker Criminal ApDeai No. 523 of 1996 Saniay Das, son of Ganesh Das RESPON&ENT Versus The State of MadhyaT'radesh Shri AA.&. bhote, counsel fo" the appellant. Smt. Smitha ©hai,Panel Lawyer for the State. CRIMINAL APPEAL UNDER SECTION 374 (21 OF THE CODE OF CRIMINAL PROCEDURE. JU&ffEMENT (03.02.2011) This appeal is directed against the impugned judgment cnd order dated 26.02.199& passed by Speciat Judge, Raipur in Special Case No. 137/1996-convicting the accused/appeilant for the offences punishable under Sections 3 (1) (xi) of the Scheduled Caste A Scheduled Tribe (Prevention of Atrocities) Act and 506 part-II of the Indian Penai Code and sentencing him to underao rigorous imprisonment for six months with fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for three months u/S 3(l)(xi) of th.e SC/ST Act, to undergo pigorous imprisonment for six months u/S 506 part'-II IPC. Both the sentences were ordered to run concurrently. 2.~~ Bffef facts of the cose are that on 15.11.1993 at about 6 pm :F.I.R; (Ex.P-1) was lodged by ths prosecutrix (PVV-1), a .married jady aged about 26 years ajieging in it that on 14.11.1993 at about 7.00 pm when she had gone to her newty cohstructed tiouse aiong with he" servimt Kumar Singh (PW-2), the aeeused/dppellant reached there, cau9ht hold of her hand Jl' s .f. ''<-• ^^•^^.^ •1"^ '^ ,. ^^^; - i"''aa^\-S ^S:^ m and tried to pull her by saying that he wouid do the bad work with her and when shecried for help. her ssrvant who was in the other room, came there and upon his intervention, accused/appellant left her by giving a threot not to disclose the incident to anyone. After investigation challanwas filed on 29.12.1993 under Sections 354 and 506 of the Indian Pena! Code and 3 (1) (xi) of the Scheduled Caste d. Scheduled Tribe (Prevention of Atrocities) Act. 3. So as to hold the accused/a.ppella.nt guilty, prosecution has examined as many as 5 witnesses. Statement of the accused/appeiiant was also recorded under* Section 313 of the Code of (-rimina! Procedure in which he denied the charges leveled against him oind pleaded his innocence and false implication inthe case.^ , - 4. After hearing the parties the trial Court has convicted and sentericed the accused/appeliant for the offences as mentioned above. Hence this appeal. CounseS fo" the appeilant submits that there is no evidence on record to show that the alleQed act has been committed by the accused/a.ppellant knowing fully wefl that the prosecutrix belonged to -Scheduied Caste cornmunity. He submlts that unless this evidence is brought on record, the appeliant.cannot be convicted under Section 3 (1) (xi) of the •• / Scheduied Caste'A Scheduled Tribe (Preventionof Atrocities) Act. i-1e furt'her submits that there is no evidence on record to show that the alleged act was done by the appellant with intent -to dishonour or outrage h.er modesty. •i;i+-^r-- .^'iS^^ :.^ '-^ .1 <•-;>]=" c3 6. On the other hand supporting the impugned judgment it hds been argued by the State counsel thcrf conviction of the accused/appellant is in accordance with law and there is no in the same. She submits that in F.I.R. the prosecutrix has categorically stated as to for what purpose accused/appellant caught hold of her and if in the court' statement, this fact has not been stated by her, it will not mcske any difference. She has further argued that prosecution is not required to prove that the alleged act has been committed by the accused/appellant knowing fully wel! that the prosecutrix belonged to Scheduled Caste community. 7. I have heard counsel for the parties and perused the material available on record inctuding judgment impugned. 8. Prosecutrix (PW-1.) has stated in her evidence that she betong to 'Gada' caste which comes under the category of Scheduled Caste community. She Rnows the accused/appellant as he belongs to her village and by caste he is Vaishnav. She has furt'her stated that on the date of incident i.e. on Diwali festival she had gone to her newly constructed house dlong with her servant Kumar Singh and when she was tighting the lamp outside her h.ouse and her servant was doing the same inside, accused/appellant came there and by holding both of her hands tried to drag her. On cry being raised by her, her- servant cqm^; there and asked the accused/appellant as to why he was doing so on which the accused Qppellant threatened him to life. 5he has further'stated that thereafter. the incident was narrated bv. her to her husband and rnother-in-law but the repori- could not be lodged on that day' because it wa.s tate in the' night.' Kumar Singh fPW-2) - servant of the prosecutrix has also reiterated the statement as made by the prosecutr'ix by saying that on the date of incident he was in other room of the house of the prosecutrix and upon hearing her cries when he came, he saw the accused/appellant hoiding the hand of the prosecutrix and puliing her. He has further stated that when he asked the appeiiant not to do this, he was threatened by him of his iife and, thereafter, accused/a.ppetlant left the piace. , ' 9. Premiai (PW-3) - husband of the prosecutrix has stated thaf on the date of incident his wife had informed him about the fact that accused/appetlant caught hoi.d of her and pulled her. Bhagwati (PW-4) - mother-in-iaw of the prosecutrix has made almost simiiar statement as has been made by the prosecutrix about the.- act. of the uccused/appe!ia.nt. A.S. Netam (PW-5) is the investigating officer who has duly supported tte prosecution case. 10. I have heard courisel for the parties and perused the material avallable on record including judgment impugned. 11. Though in the F.I.R. and in her case diary statentent recorded under Section 161 Cr.P.C. , the prosecutr-ix has stated that the accused/appeilwit xaught hold of her hand with an intention to outrage her modesty and to do the bad work with her but ir^'/the Court statsment she has merely stated that when shai was lighting the lamp outside her house, ;accused/appellant came there and by hoiding both of h-er hands tried to pull her, cuid on hearing her cries her servant came there and upon HTstntervention, the a.ccused/appellant had left ter. .' . -M ••^~... '>',? " r«fei»-^ ^ ~~'Q S %. \9^e'/ ""^Srf^ i There Ss absolutely no evidence on record to show that the entire acf has besn done by fhe accused/appellant with an mtention to assautf w with an intention to dishonour or outrage the modesty of the proseciftrix because she belwys to Scheduied Caste commwiity. Nowhere in her court statemsnf 'it has been stated bv the prosecutrtx or any sther witness that as the prosecutrix beloryed fo Scheduled Caste category, ihls act has been done by fhe accused/appellant. The mere facf that fhe proseculrix happened to be a lady belonglng to Scheduled Casts does nof atfract the proviswns of the Act unless evidence otherwise is 12. In view of this, this Court is of the considered opinion that the accused/appeliant cannot be convicted under the speciai provision. Hsweyer, considering the evidence ayaijable on record and the act done by the accused, he is liable to be convicted under Section 354 of the Indian Periat Code. The judgment cited by counsel for- the appellant i.e. Nanka s/o Chi'miiya. Hardaspur Vs. State of Madhya Pradesh reported in 1991 MPLJ 345 is of no help to him because in the said case the dragging of the prosecutrix was not proved whereas in the case in hand,it is apparent that the prosecutrix was all alone in her house and that is why the accused/appeilant entered the house, caught hold of. her- and had tried to pull her. Furtizer^nore, ti!! the entry of seryant Kumar S'ngh (PW-2), the appeliant was hoiding the prosecutrix and he !eft her onjy •. after the intervention of Kumar Singh (PW-2). .13. White considering Section 354 of the IPC, in the matter of Tarkeshwar Sahu Vs. State of Bihar : repopTeci in under:-" '8 SCC 560 the Apex Court has held as ..;/-' Ci'^' "s"^*'i •:-.^y 37. On the basis of evidence and documents on record, in our considered view, the appetlant is a'lso guilty under Section 354 IPC because all the ingredients of Section 354 IPC are present in the instanf case. 38. Section 354 IPCreads as under : 354. Assault or criminal force to woman with intent to ou+rage her modesty. - Whoever assauit or uses criminal force to any wc'tfian, intending to outrage or knowing it to be,.lfkely thaf he will thereby oufrage her- modest'y, shal! be punished with imprisonment of either descnption for a term which may extend fo two years, or with fine, or with both. 39. So far as the offence under Sec+ion 354 IPC is concerned, infention to oufrage the modes't'y of a woman or that the act of the accused would reajlt in outragmg her modesty is thegravafnen of the offence. 40. The essence of a woman's modesty is her sex. The culpable intention of the cKcused 'i's the crux of the triaf+er. The reaction of the woman is very reievant, buf ifs absence is mt always decisive. Modesi'y is an attribute associated with female humanbeings as a class. It is a virtue which attaches to o familyowing to her sex. 41. "Modesty" 'is given as, "Womanly propr/ety of behaviour; scrupulous chastity of though, speech and conduct" (in man or woman); reserve or sense, of^shcme proceeding from instincfive aversion to impi/re or coarse suggestions. 42. The ultimate test for ascerfaining whether the modesty ofawoman has been outraged, assaultea on insulfed is fhat the actiori of the offender shoutd be such fhaf it may be perceived as one which is co.pa.ble of shoching fhe sense of decency of a woman of a woman. -A person slapping on the posterior of a woman in full public glare would amount to outraging her modesty for it was mt only a affront to the norinal sense of feminine decencybut also an affront fo fhe dignityofthe lady. 43. The word "modesf/ is nor to be interprefed with rsference fo Ihe parficulw viciim of the acf, but as an "* attribute associated with female human be'ings as a clees. If is a virf'ue which attaches to a female on account of her sex. 44. We deem it appropridte to reproduce the cases af various courts indicafing circumstcmces in which fhe court convicted the accused under Secl-ion 354 IPC. 45. In State of Kerala v. Hamsa reporl-ed in (1988) 3 Crimes 161 (Ker) it was stated as under: 'What the legishture had in mind when it used to word modesty Jn Sections 354 and 509 of +he Penal Code was protection of an atfribute which is pecuiiar to woman as a virrue which attaches to a female'on account of her sex. Modesty is the attribute of female sex and she possesses it irrespective of her age. The •two offences were created nof oniy in fhe interest of the woman concerned, but in the interest of public morality as well. The question of infringing the modesty of a woman woutct of course depend upon the cusfoms and habits of the ^peopie. Acts which are outrageous to marality would be outrageous to modesty of women. No particular yardstick of Lyiivgrsal applicot'ion can bemads for measuring '• /the /anplitude of niodesty of woman, as n may • 9ary from country to counfry or society to society. •46. A well known duthour Kenny in his book Oui-lines of Wfninal l.aw^ad deatt with the aspecf of indecenf assault upon a female. The.relevant passage reads as under : • 'In England b~y the 5exuat Offences Act, 1956, -an indecenf assault upon a fema/e (of any age) •\\. is made a misdemeanour and on a charge for indecent assault upon a child or young person under the age of sixteen it is no defence fhat she (or he) consented to the act of indecency." 47. In State of Punjab v. Major Slmh reoorted in ^IR 1967 SC 63 : 1967 Cri LJa three-Judae Bench of this court considered the question'- whethsr modssty of a female chitd of 7 i months can also be outraged. The majority view was in the affirmative. Bachawat, J, on behalf of majority, opined as under : "The offence punishable under Section 354 is an assaulf on or use of criminal force to a woman with ths intention of outraging her modesty or with the knowledge of rhe likelihood of doing so. The Code does not define 'modest/. Whaf then is a wofnan's modesty ? .... The essSnee'of a woman's modesty is her sex. The modesty of an adulf female is writ large on her bpdy. Young or oid, intelligent or imbeciie, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criininal force to her with intent to outrage her modesty commits an offence punishable under Section 354, The culpable in-t-enfion of the accused is the crux of fhe mafter. The reaction of the woman is very reievant, but ifs absence is- not alwcys decisive, as, for example, when the accused with a corrupf mind stealthily touches fhe flesh of a/sleeping wofnan. She may be an idiot, she '' -hiay be under the spell of anaesthesia, she tnay be sleeping, she may be unable to appreciate the significance of the acf, nevertheless, the offender is punishable under the section. A female of tender age stands on a somewbat different footing. Her body is immature, and her sexual powers cre ^dprmant. In this case, the victim is a baby, •^, '. ^J] '•'•^StSS seven-and-half months old. She has not yet developed a sense of shame and has no Qwweness of sex. Nevertheless from her very birth she possesses the modesty which is the attribute of her sex." In Kanhu Charan Patra v. State of On'ssa reported in 1996 Cri. L.J. 1151 (Ori.) the Orissa High Court stated as under : " The accused enfered fhe house the door which two girls of growing age had closed from inside and molested fhem bur they could do nothing more as the girls made good their escape. On being prosecuted it was held that the act of fhe accused was of graye nature and fhey had committed the swne in a daredevil manner. As such, their conviction under Sections 354/34 ivas held proper. 49. TheHigh Court of Delhi in Jai Chand v. State reported in 1996 Cri LJ 2039 (t)el] obssrved as under : "The accused in another cyse had forcibly laid the ptosecutrix on the bed and broken her pyj'ana's string but made no attempr to undress himself and when fhe prosecutrix pushed him away, he did not make efforts to grab her again. It was held that it was not an atfempt to rape but only outraging of the modesty of a woman and conviction under Section 354 wasproper. 51. The Cour-t in State of^wngtoKa v. Khaleel reporfed in 2004 Cri. LJ (N00 10 fKant) stafedas fotlows: "The fxirehts reached the sugarcane field when • accUsed was in process of attempting molestation and immediately he r'an away from the place. There was no evidence m support of allegotion of rape and accused was acquifted of charge ynder Secfion 376 bui he was hetd liable forconvictin-under Section 354/511 IPC." 52. The Court'in Mina v. Emperor repor+ed in f1912) 13 Cri LJ 469 statedas follows 10 .^.y "y 53. " The accused took off a girl's clothes, 1-hrew her on to the ground and then sat down beside her. He aiid nothing to her nor did he do anything more to her: [It is held] that the accused commit+ed an offence under Section 354 IP€wd was no^ guilty of an attempt to commit rape." The Court in Blsh'eshwar Murmu v. State of Bihar reported in 2004 Cri.L.J. 326 (Jhgr) stated as under :- " The evidence showed' that the accused caught hold of the hand of the informant/vicfim and when one of the prosecution wifnesses came there hearing alarm of the victim, offence under Sections 376/511 was not made out and conviction was converted into one under Secfion 354 for outraging the modestyof the victim. " 54. The Court ir y. State of reported in 1976 Cutt LR f€ri)236 stated as under : "The test of outrage of modesty is whefher- a reasonable man wili think that the ac-t of the offender was intended to or was known to be likely fo outrage the modesty of the woman. In the instanf case, the girl was 15 years of age and in fhe midnighf whiie she was coming back with her mot'ner the sudden appearance of the petitioner from a lane and dragging her towards that side sufficiently esfablished fhe ingredients of Section 354." 55. The Court.sn Ram Mehar v. Stafe of Haryana repori-ed ./ in 1998Cri.tJ 1999 (P <& H) stafed as under : " The aceused caught hoid of the prosecutrix, fifted her and then took her to a bajra field where he felled her down wid tried to open her salwar but coula' not do so as in order to make fhe aacused powertess the prosecutrix had injursd him bygiving a biow of the sickle. The accused failed to give his blood sample ivith the result it could be presumed that his 11 ^.f innocence was doubtful. Ocular evidence of the prosecutrix was aiso corroborated by other evidence. It was held rhar conviction of the accused under Sections 454, 376/511 was proper but taking a lenient view oniy tow years' RI and a fine of Rs.lOOO was impose on him. " 14. Considering the above legal position and the facts and circumstances of the case,.. t'ne convietion of the accused/appe!!ant under Section 3 (1) (xi) of the ScheduSed Caste A Scheduled Tribe (Prevention of Atpocities) Act is set aside. Likewise, there is no cogent iegaiiy admissible evidence in respect of the Section 506 part II of the IPC and, therefore, the conviction of the a.ccused/appellant under Section 506 part II is set aside, this Court is of the view that instead of offence unslep Section 3 (1) (xi) of the Scheduled Caste <& Scheduled Tribe (Prevention of Atrocities) Act , offence under Section 354 IPC'is cleariy made out against the accused/appellcmt. Thus he is convicted under -Section 354 of the Indian Penal Code. 15. As regards sentence p<yt, it has been argued by the counsel for the appellant that the incident took place in the year 1993 i.e. about 17 yecsrs back, at the time of commission of offence accused/appeliant was a young boy of 19 years and now he is ^ged'about 36 ySars, instead of sending him to jail, . / some fine cmoun-t may be imposed upon him because jail sentence is not mandatory for the offence under Section 354 of the Indian Penal Code. He further m-gued that the appellant is willjng fo regsonably compensate the prosecutrix. This submissjon of the counsel for the appellant is not seriously .opposed by the sfcte counse!. 1 12 16. Accordingly, in the pecutiar facts and cir-cumstances of the case, jail sentence is not desirable to be imposed on the appellant. However, instead of any •furrher Jail sentence, fine of Rs.11,000/- is imposed upon the appellant and out of which Ks.10,000 would be payable to the prosecutrix. This be done within six months from the date of receipt of copy of this order. If the amount is not dpposited within the stipulated period , the appellants shall undergo the rigorous imprisonment for six months. 17. Appeat is thus partly allowed. Sd/ Pritinker Diwaker Judge ,/ -. / ;i