1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. JUDGMENT ************* S.B. CRIMINAL APPEAL NO. 215/1985 (Khiyali vs. The State of Rajasthan) Date of Judgment: 29th of January, 2008 PRESENTS. HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. Anil Khanna, for the appellant. Mr. B.S. Chabba, Public Prosecutor. By this appeal, under Section 374(2) Cr.P.C., the accused-appellant has challenged the judgment dated 19.04.1985 passed by learned ADJ, Gangapur City, in Sessions Case No. 32/84, wherein the appellant has been convicted for the offence under Section 376/511 I.P.C. and sentenced to five years' R.I. and a fine of Rs. 500/-, in default of which to further undergo three months' R.I. 2. This criminal case was initiated on 13.11.1983, when a report was submitted by Smt. Gaindi to Shri Shyam Sunder, A.S.I., Gangapur City 2 while he was petrolling. The said report was submitted by the informant/mother in respect of her daughter Chhoti, alleging that the accused-appellant had committed offence against her, as aforesaid. It was stated in the report that when the daughter of the informant had gone for call of nature, in the early hours of the morning, the accused-appellant had come and threw the prosecutrix on the ground by catching hold of her neck. It was also stated in the report that cloth was put in the mouth of the prosecutrix and the accused misbehaved with her. It is stated that when Chhoti, while lying down on the ground, raised hue and cry then one Sediya and Hazari came to the place of occurrence and both these persons took away the accused. 3. As the said report was submitted to Shyam Sunder A.S.I. when he was petrolling, he immediately went to the place of occurrence and on his return, he sent the report to the police station with the endorsement, on the reverse side, for registration of the case. Thereafter, an F.I.R. came to be registered (395/83) at about 6.00 p.m. for the offence under 3 Section 376/511 I.P.C. On the conclusion of the investigation, the police submitted challan in the Court of ACJM, Gangapur City. Thereafter, the learned Magistrate committed the case to the Sessions Court at Sawai Madhopur. The case was then transferred to the learned ADJ, Gangapur City and the same was received by it on 15.05.84. 4. The learned trial court after hearing the parties, framed charges against the accused, vide its judgment dated 28.04.84, for the offence under Secton 376/511 I.P.C. The accused denied the charges and claimed for trial. The prosecution had produced 8 witnesses and 9 document, which were duly exhibited before the trial court, in support of its case. Subsequently, the statement of the accused under Section 313 Cr.P.C. were recorded, wherein he stated that the prosecution story is totally false. Accused had specifically stated that the prosecutrix Chhoti and he were working together as labour in the railways. The prosecutrix had borrowed some amount from the accused and it was on account of repayment of the same that a dispute arose between the parties. 4 According to the accused, it was for the said reason that instant case had been falsely registered against him. In the last, the accused had stated that the parties have entered into a compromise and the same has been placed on record. The accused had produced Ratan Lal (DW-1) as a defence witness, who was the person who had got the compromise executed between the parties. 5. The learned trial court had considered, primarily the statements of Smt. Chhoti (PW-2), Smt. Gaindi (PW-3), Sediya son of Chhittar (PW-5) and Dr. Radheshaym Parashar (PW-1). The learned trial court, on the conclusion of the trial and vide its judgment dated 19.04.85, convicted and sentenced the accused- appellant for the offences, as aforesaid. 6. The learned counsel for accused-appellant had submitted that a totally false case had been registered on account of dispute with regard to the loan given to prosecutrix. He had further submitted that the prosecution has failed to prove its case beyond reasonable doubt in respect of the offence of attempt 5 to commit rape. He had stated that the prosecution witnesses Chhoti and Gaindi are the interested persons. So far as, the two independent witnesses are concerned, Hazari (PW-6) had not at all supported the prosecution story and therefore he had to be declared hostile. As regard the other witness, namely, Sediya (PW-5), the learned counsel submitted that he is a close relative of the prosecutrix and his testimony is not reliable. Therefore, the learned counsel for the appellant has submitted that the prosecution has failed to prove its case against the accused-appellant. 7. Moreover, the learned counsel for the appellant has submitted that there is no iota of evidence on record to show that an attempt for commission of the offence of rape had been made by the accused-appellant. He has submitted that at the most it can be a case of preparation for rape or outraging the modesty of the prosecutrix. There is no evidence wherein accused-appellant was unsuccessful in committing rape. 8. The learned Public Prosecutor, while 6 supporting the judgment passed by learned trial court, submitted that the accused-appellant has been rightly convicted and sentenced for the offence of attempt to rape. He has also submitted that the prosecution has proved its case beyond reasonable doubt by the evidence produced before the trial court, particularly that of the prosecution witnesses, Smt. Chhoti, Smt. Gaindi and Sediya. 9. I have given my thoughtful consideration to the rival submissions made by the parties. I have carefully perused the statement of Smt. Chhoti (PW-2), Smt. Gaindi (PW-3) and Sediya (PW-5). The prosecutrix Smt. Chhoti has categorically denied the suggestions made to her by defence counsel that the SHO had initially said that the present case is a false one. Likewise, she has also denied the suggestions that she had borrowed money from the accused while she was working for the railways. Similarly, the testimony of Smt. Gaindi (PW-3) also establishes that the incident had taken place and the accused tried to commit an offence. However, she admitted that the two witnesses Sediya and Hazari are her nephew. The prosecution 7 witness Sediya (PW-5) had also fully established the fact about the incident. Dr. Radheshaym Parashar (PW- 1) has corroborated the injury sustained by Smt. Chhoti. However, he has stated in his cross- examination that injuries like bruise, abrasion, etc. can be self-inflicted and particularly in respect of the injuries No. 2 and 3 he had deposed that they may be self-inflicted The investigation officer Shyam Sunder (PW-8) has also proved the facts regarding the investigation so as to establish that it was done in accordance to law. Therefore, the fact that accused- appellant had met the prosecutrix in the early hours of morning, had caught hold of her and that it was only after the arrival of Sediya and Hazari on hearing of the hue and cry raised that she was able to return home, have been proved by the prosecution. 10. However, the question which remains to be considered is that whether the instant case is a one of rape having been attempted or that the accused- appellant had acted with the intention to commit rape but he was unsuccessful. In order to attract the offence of attempt to rape (under Section 376/511 I.P.C.), the 8 prosecution ought to have brought evidence on record to show that the act of the accused-appellant was somewhat short of the offence of rape or that his action was intended to commit rape but he could not succeed. In this case, the prosecution has come out with the case that the accused-appellant had caught hold of the prosecutrix; threw her on the ground at the place of incident; undressed her by removing the petticoat and then set on her. There is no evidence on record to show that there was any overt act further to the one mentioned above by the accused-appellant so as to commit rape. 11. In my considered opinion, taking into consideration overall facts and circumstances of the case and the evidence on record, the case against the accused is one of outraging the modesty of a woman punishable for offence under Section 354 I.P.C. The provision reads as under: “354. Assault or criminal force to woman with intent to outrage her modesty.-- Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her 9 modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 12. The term outraging modesty of a woman has not been defined in the code. However, the Apex Court has, in number of cases, dealt with the ingredients of the same. In the case of Raju Pandurang Mahale vs. State of Maharashtra, (AIR 2004 Supreme Court 1677), the Apex Court has held with regard to outrage modesty of a female as under:- “What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word ' modesty' is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word 'Modesty' in relation to woman as follows: “Decorous in manner and conduct; not forward or lowe; Shame-fast; Scrupulously chast.” 10 13. Therefore, an act of pulling a woman, removing her saree etc. would amount to outraging the modesty of a woman, coupled with the fact that by such an act the modesty is likely to be outraged, attracts the offence under Section 354 I.P.C. A case of similar situation had come before the High Court of Madhya Pradesh, in the matter of Ankariya vs. State of MP (1991 Cr.L.J. 751). In that case the evidence satisfactory established that the accused removed prosecutrix's cloth and set on her waist in the night of incident. It was held that the act of the accused would constitute not an attempt to commit rape but only preparation for the same. The offence against the accused was therefore said to be one under Section 354 I.P.C., assault or use of criminal force to woman with intent to outrage her modesty. The accused in that case was acquitted of the charge under Section 376/511 I.P.C. but instead convicted under Section 354 I.P.C. In view of the aforesaid circumstances, the prosecution in the instant case has failed to prove its case for the offence under Section 376/511 I.P.C. However, the accused is guilty of the offence under 11 Section 354 I.P.C. 14. As regards the sentence for the offence committed by the appellant, it is to be noted that the instant case relates to the year 1983 and nearly 25 years have already passed. It is the case of the prosecution itself that both the parties are near relatives. The accused-appellant has specifically stated in his statement before the trial court that it was on account of the loan given to the prosecutrix that a dispute had arisen and this false case had been registered against him to counter it. The prosecutrix herself had deposed that she had worked as a labour in the railway for couple of months and at that time she used to travel along with the accused-appellant. Similarly, Smt. Gaindi, the mother of the prosecutrix had also admitted the fact about the working of the prosexutrix as well as the accused-appellant together in the railways. Moreover, a compromise has been entered into between the parties and the same was placed on record of the trial court. Taking into consideration overall facts and circumstances of the case and the nature of the offence having been 12 committed by the accused-appellant, I am of the view that the ends of justice would meet if the appellant is sentenced to the period already undergone for the offence under Section 354 I.P.C. 15. In the result, the appeal is partly allowed. The accused-appellant is acquitted of the charges under Section 376/511 I.P.C. But convicted for the offence under Section 354 I.P.C. In such view of the matter, the accused-appellant is sentenced for the period already undergone. (RAGHUVENDRA S. RATHORE),J. tikam/-Jr.P.A.