Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 114 of 2005 Date of Decision: 9.11.2011. --------------------------------------------------------------------------------------------------------------------- State of H.P. …… Appellant. Versus Devinder Kumar & Ors. ……. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes For the Appellant : Mr. P.M Negi, Deputy Advocate General. For the Respondents : Mr. Dushyant Dadwal, Advocate. Surinder Singh, J. (oral) : The present appeal has been filed by the State against the judgment, passed by the learned trial Court in Case No.159-II/2003, decided on 20.12.2004, whereby the respondent was acquitted, for the offences punishable under Sections 147,341,354,506 read with Section 149 of Indian Penal Code. 2. In short the prosecution case can be stated thus. On 25.6.2003, PW-2 Kushma Devi along with Jagdamba Devi (PW-4), Sapna(PW-5) and one Sudha were returning home after their school was over. They were class-mates studying in 10+1 class. While passing through the place - 2 - known as Malkehar (Bonn), the respondents allegedly pulled their dupattas and held them from their arms. They also clicked their photographs. When PW-6 Suresh Kumar, who was also student of the same school, objected to it they threatened him with dire consequences . The girls students were scared and ran away. 3. PW-4 Jagdamba made a complaint to her father Sh. Sawan Mal (PW-1). PW-1 inquired about the incident from other girls and also from Suresh Kumar aforesaid. All of them confirmed the correctness of the said incident but they only knew respondent Devinder Kumar alias Ajay. As such, he made a report Ex. PW-1/A to the police which culminated into FIR Ex. PW-7/A under the aforesaid Sections. 4. Police investigated the case and took into possession one Yashika camera from accused Devinder Kumar alias Ajay. Police also prepared site plan Ex. PW- 9/A of the place of occurrence. 5. After recording the statement of witnesses under Section 161 of Cr. P.C, the challan was completed and accused persons were sent up for trial. - 3 - 6. At the end of the trial, the respondents were acquitted on the ground of delay in lodging the FIR, contradictions in the statement of witnesses and also that except accused Devinder Kumar alias Ajay no one no one could be identified properly. In so far as accused Devinder alias Ajay is concerned there were acrimonious relations between father in law of his sister with the complainant party. 7. Heard and gone through the record. 8. PW-1 Sawan Mal is not an eye witness. He was only informed by his daughter (PW-4) about the incident to which he got confirmed from her class-mates. However, he stated that one of the accused persons, was Ajay who was identified by the girls. 9. PW-2 Kushma Devi stated that the accused persons had tried to snatch their dupattas and caught hold of them from their arms and took photographs. He also stated that the respondent had outraged the modesty by the above acts. Though, in cross- examination she admitted that the relation between PW- 1 and father-in-law of sister of accused Devinder Kumar alias Ajay were not cordial for last about 7 years. - 4 - 10. PW-4 Jagdamba corroborated her version and stated that she only identified Devinder Kumar alias Ajay and other were not seen by her earlier to the said incident. Similar is the statement of PW-5. Even PW-6 Suresh Kumar has lent support to their version by testifying that the accused persons had misbehaved with the girls and tried to take the photographs. His statement qua identification of respondents is vague but he could only identify Ajay Kumar who used to visit the house of his sister in the village. 11. PW-9 Hoshiar Singh , Investigating Officer, stated that during investigation of this case, it did not come to his notice that the accused persons had committed any offensive act except the above. In their statement under Section 313 of Code of Criminal Procedure they denied the incident. 12. On the critical examination of the aforesaid evidence, it transpires that after the incident complainant inquired about the incident from other witnesses before lodging the complaint which took time in lodging the FIR with the Police. Unless true facts are ascertained, the complainant did not want to make any report to the police. Therefore, in these circumstances, I find that the - 5 - delay in the light of above fact is not fatal to the prosecution. In so far as the accused persons are concerned, there is no cogent and reliable evidence in respect to the involvement of respondents except Devinder Kumar alias Ajay who was specifically named in the complaint and also by PW-2 Kushma Devi PW-4 Jagdamba and PW-5 Sapna during the trial. They are consistent in their statement in so far as the snatching of the dupatta of the said witnesses and catching them from their hand is concerned. The learned counsel for the respondent submitted even if the story is admitted to be true on its face value but, there was no element of criminal intent. Thus the offence under Section 354 of IPC is not attracted. It is also argued that culpable intention of accused is the crux of the matter and not the consequences thereof. 13. I have examined the contention. To appreciate, Section 354 of IPC requires consideration. It 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 modesty, shall be punished - 6 - with imprisonment of either description fro a term which may extent to two years, or with fine, or with both.” 14. The word “modesty” has not been defined in the Indian Penal Code. From the dictionary meaning of modesty interpretation given to that word by Supreme Court in State of Punjab Versus Major Singh AIR 1967 SC 63, it appears that “modesty” has been outraged is the action of the offender, as such offender was intended to or was known to be likely to outrage the modesty of the woman. In view of the facts and circumstances of the case as discussed above, I find that the alleged act by Devinder Kumar alias Ajay Kumar in snatching the dupatta and catching hold of the girl(s) from her/their arms amount to outraging her/their modesty, though it was not affront to the normal sense of decency and also dignity of the lady but the other circumstances proved on record make the criminal intent of the said accused clear to commit the offence. Therefore, in my opinion, the prosecution has been able to prove the case only against Devinder Kumar alias Ajay for the offence under Section 354 of IPC and not under the other sections charged. - 7 - 15. So far the other accused persons are concerned, there is no clinching evidence with respect to their identification and involvement and as such they are entitled for the benefit of doubt. 16. For the aforesaid reasons the acquittal of Devinder Kumar alias Ajay recorded by the learned trial Court is perverse, accordingly his acquittal is set aside and held guilty for offence punishable under Section 354 of Indian Penal Code thus, stands convicted for the offence. 17. Confronted with the above situation, the learned counsel for respondent Mr. Dushyant Dadwal vehemently argued that the alleged incident had taken place in the year 2003 i.e, 8 years have been elapsed. Now Devinder Kumar alias Ajay Kumar convict is serving in the army and settled down in life. At the time of alleged offence, he was around 21 years of age, therefore, he may be given the benefit of Probation of Offenders Act as the sentence of imprisonment would mar his career. 18. Sh. P.M Negi, learned Deputy Advocate General admits the above situation and submitted that keeping in view the facts and circumstances of the case appropriate orders may be passed. - 8 - 19. Keeping in view the extenuating and exaggerating the age and also the fact that convict is now serving in the Indian army, the ends of justice will be fully met in case he is given benefit of Section 3 of Probation of Offenders Act. Accordingly Devinder Kumar alias Ajay is admonished. The appeal filed by the State is partly allowed and stands disposed of. 20. Send down the records. November 9, 2011 (Surinder Singh) (Priti) Judge.