HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.R.C.No.1749 of 2004 Date: 01-07-2010 Between Mallapuram Koteswara Rao @ Bujji ……….. petitioner And State of A.P. rep by its Public Prosecutor. ……… Respondent HON’BLE SRI JUSTICE B. CHANDRA KUMAR Crl.R.C.No.1749 of 2004 ORDER: This Revision Case is directed against the Judgment, dated 06- 10-2004 in Crl.A.No.113 of 2003 passed by the V Additional District and Sessions Judge, Guntur, whereby and whereunder the Appellate Court dismissed the Appeal confirming the order, dated 20-02-2003 in S.C.No.490 of 2002 passed by Additional Assistant Sessions Judge, Tenali, convicting the petitioner/A-3 for the offence under Section 354 of IPC and sentencing him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for four months. 2. The brief facts of the case are as follows: On 26-06-2001 at abut 5-30 PM, the petitoner/A-3 along with other Accused went to the house of PW-1 and abused her family members for their admonishing A-2 on the night of 25-06-2001. A-3 beat PW-1 on her back and head with hands and threatened to commit rape on her and thereby insulted her modesty. A-1 beat PW-2 on his neck and back with hands and later all the Accused left the place abusing PW-1 and her family members. At the time of incident, PW-5, the husband of PW-1, was not in the house and therefore, after his return to the house, they went to the Police Station and presented Ex.P-1 report, basing on which the police registered Crime No.45 of 2001 for the offences punishable under Sections 509, 506 and 323 read with 34 of IPC, and after completion of investigation, they filed charge sheet. The Accused denied the charge levelled against them and claimed to be tried. 3. The prosecution, in order to prove its case, examined PWs.1 to 6 and got marked Exs.P-1 and P-2. On defence side, none were examined and no documents were marked. The Courts below accepted the case of the prosecution and convicted and sentenced the petitioner/A-3 as stated above. Being aggrieved by the same, the present Revision Case has been filed. 4. The main contention of the learned counsel for the petitioner is that the prosecution has examined only interested witnesses and even though independent witnesses were available, they were not examined. It is also his case that initially the police filed charge sheet for the offences punishable under Sections 509, 506 and 324 read with 34 of IPC, but during trial, on an Application filed by the Assistant Public Prosecutor Grade-I, the trial Court observed that the evidence of PW-1 make out an offence under Section 354 of IPC and, accordingly, has taken cognizance for the offence under Section 354 of IPC and committed the case to the Sessions Court. His further submission is that the Courts below have not taken into consideration the material contradictions and omissions in the evidence of the prosecution witnesses. He further submitted that the allegation of pulling saree of PW-1 by the petitioner was not the original case of the prosecution and that PW-1 in her complaint in Ex.P-1 or in her statement before the police did not state that the petitioner pulled her saree. It is also his submission that mere abusing or beating a woman does not make out the offence under Section 354 of IPC. 5. The learned Additional Public Prosecutor supported the Judgments of the Courts below and submitted that the petitioner/A-3, by threatening to commit rape on PW-1, beat her on head and back and used abusive words and it shows the intention of the petitioner/A-3 to outrace the modesty of PW-1 and therefore, the offence under Section 354 of IPC has been made out and the Courts below rightly convicted and sentenced him for the said offence. 6. In view of the rival contentions, the only point that arises for consideration is whether the prosecution has proved its case and whether the offence under Section 354 of IPC has been made out against the petitioner or not and if not, what is the offence made out? 7. As seen from the evidence let in, PW-1 is a resident of Tenali. PW-2 is her son, PWs.3 and 4 are her daughters, and PW-5 is her husband. PW-6 is the Investigating Officer. According to PW-3 on 25-06-2001 at about 11-30 or 12-00 midnight she was sleeping on the terrace of their house and that PWs.1, 2, 4 and 5 and her paternal grandparents were also sleeping on the terrace. Her specific case is that while she was sleeping, A-2 placed his hand on her and due to fear she raised cries and on hearing her cries, her family members woke up. A-2 tried to run away. However PW-2 caught hold of him. Then her family members chastised A-2 and sent him away. 8. According to PW-1, on 26-06-2001 at about 5-30 PM, A-1 to A-3 came to her house in a drunken state and tried to assault PW-2 and beat him with a chisel and he sustained small abrasion on his neck. According to her, when she intervened, A-3 abused her saying that nobody would come to her rescue if he raped her and saying so, he fisted on her back and head and also pulled her saree. It is also her case that A-1 and A-2 beat PW-2 with hands. Her further case is that her husband (PW-5) was not present when the incident took place on 26-06-2001. However her neighbours namely Sahara Begum and Ponugupati Bharathi and several other persons witnessed the occurrence, but they did not come to her rescue due to fear of the Accused. According to her, after her husband returned to house, he prepared Ex.P-1, complaint, and that she signed on it and lodged the same with the police. 9. PW-6, the Investigating Officer, deposed that on 26-06-2001 at about 8-30 PM, PW-1 came to the police station and presented Ex.P-1, complaint, basing upon which he registered a case in Crime No.45 of 2001 for the offences punishable under Sections 509, 506 and 323 read with 34 of IPC an issued FIR in Ex.P-2. According to him, he visited the scene of offence and examined PWs.1 to 5 and one Venkatramana, Sahara Begum, Penugupati Parvathi and recorded their statements. 10. According to PW-2, on the date of incident, the Accused came to their house in a drunken state and they beat him on his neck and back and he sustained injury due to the assault caused by A-2 with a chisel. He has also deposed that A-3 abused her mother (PW-1) saying that nobody would come to her rescue if she is raped and beat her with hands on her back. 11. PWs.3 and 4 have also corroborated the evidence of PW-1 with regard to the abusive language used by A-3 against her and assault made on her. PW-5 was not present at the time of incident. 12. Now it has to be seen whether the prosecution witnesses have improved their case to bring the acts of A-3 within the purview of Section 354 of IPC. PW-1 admitted that she did not state before the police and in Ex.P-1, complaint, that A-3 pulled her saree. We are not concerned in this Revision with the overt acts attributed to the other Accused. PW-6, the Investigating Officer, also admitted that PW-1 did not state before him that A-3 pulled her saree. Thus it is clear that the allegation of pulling saree of PW-1 is not mentioned in Ex.P-1, complaint, or in her 161 (3) Cr.P.C. statement made before the police. When such is the case, it is clear that the prosecution witnesses have improved their version as far as the allegation of pulling saree of PW-1 by A-3 is concerned. 13. It is the settled law that the Accused must have an intention to outrace the modesty of a woman. Mere using abusive words or beating a woman does not attract the ingredients of Section 354 of IPC. In order to prove the offence under Section 354 of IPC, there must be assault or use of criminal force to any woman with an intention or knowledge that the woman’s modesty will be outraged. The act committed should be capable of shocking the sense of decency of a woman. 14. In view of the above discussion, it is clear that the offence under Section 354 of IPC is not made out. However, the evidence of PW-1, which has been corroborated by the evidence of the other witnesses, clinchingly establishes that the petitioner/A-3 beat her on head and back. Thus it is clear that the petitioner/A-3 committed the offence under Section 323 of IPC. Though the petitioner appears to have committed an offence punishable under Section 509 of IPC, admittedly no charge was framed against him for the said offence. 15. Therefore, the conviction and the sentence imposed on the petitioner/A-3 for the offence under Section 354 of IPC is set aside. However, he is liable to be convicted for the offence under Section 323 of IPC. 16. So far as the sentence of imprisonment is concerned, it appears from the record that the petitoner/A-3 was in jail from 06-10- 2004 to 13-10-2004 since he was granted bail on 12-10-2004 by this Court. For the offence under Section 323 of IPC, A- 2 and A-3 were sentenced to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for four months. In the circumstances, the petitioner-A-3 is convicted for the offence under Section 323 of IPC and is sentenced to the period of imprisonment already undergone by him and also to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for four months. It is submitted that the petitoner/A-3 has already paid fine amount of Rs.1,000/-. 17. Accordingly, the Criminal Revision Case is allowed in part to the extent of modifying the conviction and the sentence as indicated above. ___________________ B. CHANDRA KUMAR, J Date: 01-07-2010 YCR