IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 39 of 2004 Date of Decision: 20th September, 2010 __________________________________________________________ Sanjeev Kumar ….Petitioner. Versus State of HP ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. ___________________________________________________________ For the Petitioner: Mr. Rakesh Jaswal, Advocate For the Respondent: Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioner is charged for offences under Sections 354, 323 and 506 of the Indian Penal Code. The learned trial Court, on consideration of the evidence on record especially of prosecutrix PW1 Promila and PW2 Nikka Ram, convicted the petitioner. In appeal, the learned Sessions Judge confirmed the sentence though it was submitted before him that there was discrepancy in the statements of the prosecution witnesses and in these circumstances, no reliance could be placed on the case of the prosecution. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. The prosecution case, in brief, is that on 7.3.1996 around 7 A.M. at village Chhat, the accused-petitioner assaulted Promila Devi with intention to outrage her modesty. He forcibly kissed her, manhandled her breasts, threatened to subject her to rape. She raised an alarm and was rescued by the people who gathered there after hearing her cries. FIR Ext.PW1/A was registered with the Police Station. 3. The torn shirt of the prosecutrix Ext.P1 was taken into possession by the police in the presence of witnesses Nikku Ram and Jagtamba Ram. The prosecutrix was medically examined at Primary Health Centre, Berthin by PW6 Dr. Rajesh Kumar, who found scratches on the hands of prosecutrix and bruises measuring 10x1 cm on the supra mammary area of left side of the chest and some injuries on the left ear. In cross examination, it was suggested to the Doctor that such injuries on the mammary area/chest can be caused while wearing a tight bra, which suggestion was denied by him. 4. The prosecutrix in her evidence corroborated the statement made by her before the police. She testified that on 7.3.1996 she was going to Berthin for computer training. At around 7 AM when she was walking through a short-cut, she saw the accused standing with a scooter on the road side. When she tried to cross, the petitioner slapped her and caught hold her from her arms and started kissing her. He then threatened to violate her chastity. She rescued herself from his clutches, but he again chased her and caught hold of her from her breasts and caused injuries to her. She raised a hue and cry, whereupon Nikku Ram and Jagtamba Ram came to the spot and rescued her from the clutches of the petitioner. He again threatened the prosecutrix that he would violate her chastity as and when he would get an opportunity. A number of suggestions have been put to her including the fact that there are inimical 3 relations between her and the family members of the petitioner because of some case in which the petitioner had appeared as a witness. 5. PW2 Nikku Ram, the other eye witness states that he was on a morning walk when he heard a hue and cry near the shop of Cooperative Society. He saw that the accused had caught hold of the complainant from behind and they were slapping each other. At that time, Jagatmba reached the spot and both were separated. 6. The mother of the prosecutrix PW3 Sita Devi states that the accused had outraged the modesty of her daughter. She saw the torn shirt of the prosecutrix and the marks of injury on her body. 7. PW6 Dr.Rajesh Kumar has examined the prosecutrix and found the following injuries: i) Scratches over 1st I.P. joint of little finger on the dorsum of right hand. No bleeding scab present over the scratches. No ecchimosis present around it; ii) Linear bruise, three in number 10 x 1 c.m. over the supra mammary area of left side of chest; iii) Complaint of pain in the left ear. On examination, no bleeding was present. Tympanic was normal. No evidence of any injury to the ear. 8. In defence, the petitioner has produced one witness Smt. Kalpana Devi DW1, who states that on 7.3.1996, on the day of the incident, Parkash Chand and his wife visited her house around 7 AM and told her that Kumari Parmila(complainant) and Sanjeev (accused) had quarreled with each other. She (DW1) and Naginder (DW2) reached the spot around 2.30 P.M. where Parmila, her mother and Parkash Chand were present. Both the parties compromised the matter and stated that now there were no bad feelings between them. 4 9. The learned trial Court on the basis of the evidence on record convicted the petitioner. This conviction has been confirmed by the learned Appellate Court. 10. Learned counsel appearing for the petitioner urges that the Courts below were not right in holding that the case of the prosecution was proved on the evidence on record. In particular, he refers to the contradictions in the evidence of prosecution witnesses, who appeared as PW1 Parmila Devi and PW2 Nikka Ram. According to learned counsel, Nikka Ram PW2 had only seen the petitioner and prosecutrix fighting with each other, hitting and slapping each other and not touching the prosecutrix on any part of her body, which would constitute an offence under Section 354 IPC. He submits that there is no deliberate attempt by the petitioner to assault Parmila Devi in a manner from which it can be inferred that he infact intended or had knowledge that it would outrage her modesty. I cannot accept this submission. PW2 is clear in his testimony when he states that accused had caught hold the prosecutrix from the back. In these circumstances, it is but obvious that he was touching her and feeling her, which act would constitute an offence under Section 354 IPC. The injuries on her breast further fortify this conclusion. 11. Adverting to the statement of PW1 Parmila Devi, she is clear and cogent in her evidence when she states that in the first instance, the accused caught hold of her and started kissing her and threatened to violate her chastity. She then states that when she freed herself from his clutches, he chased her and caught hold of her from her breasts causing injuries to her breast(s). This part of testimony has been corroborated by PW6 Dr. Rajesh Kumar. The medico legal certificate Ext.PW6/A is also clear and suggestion to this Doctor that these injuries could be caused while wearing a tight bra has been denied by him. The torn shirt Ext.P1 5 also speaks volumes in the manner in which the prosecutrix had been assaulted. In Rupan Deol Bajaj (Mrs.) and another vs. Kanwar Pal Singh Gill and another (1995) 6 SCC 194 the Supreme Court considered the essential ingredients of Section 354 IPC holding:- “14. Since the word ‘modesty’ has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct”. The word ‘modest’ is relation to woman is defined in the above dictionary as “decorous in manner and conduct; not forward or lewd; shamefast.” Webster’s Third New International Dictionary of the English Language defines modesty as “freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1933 Edn.) the meaning of the word ‘modesty’ is given as “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions”. 15. In State of Punjab v. Major Singh AIR 1967 SC 63 a question arose whether a female child of seven and a half months could be said to be possessed of ‘modesty’ which could be outraged. In answering the above question Mudholkar, J., who along with Bachawat, J. spoke for the majority, held that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the “common notions of mankind” referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat, J.) observed that the essence of a woman’s modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of ‘modesty’ and the interpretation given to that word by this Court in Major Singh case it appears to us that the ultimate test for ascertaining whether modesty has been outraged is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. When the above test is applied in the 6 present case, keeping in view the total fact situation, it cannot but be held that the alleged act of Mr. Gill in slapping Mrs. Bajaj on her posterior amounted to “outraging of the modesty” for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady-“sexual overtones” or not notwithstanding.” (at p. 205-206) In Raju Pandurang Mahale vs. State of Maharashtra and another, (2004) 4 SCC 371, the Court ruled: “11. Coming to the question as to whether Section 354 of the Act has any application, it is to be noted that the provision makes penal the assault or use of criminal force on a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are: (a) That the assault must be on a woman. (b) That the accused must have used criminal force on her. (c) That the criminal force must have been used on the woman intending thereby to outrage her modesty. 12. 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 (3rd Edn.) defines the word “modesty” in relation to a woman as follows: “Decorous in manner and conduct; not forward or lewd; Shamefast; Scrupulously chaste.” 13. Modesty is defined as the quality of being modest; and in relation to a woman, “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct”. It is the reserve or sense of shame proceedings from instinctive aversion to impure or coarse 7 suggestions. As observed by Justice Patteson in R. v. James Lloyd (1836) 7 C&P 317. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her. 14. Webster’s Third New International Dictionary of the English language defines modesty as “freedom from coarseness, indelicacy or indecency: a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1933 Edn.), the meaning of the word “modesty” is given as “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.” 15. In State of Punjab v. Major Singh AIR 1967 SC 63 a question arose whether a female child of seven-and-a-half months could be said to be possessed of “modesty” which could be outraged. In answering the above question the majority view was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the “common notions of mankind” referred to have to be gauged by contemporary societal standards. It was further observed in the said case that the essence of a woman’s modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of “modesty” and the interpretation given to that word by this Court in Major Singh Case the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. The above position was noted in Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) 6 SCC 194. When the above test is applied in the present case, keeping in view the total fact situation, the inevitable conclusion is that the acts of the accused-appellant and the concrete 8 role he consistently played from the beginning proved combination of persons and minds as well and as such amounted to “outraging of her modesty” for it was an affront to the normal sense of feminine decency. ……………………………….” (at p.376,377 & 378) To similar effect is the decision in Vidyadharan Vs. State of Kerala (2004) 1 SCC 215, rules: “8. ……. When a plea is taken of false implication, courts have a duty to make deeper scrutiny of the evidence and decide the acceptability or otherwise of the accusations. In the instant case, both the trial court and the High Court have done that. There is no scope for taking a different view. 9. In order to constitute the offence under Section 354 mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. There is no abstract conception of modesty that can apply to all cases. (See State of Punjab v. Major Singh AIR 1967 SC 63). A careful approach has to be adopted by the court while dealing with a case alleging outrage of modesty. The essential ingredients of the offence under Section 354 IPC are as under: (i) that the person assaulted must be a women; (ii)that the accused must have used criminal force on her; and (iii) that the criminal force must have been used on the woman intending thereby to outrage her modesty. 10. Intention is not the sole criterion of the offence punishable under Section 354 IPC, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight. In the instance case 9 after careful consideration of the evidence, the trial court and the High Court have found the accused guilty…………” (at p.220-221) The manner of assault on the prosecutrix PW1 in this case leaves no doubt in my mind that the petitioner was aware about what he was doing and the acts either in isolation or in totality, constitute an attempt and consummation of acts to outrage the modesty of the complainant within the meaning of Section 354 IPC. Manhandling the breasts of the prosecutrix and kissing her forcibly constitute acts covered by Section 354 IPC. Learned counsel appearing for the petitioner urges that since the offence had taken place in the year 1996, the petitioner should be given the benefit of the provisions of Probation of Offenders Act more especially since how he is married and is having a family. 12. I cannot accept this submission more especially when the trial Court held on the report of the Probation Officer that two other cases are pending against the petitioner. However, keeping in view the decision of the Supreme Court in Rupan Deol Bajaj vs. Kanwar Pal Singh Gill, (2005) 6 SCC 161, I hold that sentence of imprisonment imposed on the petitioner is set aside and I direct that the petitioner shall pay a sum of Rs. 45,000/- to the prosecutrix. This amount shall be deposited by the petitioner before the learned trial Court within a period of three months from today. It is clarified that in case of non-deposit of compensation, the sentence of imprisonment shall revive. The amount when deposited shall be paid to the prosecutrix by the learned trial Court. Revision petition stands disposed of. Bail bonds furnished by the petitioner stand discharged. (Dev Darshan Sud) Judge September 20th , 2010(ms)