Criminal Force applied on a woman with intention to outrage her modesty completes Section 354 of IPC. : Jharkhand High Court

Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 Jharkhand High Court Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 9413 Rita Devi wife of Triloki Das resident of Village Bara Sanghra P.O. and P.S. Madhupur District Deoghar ... ... Petitioner Versus 1. The State of Jharkhand 2. Suresh Das son of Jaleshwar Das resident of Village Bara Sanghra P.O. and P.S. Madhupur District Deoghar ... ... Opposite Parties Cr. Rev. No. 9113 Suresh Das s o Sri Jaleswar Das r o Village Bara Sanghra P.O Pathrol P.S. Madhupur Dist. Deoghar ... ... Petitioner Versus 1. State of Jharkhand 2. Rita Devi w o Triloki Das r o Mauza Bara Sanghara P.S. Madhupur Dist. Deoghar ... ... Opposite Parties CORAM :HON BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY In Cr. Rev. No. 9413 For the Petitioner : Mr. Sudhanshu Kumar Deo Advocate For Opp Party No. 2 : Mr. Prakash Chandra Advocate For the State : Mr. Ravi Prakash A.P.P In Cr. Rev. No. 9113 For the Petitioner : Mr. Prakash Chandra Advocate For Opp. Party No. 2 Mr. Sudhanshu Kumar Deo Advocate For the State : Mr. Ravi Prakash A.P.P Through Video Conferencing 10 21.06.2021 Heard Mr. Sudhanshu Kumar Deo learned counsel appearing on behalf of the petitioner in Cr. Rev. No. 9413. He is appearing on behalf of the opposite party no. 2 in Cr Rev. No. 9113 Indian Kanoon Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 2. Heard Mr. Prakash Chandra learned counsel appearing on behalf of the petitioner in Cr. Rev. No 9113. He is appearing on behalf of the opposite party no. 2 in Cr. Rev. No. 9413 3. Cr. Rev. No. 9113 has been filed by the convict and Cr. Rev. No. 9413 has been filed by the informant of the case. These two criminal revision petitions arise out of judgement dated 10.07.2013 passed in Criminal Appeal No. 709 by 1st Additional Sessions Judge Deoghar whereby the learned appellate court has dismissed the appeal filed by the accused and has additionally convicted and sentenced the petitioner accused under Section 323 of Indian Penal Code. The petitioner has been additionally sentenced to undergo Rigorous Imprisonment for six months and fine of Rs. 5 000 and in default to undergo Simple Imprisonment for one month under Section 323 of Indian Penal Code. The appellate court confirmed the conviction and sentence of the petitioner for Rigorous Imprisonment for a period of one year under Section 354 of Indian 4. The petitioner in Cr. Rev. No. 9113has also challenged the judgement and order of conviction and sentence dated 14.07.2009 passed by learned Judicial Magistrate Ist Class Madhupur at Deoghar in P.C.R. Case No. 907 and T.R. Case No. 5909 whereby the petitioner was convicted under Section 354 of Indian Penal Code and sentenced to undergo Rigorous Imprisonment for a period of one year 5. Upon perusal of the judgements passed by the learned trial court and learned appellate court it appears that the accused was tried for offence punishable under Sections 323 and 354 of Indian Cr. Rev. No. 9413 6. At this stage the learned counsel appearing on behalf of the petitioner in Cr. Rev. No. 9413 who was the informant of the case seeks permission to withdraw the criminal revision and does not want to press the same 7. The learned counsel appearing on behalf of the State as well as the opposite party No. 2 in Cr. Rev No. 9413 have no objection to the prayer made 8. Accordingly Cr. Rev. No. 9413 is dismissed as not pressed Cr. Rev. No. 9113 Arguments of the petitioner 9. Learned counsel appearing on behalf of the petitioner submits that the petitioner was convicted under Section 354 of Indian Penal Code by the learned trial court but was acquitted for offence under Section 323 of Indian Penal Code. He further submits that there was no cross appeal or acquittal appeal filed by the State or the informant against the acquittal of the petitioner under Section 323 of Indian Penal Code. He submits that in absence of any cross appeal or acquittal appeal filed by the State or the informant the learned appellate court could not have convicted the petitioner under Section 323 of Indian Penal Code. The learned counsel submits that the appellate Indian Kanoon Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 court has convicted the petitioner under Section 323 as well as upheld the conviction and sentence of the petitioner under Section 354 of I.P.C. passed by the learned trial court 10. The learned counsel while referring to the operative portion of the appellate court s judgement submits that while upholding the judgement of conviction of the petitioner by the learned trial court conviction under Section 354 of Indian Penal Code) the learned appellate court has referred to Sections 323 and 454 of Indian Penal Code and also held that the petitioner has committed offence under Sections 323 345 and 454 of Indian Penal Code but no charge was framed under Section 454 of IPC. As section 354 of IPC has not been mentioned in para 9 the operative portion of the impugned judgement it cannot be said that the conviction of the petitioner under section 354 has been upheld by the learned appellate court. It is submitted that in view of the aforesaid facts and circumstances the impugned judgement is not sustainable in the eyes of law and is fit to be Arguments of the State 11. At this stage learned counsel appearing on behalf of the opposite party State submits that upon complete reading of para 9 of the appellate court s judgement it is apparent that the learned appellate court has upheld the conviction of the petitioner passed by the learned trial court and admittedly the petitioner was convicted by the learned trial court for offence under Section 354 of Indian Penal Code for which the petitioner was sentenced for one year. He submits that additionally the appellate court has convicted the petitioner under Section 323 of Indian Penal Code. The learned counsel for the State submits that mentioning of Section 345 instead of 354 in para 9 of the appellate court s judgement is apparently a typographical error as the appellate court clearly records upholding of the conviction of the petitioner by the trial court 12. The learned counsel further submits that so far as the conviction under Section 323 of Indian Penal Code by the learned appellate court is concerned it is not in dispute that no cross appeal or acquittal appeal was filed against acquittal of the petitioner by the learned trial court under Section 323 IPC either by the state or by the informant. He does not dispute the fact that in absence of any acquittal appeal or cross appeal the appellate court could not have convicted the petitioner under Section 323 IPC as that would amount to reversal of the acquittal of the petitioner under Section 323 of Indian Penal Code Findings of this Court 13. Upon perusal of the case record it appears that the complainant and the petitioner are co villagers and the petitioner is the neighbour of the complainant. It is alleged that in the night of 22.03.2007 at about 11 p.m. the complainant came out along with her dewar from her house to attend to her natural call. In the meantime petitioner armed with pistol trespassed into the courtyard of the complainant having made preparation for causing hurt and pointed the pistol on the head of the complainant by using criminal force and the accused caught hand of the complainant and began to drag her with intention to outrage her modesty. The complainant raised alarm and she along with her dewar protested the illegal act of the petitioner and then the complainant and her Indian Kanoon Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 dewar were assaulted by the petitioner with fists and slaps which caused injury. It is further alleged that another witness i.e. the husband of the complainant also came on the spot upon raising alarm by the complainant and thereafter the petitioner fled away leaving behind his slipper. It has also been stated that at the time of occurrence C.W. 3 and 4 who are the father in law and mother in law of the complainant were in Bengal. Upon information they came and thereafter they went to Madhupur police station but the police did not register a case and ultimately the complaint was filed. The complaint was instituted on 26.03.2007 before the court of learned S.D.J.M. Madhupur at Deoghar and was registered as P.C.R. Case No. 907 for offence under Sections 323 354 and 452 of Indian Penal Code against the petitioner 14. After recording the statement of the complainant on solemn affirmation the case was sent for further enquiry to another court who found a prima facie case for offence under Sections 323 and 354 of Indian Penal Code against the present petitioner. The petitioner appeared before the court and the substance of accusation was explained to the petitioner in Hindi on 06.07.2007 to which he pleaded not guilty and claimed to be tried 15. During the trial altogether five witnesses were examined on behalf of the complainant. C.W. 1 is the husband of the complainant C.W. 2 is the brother in law of the complainant C.W. 3 is the father in law of the complainant C.W. 4 is the mother in law of the complainant and C.W. 5 is the 16. The complainant who was examined as C.W. 5 stated in her examination in chief that the incident had taken place on the fateful day at 11 p.m. and C.W. 2 had taken her for urinal and she went along with him. At that point of time the petitioner crossed the boundary and came in the courtyard and caught her and told her to go outside with him. On her protest the petitioner began abusing and pointed the pistol over her cheek upon which C.W. 2 made noise and accused began to run away after leaving his slipper. Upon hearing the noise the other person also came and her in laws were informed who came later and went to concerned police station along with her. She claimed to identify the petitioner. During her cross examination she admitted that there was no enmity with the family of the accused and she denied the suggestion that the petitioner had not caught her hand with ill intention 17. So far as C.W. 1 is concerned he has supported the prosecution case so far as the time and place of incident is concerned. However this witness has stated that his wife told him for urinal and he had taken his wife and then accused had entered the campus and began to pull his wife by catching her hand. He further deposed that the accused pointed out a revolver and assaulted his wife and then fled away leaving his Slipper. He has also deposed that on alarm the villagers assembled but they would not depose because the accused may beat them. In his cross examination he further admitted that his wife went for urinal alongwith his brother. He has also stated in his cross examination that he went on alarm being raised and saw the accused in his campus and then the accused fled away 18. C.W. 2 the brother in law of the complainant has also supported the prosecution case so far as time manner and place of occurrence is concerned but he deposed that at the relevant time he Indian Kanoon Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 wanted to go for urinal and for that he told his brother who told him to go with the complainant and he went to the courtyard with the complainant. At that time the petitioner crossed the boundary and entered in his campus and began to pull the complainant towards outside and when he made noise the accused slapped him and pointed his pistol. At that time his brother i.e. husband of the complainant also came there and the petitioner fled away leaving his slipper. This witness has also been thoroughly cross examined by the defence 19. The learned trial court discussed the evidences on record and also considered the inconsistencies or contradictions in the evidences and held that all the witnesses have supported the occurrence that the petitioner entered into the courtyard of the complainant at 11 p.m. in the night and caught her hand and pulled her towards outside. The learned trial court also recorded that the victim has fully supported the allegation against the petitioner and her testimony is consistent and does not suffer from any serious contradictions. The learned trial court also recorded that the complainant has clearly stated that the petitioner caught her hand and pulled her towards outside and on her protest he pointed out pistol and as such the learned trial court did not find any reason to disbelieve the testimony of the complainant victim. The learned trial court also recorded that the defence was given opportunity to produce its defence evidence and the defence had not led any evidence. It further recorded that the defence had not whispered anywhere about previous enmity with the petitioner and rather the complainant had clearly deposed that there was no previous enmity with the petitioner and accordingly rejected the plea of false implication also. However the learned trial court in para 19 of its judgement recorded that from the perusal of the deposition of the complainant it transpired that she had not stated that the petitioner had beaten her by fists and slaps and even she had not stated that her brother in law was assaulted by the petitioner. Under such circumstances the trial court was of the view that the allegation under Section 323 of Indian Penal Code was not proved against the petitioner beyond all reasonable doubt. The learned trial court recorded its specific finding in the concluding paragraph 20 of the trial court judgement which reads as under 20. So far the allegation under Section 354 of the I.P.C. is concerned it clearly transpires from perusal of all the witnesses that they have consistently supported that accused Suresh Das had caught the hand of the complainant in the night at 11:00 p.m. and pulled her towards outside but on hulla he fled away. The offence under Section 354 of the I.P.C. is complete when the accused uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty. In this case the complainant has fully supported the allegation against the accused for the offence under Section 354 of the I.P.C. which has been fully supported and corroborated by the other witness of occurrence also. Therefore on the basis of aforesaid discussions and evidences as well as considering submissions of both the parties it can be clearly said that the complainant has been able to prove the allegation for the offence under Section 354 of the I.P.C. against accused beyond all reasonable doubts hence 20. Thus the trial court convicted the petitioner only under Section 354 of Indian Penal Code and found that the prosecution has not been able to prove the offence under Section 323 of Indian Penal Indian Kanoon Code beyond all reasonable doubt Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 21. The appellate court also considered the evidences on record including the contradictions in the evidences of the witnesses and rejected the arguments advanced on behalf of the appellant. The learned appellate court also recorded that the learned trial court committed error in finding that the offence under Section 323 of Indian Penal Code was not made out. The learned appellate court recorded its findings and also further convicted the petitioner under Section 323 IPC and upheld the conviction and sentence passed by the learned trial court. The learned appellate court also recorded that no charge was framed under Section 454 of Indian Penal Code although the ingredients of the offence under section 454 IPC were present and accordingly did not proceed to record order of conviction sentence under section 454 IPC. Paragraph 9 of the appellate court judgement reads as 9. The findings of learned trial court on the point of conviction only u s 354 I.P.C. is correct but the learned trial court has committed error in their finding after leaving sentence u s 323 I.P.C. because both the victim deposed in one tone that the accused assaulted them by fists and there is no possibilities of independent witness. Therefore the ingredients of section 323 I.P.C. is on the record For the application of section 323 I.P.C. only ingredient is voluntarily caused bodily pain to the victim and accused is so with intention to causing hurt or with the knowledge that he would hereby caused hurt to the victim. Therefore if the ingredients available on the record but not appreciated by the learned Magistrate then it is an error in the eye of law. Here is also no any fact and circumstances that why she made any false allegation while there is no previous enmity with the accused. And he is her neighbour. The allegation of out rage her modesty in Indian society is destroyed her whole peace of her life and the accused entered in to her boundary with an intention to made outrage her modesty and on her protest he assaulted and taken on point of pistol. The act of the accused fulfill all ingredients of Sec. 323 & 454 I.P.C. Lurking house trespass. It is a grievous offence and ingredient is 1. lurking house trespass 2. and commit an offence punishable with imprisonment. In this case the accused entered in the boundary in the night and caught hold her arms and force to take her out. The two facts fulfilled the requirement which is graver then sec. 345 I.P.C. hence in this stage it is not possible to take in to consideration. The accused committed offence u s 323 345 and 454 IPC. But no charge was framed u s 454 IPC. And I would not like to remand back the record for fresh trail but he sentence of go R.I. For six month and fine of 500 and in dealt he will further go simple imprisonment for S.I of one month u s 323 I.P.C. and also sentence awarded by the trial court such as undergo R.I. for a period of one year. The period already undergone by the convict during the proceeding of this case shall be set off. The appeal is dismissed sentence is modified and confirmed all sentences run concurrently 22. This Court finds that the learned appellate court in its opening sentence in para 9 has clearly recorded that the findings of learned trial court on the point of conviction only u s 354 I.P.C. is correct and also proceeded to hold that the learned trial court has committed error in their finding after leaving sentence u s 323 I.P.C. because both the victim deposed in one tone that the accused assaulted them by fists and there is no possibilities of independent witness. This Court finds that in the later part of para 9 the appellate court has mentioned Section 345 IPC which is apparently a typographical error. The present case is not even remotely related to any offence under Section 345 Indian Kanoon Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 IPC. This Court is of the considered view that upon reading para 9 of the impugned judgement as a whole it appears that the appellate court has upheld the conviction of the petitioner under Section 354 IPC and additionally convicted the petitioner under Section 323 IPC. This Court is of the considered view that the said typographical error in para 9 of the appellate court judgement in mentioning Section 345 IPC instead of Section 354 IPC at certain places does not cut any ice in favour of the petitioner as upon complete reading of para 9 the appellate court has clearly upheld the conviction and sentence of the petitioner under Section 354 IPC passed by the learned trial 23. This Court finds that the judgements passed by the learned courts below have considered all the arguments advanced on behalf of the petitioner including the contradictions pointed out by the petitioner and have dealt with the arguments and rejected the argument of the petitioner so far as the contradictions in the evidence are concerned and found that the materials for convicting and sentencing the petitioner for offence under Section 354 of Indian Penal Code were available. There are concurrent findings recorded by the learned courts below on the point of conviction and sentence of the petitioner under Section 354 IPC. There being no illegality or perversity in the findings of conviction and sentence of the petitioner under Section 354 IPC no interference is called for under revisional jurisdiction by this Court 24. So far as the conviction and sentence of the petitioner under Section 323 IPC by the learned appellate court is concerned this Court finds that admittedly the learned trial court did not convict the petitioner under Section 323 of IPC but the appellate court found that the basic ingredients of offence under Section 323 of Indian Penal Code were present and the trial court had committed error. Admittedly no cross appeal was filed by the state or the informant against the order of acquittal of the petitioner under Section 323 IPC and the impugned appellate court judgement does not reflect grant of any opportunity of hearing to the petitioner at the appellate stage. This Court is of the considered view that in the aforesaid circumstances the appellate court could not have convicted the petitioner under Section 323 IPC and reversed the order of acquittal of the petitioner under the said section. Thus the appellate court judgement calls for interference in revisional jurisdiction so far as it relates to conviction and sentence of the petitioner under Section 323 IPC. In view of the aforesaid the conviction and sentence of the petitioner by the appellate court under Section 323 IPC is hereby set aside 25. Thus the sentence and conviction of the petitioner under Section 354 of Indian Penal Code is upheld and sentence and conviction of the petitioner under Section 323 of Indian Penal Code by the appellate court is set aside. Accordingly this criminal revision petition is partly allowed 26. Pending interlocutory application if any stands closed 27. The bail bond furnished by the petitioner is cancelled 28. Let the Lower Court Records be immediately sent back to the court concerned 29. Let a copy of this order be communicated to the learned court below through FAX Email Indian Kanoon Pankaj Rita Devi Wife Of Triloki Das vs The State Of Jharkhand on 21 June 2021 Indian Kanoon 

Summary: The offence under Section 354 of the I.P.C. is complete when the accused uses criminal force on any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty was mentioned by Justice Anubha Rawat Choudhary of the Jharkhand High Court in the matter of Rita Devi Wife of Triloki Das versus State of Jharkhand [Cr. Rev. No. 949 of 2013] This order was passed for the facts where the petitioner was convicted under Section 354 of the Indian Penal Code by the learned trial court but was acquitted for an offence under Section 323 of the Indian Penal Code, according to learned counsel standing on behalf of the petitioner. He also claims that the State or the informant did not file a cross-appeal or acquittal appeal against the petitioner’s acquittal under Section 323 of the Indian Penal Code. He contends that the learned appellate court could not have convicted the petitioner under Section 323 of the Indian Penal Code in the absence of any cross or acquittal appeal filed by the State or the informant. The appellate court, according to the learned counsel, convicted the petitioner under Section 323 of the I.P.C. and upheld the petitioner’s conviction and sentence under Section 354 of the I.P.C. passed by the learned trial court. At this point, learned counsel for the opposing party, the State, contends that after reading para 9 of the appellate court’s decision, it is clear that the learned appellate court has upheld the petitioner’s conviction by the learned trial court, and that the petitioner was convicted by the learned trial court for an offence under Section 354 of the Indian Penal Code. He also claims that the petitioner was convicted under Section 323 of the Indian Penal Code by the appellate court. The learned counsel for the State contends that the reference to Section 345 rather than 354 in paragraph 9 of the appellate court’s judgement is most likely a clerical error, as the appellate court clearly notes the trial court’s upholding of the petitioner’s conviction. According to the case record, the complainant and the petitioner are co-villagers, and the petitioner is the complainant’s next-door neighbour. It is claimed that on the night of March 22, 2007, at approximately 11 p.m., the complainant came out of her residence with her dewar to attend to her natural call. Meanwhile, the petitioner, armed with a pistol, trespassed into the complainant’s courtyard, having made preparations to cause harm, and pointed the pistol at the complainant’s head by using criminal force, and the accused caught the complainant’s hand and began dragging her with the intention of outraging her modesty. The complainant raised an alert and opposed the petitioner’s illegal act with her dewar; nonetheless, the petitioner beat the complainant and her dewar with fists and slaps, causing harm. It is further claimed that another witness, the complainant’s husband, arrived on the scene after the complainant raised the alarm and that the petitioner then fled, leaving behind his shoe. It was also revealed that C.W. 3 and 4, the complainant’s father-in-law and mother-in-law, were in Bengal at the time of the incident. They came after receiving information and went to the Madhupur police station, but the police did not file a case, and the complaint was eventually made. The petitioner was charged with violating Sections 323, 354 and 452 of the Indian Penal Code on March 26, 2007, in the court of learned S.D.J.M., Madhupur at Deoghar, and the case was registered as P.C.R. Case No. 96 of 2007. In terms of the learned appellate court’s conviction and sentence of the petitioner under Section 323 of the Indian Penal Code, this Court finds that, while the learned trial court did not convict the petitioner under Section 323 of the IPC, the appellate court found that the basic ingredients of the offence under Section 323 of the Indian Penal Code were present and that the trial court had erred. The state and the informant did not submit a cross-appeal against the petitioner’s acquittal under Section 323 IPC, and the impugned appellate court judgement does not represent an opportunity for the petitioner to be heard at the appellate stage. This Court is of the considered opinion that the appeal court could not have convicted the petitioner under Section 323 IPC in the aforementioned circumstances, and has reversed the petitioner’s acquittal under that section. As a result of the appeal court’s decision, revisional jurisdiction should be exercised in relation to the petitioner’s conviction and sentence under Section 323 IPC. In light of the foregoing, the petitioner’s conviction and punishment under Section 323 IPC by the appeal court is hereby set aside.