Omprakash @ Ballu v. State of Chhattisgarh

lodged First Information Report (Ex.P-1 ) against the appellant where crime under Sections 341 and 354 of the IPC and Section 3(1)(xi) of -th.e Act, 1989 was registered. Prosecutrix Arti Bai (PW-1) wassent Ls";^3^ :lS':SS:'Si. ' l II'^K^I 1 i'^s..!.<"''.•?' to the Primary Health Center, Ahiwara for medical examination. Dr. H.K.Sahu (PW-2) examined prosecutrix Arti Bai (PW-1) and gavehis report (Ex. P-5), in which; he found contusion %X%" on left wrist tenderness and blackish in colour, pain on right wrist but no external injury was found. He opined that the injury on left wrist was caused by hard and blunt object. In further investigation, blouse and broken pieces of bangles of prosecutrix Arti Bai . << (PW-IQ were seized vide Ex.P-2. Caste Certificate (Ex.P-3) of prosecutrix Arti Bai (PW-1) was seized vide Ex.P-4. Spot map (Ex.P-6) was prepared by SDO(P) S.R.Salaam (PW-7). After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Court of Special Judge, Durg under the Act, 1989, who conducted the trial and convicted and sentenced the appellant as mentioned above.

3. Shri N.S.Dhurandhar, learned counsel the appellant argued that there is no evidence on record to show that prosecutrix betongs to Scheduled Caste. There is absolutely no evidence which shows that the alleged act was done by the appellant simply because prosecutrix Arti Bai (PW-1) belongs to Scheduled Caste. He further argued that the appellant has been falsely implicated. The FIR (Ex.P-1) was lodged at belated stage and the delay was not properly explained by the prosecution. The evidence of prosecutrix Arti Bai (PW-1) is not reliable and cannot be .•^i*^!a.! l;ti'f •m^li' .J Bii5;.:;^^-S^!-"-Bl- "!-:.B; fclBI,%te>;;^t^^.Bifc,?^^si^ SS'S^^^^'i^ '<A :^^j ^y// •iBS;l 7;ir:;'"':;':T'~'« based for conviction, therefore, the appellant deserves to be acquitted. \

4. On that other hand, Shri Vinay Harit, learned Deputy Advocate General the State/cespondent, supporting the impugned judgment, submitted that.the conviction and sentenee awarded by the learned Special Judge do not warrant any interference by this Court. ti: .:1.

5. I have heard learned counsel for the parties and have also perused the record-of Special Case Np. 136/2003. The conviction of the appellant is based on the evidence of prosecutrix Arti Bai (PW-1) and Kusuram (PW-3).

6. Kusuram (PW-3) deposed that prosecutrix Arti Bai (PW-1) is his wife. They are Satnami by caste and belongs to Scheduled Caste. SDO(P) S.R.Salaam (PW-7) deposed that he had seized the caste certificated (Ex.P-3) from prosecutrix Arti Bai (PW-1) vide Ex.P-4. Prosecutrix Arti Bai (PW-1 ) did not say anything about her caste but looking to the evidence of Kusuram (PW-3), SDO(P) S.R.Salaam (PW-7) and caste certificate (Ex.P-3), which is issued by competent authority, it is evident that prosecutrix Arti Bai (PW-1) is by caste Satnami which belongs to Scheduled Caste.

7. In the instant case, prosecutrix Arti Bai (PW-1) did not say anything about her caste. There is noevidence on record to show that the alleged act was done by the appellant simply because prosecutrix Arti Bai (PW-1) belongs to Scheduled Caste. Even her statement, prosecutrix Arti Bai (PW-1) did not make such allegations x.< '•''• fc..-.;»,^' B'"." ;! ''v' ''^". W' '^ K-^!v^ ^::.:^c^';;:;. ;;; l,!-01^ B'^-e111"?""'' against the appellant. In view of the above facts and circumstances, the appellant cannot be convicted under Section 3(1 )(xi) of the Act,

1989. v

8. So far as delay in lodging the FIR (Ex.P-1) is concerned, cannot be always used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the Court on guard to search for and con^ider if any explanation has been ;.r. offered for the delay. Once it is offgred, the Court is to only see whether it is satisfactory or not. In case, if the prosecution fails to satisfactorily explain the delay is possibility of embellishments or exaggerations in the prosecution version on account of such delay, is relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea offalse implication.

9. Mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court, it cannot be counted against prosecution.

10. In the instant case, Chacha Sasur (brother of her father-in- law) was admitted in Sector 9 Hospital at Bhilai and husband of-the prosecutrix Arti Bai (PW-1) was gone to meet him. Prosecutrix Arti Bai (PW-1) deposed that At about 8:00 P.M., Kusuram (PW-3, husband of prosecutrix) returned the home. Next -morning, she >.''^..'.^. t. ^\ narrated the incident to Kusuram (PW-3). Thereafter, she went to Police Station, Nandini Nagar along with her husband and lodged First Information Report (Ex.P-1) against the appellant. Kusuram (PW-3) deposed that his uncle was admitted in Sector 9 Hospital at Bhilai. He had gone to Bhilai to see him and he returned home at about 8:00 P.M.. He further deposed that next morning, prosecutrix Arti Bai (PW-1) narrated the incident to him. Thereafter, she lodged the FIR (Ex.P-1) in police stati6n. ASI M.M.Yadu (PW-6)deposed << that prosecutrix Arti Bai (PW-1) lodged the FIR (Ex.P-1) in Police Station Nandini Nagar. Delay in lodging the FIR (Ex.P-1) has been explained by prosecutrix Arti Bai (PW-1) properly and satisfactorily. Therefore, the delay in lodging the FIR (Ex.P-1) is not fatal to the case of the prosecution.

11. Prosecutrix Arti Bai (PW-1) deposed that she had gone to her field for working. At about 12:00 P.M., she was coming back to her home. When she reached near Shamshan Ghat (graveyard), appellant met her, caught her hands and kissed her and pressed her breast and uplifted her petticoat. She extricated herself and shouted. The appellant fled from there. She further depose that her husband Kusuram (PW-3) had gone to Bhilai. When he returned from Bhilai, she narrated the incident to him. Kusuram (PW-3) deposed that he had gone to Sector 9 Hospital, Bhilai to see his uncle. He further deposed that he came back to his house at about 8:00 P.M. and next day morning, prosecutrix Arti Bai (PW-1) narrated the incident to him. Santu Banjare (PW-5) deposed that Kusuram (PW-3) came to him and told the incident to him. . „. l!i..l itS^- i| J94 6ui6ejino ui 'xas jsqoi BUIMO e|euu9i e 01 seqoeue qoiiiM ••SSB|O e se sBuiaq ueujnq eieiuei enyiA e si qi!/v\ peieioosse ainqyue UE si Aisepo|/\| -eAisiosp 'iueA9|9J AJBA sAeM|e iou si. eouasqe S}; Sl UELUOM 9L|l p UOIlOBej 341 •jayeLU eqi jo xmo eqi si pasnooe eyi jo uoiiusiui 8|qed|no 941 •xes 'ofr jsy si AisapoLU s,ueuiOM e p souesse 341 •aouayo eqi jo ueujeAEjB 941 si Aisepouj i|nsej p|noM pesnooe 941 io pe 34} leqi a6p8|MOU)| jo UELUOM e jo Aisapouu 'peujeouoo si Qcll 8i|l aBeflno o\ uoiiusiu! •ge qiiM jo 'seeA OMI IQ puspo Aeiu yoiqm lujei e jo^ uoiiduossp jsyio p }U9LuuosudLU! 4i|M peysiund sq iieys 'Aisepoui jsq eBejino Aqejaqi ||IM eq 4641 A|3>|i| eq 011! BUIMOU>| jo s6Bjino 01 6uipU9iU! 'UELUOM Aue 01 93J01 leuiiuuo sssn jo St|nesse j9A9oqM - •A}S9poui JQLI aBej}no 0} }UQ)U! y;//w UBLUOM O) QOJIOJ. frSg uoipeg J9pun sousyo eqi se JBJ 03 ,,'l|ioq qiim jo 'eui^ leuituuo jo finessy '1?9£,, :jepun se speej od| frge uoipas •gs •aseo luetsui eq^ ui }usssjd 9je Qdl t?se uoipas 10 siueipejeui sqi ||B esneoeq Odl frSS uoipas jspun Ai|inB OS|E.S! 'pjooaj uo lUB||9dde sqi 'MSIA UQ -^e,, siusiunoop pue eouepiAa jo giseq pejapisuoo jno ui 'su^ :sni|t p|si< ynoo euisjdns siq.uoH '099 SA "489 jemqsa^jei ui 'Qdl 03'S 8^9002) •'eyig 10 Q^^Q frSS uoipes BuyspiSuoo 8|iL|M •£|. •U83S SEM ^nfUI IBUJSpO OU ^nq tsum iL|6y uo uied 'iussejd sssujepuei pue }SUM ys| uo .t/^cvA uoisniuoo punoj ey 'qoiqm ui ijodsj siy 9AE6 pue (^AAd) lea jlJV xuinoasojd '(g-d'xH) pouiiuexe peq 34 leqi pssodep (z-Md) nqes-X-H '-10 "21. }m -N !liN !!1 1"w\ r' t •BSI ^s^ II^r ..d'NCI •%. 5Si ^r?E k 8

47. ln State of Punjab Vs. Major Singh AIR 1967 SC 63, a three-Judge Bench of this Court considered the question - whether modesty of a female child of 7% months can also be outraged. The majority view was in the affirmative. Bachawat, J. on behalf of majority, opined as under: "The offence punishable under Section 354 is an assault on or use of criminal force to a woman wit the ,'jhtention of outraging her modesty or with the knqyvledge of the likelihood of doing so. The Code does not define 'modesty'. What then is a woman's modesty? ..... the essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, sleeping, the woman a modesty possesses outraged. Whoever uses criminal capable force to her with intent to outrage her modesty commits an offence punishable under Section 354. 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, as, for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anaesthesia, she may be sleeping, she may be unable to appreciate the ,significance of offender is punishable under the section. the act; nevertheless, A female of tender age stands on a l-1er footing. different somewhat immature, and her sexual powers are dormant. In this case, the victim is a baby, s&ven-and-half months old. She has not yet developed a sense •x^ ,:..I l'f*t ^^ ^-i'-<^'. '^ t-.wc^ v^^^/ ^ of shame and has no awareness of sex. Nevertheless from her very birth she possesses the modesty which is the attribute of her sex."

14. In Vidyadharan Vs. State of Kerala (2004) 1 SCC 215, the Hon'ble Supreme Court held thus: "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 delibecate intention of having such outrage alone for its qbject. There is no abstract conception of modesty that can apply to all cases. .(See State of Punjab Vs. 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. Theessential ingredients ofthe offence under Section 354 IPC are as under: i. ii. that the person assaulted must be a woman; the accused must have used criminal force on her; and iii. 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 likelyto.be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which .i..-.f'., ^; 10 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 instant case after careful conslderation of the evidence, the trial court and the High Court have found-the accused guilty. As rightly observed by the courts below, SectTdn 3 (1) (xi) of the Act which deals with assaults or.. usos. of force to any woman ^:, belonging to a Schedule.d Caste or Scheduled Tribe with the intent to dishonour or outrage her modesty is an aggravated form of the offence under Section 354 IPC. The only difference between Section 3 (1) (xi) and Section 354 is essentially the caste or the tribe to which the victim belongs. If she belongs to a Scheduled Caste or Scheduled Tribe, Section 3 (1) (xi) applies. The other difference is that in Section 3 (1) (xi) dishonour of such victim is also made an offence. Section 448 provides for punishment relating to house trespass. In order to sustain the conviction under Section 448 IPC it must be found that the intention of the accused was to commit an offence or to intimidate, insult or annoy the complainant. There must be unlawful entry and there must be proof of one or the other of the intentions mentioned in Section 441 IPC. In the case at hand,. evidence clearly establishes commission offence punishable under Section 448.

15. Considering the above legal position, facts and evidence of prosecutrix Arti Bai (PW-1) and Kusuram (PW-3), it is evident that ttie appellant caught the hand of prosecutrix Arti Bai"([PW-1) and I'x^^^wl ^ 11 kissed her and pressed her breast with intent to outrage her modesty. Therefore, the offence under Section 354 IPC is cleariy made out against himN Therefore, the appellant has rightly been convicted under Section 354 IPC.

16. So far conviction under Section 341 IPC and3(1)(xi) of the Act, 1989 are concerned prosecution did not able to prove offence under Sections 341 IPCand 3(1)(xi) of the Act, 1989. Hence, the appellant is entitled for acquittaKfor the offence punishable under ^, Sections 341 IPC and 3(1)(xi) ofthe Act, 1989

17. So far as sentence under Section 354 IPC is concerned, learned counsel for the appellant argued that the incident took place on 8-8-2003. The case is pending for about 9 years and jail sentence is not mandatory under Section 354 IPC and the appellant remained in custody for 2 days, therefore, insteadof sending him back to jail, the fine amount may be enhancedand he may be sentenced for the period already undergone by him. 18, Per contra, Shri Vinay Harit, learned Deputy Advocate General for the State opposed the above arguments.

19. Considering the facts and circumstances of the case, l do not feel it appropriate to send the appellant back tojail.lam ofthe view that ends of.justice would be met, if the jail sentence awarded to the appellant is restricted to the period already served by him besides enhancing the amount offine. 12

20. In the result, the appeal is partly allowed. The conviction and sentence awarded to the appellant under Section 341 IPC and Section 3(1)(xi) of the Act, 1989 are set aside. The conviction under Section 354 IPC is upheld, however, he is sentenced for the period already undergone by him. So far as the sentence of fine is concerned, the amount of fine is enhanced from Rs.500/- Rs.7,000/- for the offence under Section 354 IPC. The appellant is granted 3 months time to d^ppsit the above amount of fine, failing which, he shall be liable to' undgrgo rigorous imprisonment for 1 month. If any amount is already deposited towards fine, the same shall be adjusted in the amount of fine enhanced by this Court today. Out of the total amount of fine, if deposited, a sum of Rs.5,000/- shall be paid to the victim, i.e., prosecutrix Arti Bai (PW-1), as compensation. Sd/- R.S.Sharma Judge ^^-'I' !^ III