Kuleshwar Prasad v. Sfte of Chhattisgarh

Judgment

1. Kuleshwar Prasad, S/o Khorbahra . Nishad, Aged about 20 years, R/o- Village -Pachdeori, Police Station - Kharora, District - Raipur (C.G.) VERSUS RESPQe®EN^ (l^]^l^ Sf^te of Chhattisgarh through Raipur (Chhattisgarh) The District Magistrate, MEMORANDUM OF APPEAL UNDER SECTION 3^ (2) OF Cr.P.C -.•"::-p 'tSin.!.: ''Sa^ 'tll,,,. - "^'j^K '^^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Radhe Shvam Sharma, J. Crimiftal Appeal No.233 of 2004 Appellant Kuleshwar Prasad, S/o Khorbahara Nishad, Caste Kewant, aged about 20 years, R/o Pachdeori, Police Station Kharora, District Raipur(C.G.) versus Respondent State of Chhattisgarh Present: Shri Shivendu Pandya, counsel for the appellant. Shri Sandeep Yadav, Dy. Govt. Advocate for the State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure. ORAL JUDGMENT (Deliveredon2nclJuly,2012) This appeal is directed against judgment dated 21-02-2004 passed by Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth 'the Act, 1989'), Raipur in Special Case No.183/2001. By the impugned judgment, accused/appellant Kuleshwar Prasad has been convicted under Section 3 (1 ) (xi) of the Act, 1989 and sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs.500/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 month.

2. Case of the prosecution, in brief, is as under:- Prosecutrix Kuleshwari (PW-1) is Satnami by caste, which belongs to Scheduled Caste. On 5-5-2001, prosecutrix Kuleshwari ' :.[ [•\ WK% j •^^y ••—^a""'' (PW-1) had gone to Badi of the appellant on her bicycle for purchasing vegetables. At that time, the appellant was alone in his Badi. Prosecutrix Kule^hwari (PW-1) purchased 1.00 Kg. Brinjal from the appellant and when prosecutrix Kuleshwari (PW-1) was making payment, the appellant caught her from behind, pressed her breast and tried to drag her inside his house. Prosecutrix Kuleshwari (PW- 1) shouted, extricated her from the appellant, left her bicycle and Jhola (bag) at the place of .occurrence and, weeping, she came to her house. She narrated the incident to her mother Soniyabai (PW-

2). Prosecutrix Kuleshwari (PW-1) lodged First Information Report (Ex.P-1) in Police Station Ajak, Raipur. During investigation, certificate (Ex.P-3) prosecutrix Kuleshwari (PW-1) was seized and spot-map (Ex.P-2) was prepared. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Raipur who, in turn, committed the case to the Court of Session, Raipur, from where it was received on transfer by Special Judge under the Act, 1989, Raipur, who conducted the trial and convicted and sentenced the appellant as mentioned above.

3. Shri Shivendu Pandya, learned counsel for the appellant argued that there is no evidence on record to show that prosecutrix Kuleshwari (PW-1) belongs to Scheduled Caste. There is absolutely no evidence on record to show that the alleged act was done by the appellant simply because prosecutrix Kuleshwari (PW-1) belongs to Scheduled Caste. He further argued that the appellant has been -•r, y^l. c^ falsely implicated in the case, therefore, the appellant deserves to be acquitted. \,

4. On the other hand, Shri Sandeep Yadav, learned Dy. Govt. Advocate for the State/respondent, supporting the impugned judgment, submitted thal the conviction and sentence awarded by learned Special Judge do not warrant any interference by this Court. '()'.

5. I have heard learned^counsel for the parties at length and have also perusedthe record ofSpecial Case No.183/2001.

6. The charge sheet was filed against the appellant under Section 354 IPC and Section 3(1)(xi) of the Act, 1989. Learned Special Judge framed charges against the appellant under Section 3 (1) (xi) ofthe Act, 1989 read with Section 354 IPC. He convicted the appellant under Section 3 (1) (xi) ofthe Act, 1989.

7. To hold the appellant guilty, the prosecution examined Kuleshwari (PW-1), Soniyabai (PW-2), Anandram (PW-3), Sarpanch Bhagwatibai (PW-4), Ledagibai (PW-5), DySP M.S.Khan (PW-6) and SDO(P) Dashrath Dekate (PW-7). The appellant did not examine any witness in his defence. \

8. Prosecutrix Kuleshwari (PW-1) and Anandram (PW-3) deposed that prosecutrix Kuleshwari (PW-1) is Satnami by caste. The appellant knew her caste. Bhagwatibai (PW-4) deposed that she was Sarpanch of Gram Panchayat, Nakati Kumhari and she had issued the caste certificate (Ex. P-3) to prosecutrix Kuleshwari (PW- 1).

9. Prosecutrix Kuleshwari (PW-1) is Satnami by caste. Ex. P-3 is her caste certificate issued by Sarpanch Bhagwatibai (PW-4). Admittedly, the prosecution did not submit caste certificate of prosecutrix Kuleshwari (PW-1) issued by Tahsildar or Sub-Divisional Officer, who are competent authorities for issuing caste certificates, therefore, the prosecution •i has not been able to prove that prosecutrix Kuleshwari (PW-1) belongs to Scheduled Caste. In the instant case, there' is no evidence on record to show that the alleged act was done by the appellant simply because prosecutrix Kuleshwari (PW-1) belongs to Scheduled Caste. In absence ofany cogent evidence, the appellant cannot be convicted under Section 3 (1) (xi) ofthe Act, 1989. Prosecutrix Kuleshwari (PW-1) did not make allegations that the appellant caught her and pressed her breast because she belongs to Scheduled Caste.

10. In view of the above facts and circumstance of the case, the appellant cannot be convicted under Section 3 (1) (xi) of the Act,

1989. So far as the FIR is concerned, the date and time of the incident is 5-5-2001 at about 8 am and the First Information Report (Ex.P-1) was lodged on 6-5-2001 at about 6 pm. The distance between the Police Station and Village Pachdeori is 50 Kms.

11. Soniyabai (PW-2) deposed that her husband had gone to Village Bhimouri to attend a marriage ceremony. In First Information Report (Ex.P-1), it is mentioned as follows:- €^ "spr^ PttfT ^ R«:l<<i'!1 ^' uTT^ ^ ^TTRT STT^ TR qS^T ^t u)l^*l'(1 ^^-T ^TTST 4 Wt^ v^ srr^"

12. Delay in lodging FIR in rape cases cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only pufs the Court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only s'pe whether it is satisfactory or not. In case, if the prosecution fails-to satisfactorily explain the delay and there is possibility of embellishments or exaggerations in the prosecution version on account of such delay, it is relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea offalse implication.

13. Mere delay in lodging the FIR cannot be a ground itself for throwing the entire prosecution case overboard. The Court has to seek explanation for delay and its truthfulness and plausibility of reasons assigned. If the delay is explained to the satisfaction of the Court, it cannot be counted against the prosecution. In the instant case, prosecutrix Kuleshwari (PW-1) was, on the date of incident, an unmarried girl. At the time of incident, her father was not present in the house. When her father came back on the next day, the FIR (Ex.P-1) was lodged. Delay ih lodging the FIR (Ex.P-1) has been explained properly and satisfactorily, fherefore, the delay in lodging the FIR (Ex.P-1) is not fatal to the case ofthe prosecution.

14. So far as Section 354 IPC is concerned, prosecutrix Kuleshwari (PW-1) deposed that on the date of incident, she had • gone to Badi of the appellant to purchase vegetables. The appellant told her to sit and he brought Brinjals. When prosecutrix Kuleshwari (PW-1) was making pa^ment, the appellant caught her and tried to qleR her and broke buttons of her shirt. She extricated her from the appellant, left her Jhola (bag) and bicycle there and weeping, came back to her house. She narrated the incident to her mother and uncle. She further deposed that the appellant had threatened her. On the way, she had met Le.dagi Bai (PW-5) and had narrated the incident to her also.

15. Ledagi Bai (PW-5) deposed that prosecutrix Kuleshwari (PW- 1) was, weeping, coming on the way and when she asked her about her weeping, prosecutrix Kuleshwari (PW-1) told her appellant had caught her and tried to TteR her and broke buttons of her shirt.

16. Soniyabai (PW-2) deposed that prosecutrix Kuleshwari (PW-1) narrated the incident to her and she also deposed that prosecutrix Kuleshwari (PW-1) told her that the appellant caught her, pressed her breast and torn her clothes. Anandram (PW-3) also deposed in similar fashion and he further deposed that he told the incident to the father of the appellant. I

17. While considering Section 354 IPC, in Tarkeshwar Sahu Vs State of Bihar (2006) 8 SCC 560, the Hon'ble Supreme Court held thus: "37. On the basis of evidence and documents on record, in our considered view, the appellant :i ^SSa. 1 ^'s^y3!% l <«

2. is also guilty under Section 354 IPC because all the ingredients ofSection 354 IPC are present in the instant case.

38. Section 354 IPC reads as under: "354. woman with intent Assault or criminal force to 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 punisl'i'ed with imprisonment of either description for a term which may extend of two yeas, or with fine, or with both."

39. So far as the offence under Section 354 IPC is concerned, intention to outrage the modesty of a woman or knowledge that the act of the accused would result in outraging her modesty is the gravamen of the offence.

40. 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 is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex.

41. "Modesty" is given as, "womanly propriety 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 (Raju Pan.durang (2004) 4 Mahale Vs. State of Maharashtra, SCC371.

42. The ultimate test for ascertaining whether the modesty of a woman has been outraged, assaulted or insulted is that the actioh of the '", *"^.:,. .:-y ISBiBI z. 8 offender should be such that it may be perceived as one which is capable of shocking the sense of decency of a woman. A person slapping on the posterior of a woman in full public glare would amount to outraging her 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 (Rupan Deol Bajaj Vs. Kanwar Pal Singh Gill, (1995) 6 SCC 194.

43. The word "modesty" interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. It is a virtue which attaches to a female on account of her sex (Major Singh Lachhman Singh Vs. State, AIR1963Punj443).

44. We deem it appropriate to reproduce the cases of various courts indicating circumstances in which the court convicted the accused under Section 354 IPC.

46. A well known author Kenny in his book Outlines of Criminal Law (19 Edn., para 146, p. 203 has dealt with the aspect of indecent assault upon a female. The relevant passage reads as under: "In England by the Sexual Offences Act, 1956, an indecent assault upon a female (of any age) is made a misdemeanour and on a charge indecent assault upon a child or young person under the age of sixteen it is no defence that she (or he) consented to the act of indecency."

47. In State of Punjab Vs. Major Singh AIR 1967 SC 63, a three-Judge Benchof this Court considered the question - whether modesty of a 's: 'l '•~°»~ female child of 7% months can also be outraged. The majority view was 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 intention of outraging her modesty or with the knowledge of the likelihood of doing so. The Code does not define 'modesty'. Whafjthen 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 possesses a modesty capable outraged. Whoever uses criminal 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 the act; nevertheless, offender is punishable under the section. A female bf tender age stands on a somewhat different footing. Her immature, and her sexual powers are dormant. In this case, the victim is a baby, seven-and-half months old. She has not yet developed a sense of shame and has no awareness of sex. 10 Nevertheless from her very birth she possesses the modesty which is the attribute of her sex."

18. In Vidyadharan Vs. State of Kerala (2004) 1 SCC 215, the Hon'ble Supreme Court held thus: "9. In ord^r 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 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. The essential ingredients oftheoffence 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 onthe woman intending thereby to outrage her modesty.

10. Intention is not the sole criterion of offence punishable under Section 354 IPC, and it can be committed toy 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 ofintention or from various knowledge has to be culled out circumstances in which and upon whom the lUffl •f (?. ^ 11 alleged offence alleged committed. A victim of molestation indignation is in the same position as an injured witness and her testimony should receive the same weight. In the instant case after careful consideration of the evidence, the trial court and the High Court have found the accused guilty. As rightly observed by the courts below, Section 3 (1) (xi) ofthe Act which deals with assaults or use of force to any w^man belonging to a Scheduled Caste or Scheduled Tribe with the intent dishonour or outrage her modesty 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 (xi) applies. The other difference is that (1) 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 the commission of offence punishable under Section 448."

19. Considering the above legal position and the evidence of prosecutrix Kuleshwari (PW-1), Soniyabai (PW-2),Anandram (PW- 3) and Ledagi Bai (PW-5), is evident that the appellant caught prosecutrix Kuleshwari (PW-1) and pressed her breast, therefore, 12 the offence under Section 354 IPC is clearly made out against him. Therefore, the appellant should have been convicted under Section 354 IPC instead of convicting under Section 3 (1) (xi) of the Act,

20. So far as the sentence is concerned, learned counsel for the appellant argued that the incident took place on 5-5-2001. The case is pending for about 11% years. The appellant remained in custody for 3 days. Therefore, instead of sending the appellant back to jail, fine amount may be enhanced and he may be sentenced for the period already undergone by him.

21. Shri Sandeep Yadav, learned Dy. Govt. Advocate for the State/respondent has no serious objection to the above submission.

22. Considering the facts and circumstances of thecase, 1 do not feel it appropriate to send the appellant back to jail. 1 am of the view that the ends ofjustice would be met if the jail sentence awarded to the appellant is restricted to the period already undergone by him besides enhancing the amount offine.

23. In the result, the conviction. and sentence awarded to the appellant under Section 3 (1),(xi) of the Act, 1989 are set aside and instead the.reof he is convicted under Section 354 IPC, however, he is sentenced to the period already undergone by him. So far as the sentence of fine is concerned, the amount of fine is enhanced from Rs.500/- to Rs.5,000/- for the offence under Section 354 IPC. The appellant is granted 2 months time to deposit the amount of fine, 13 failing which, he shall be liable to undergo rigorous imprisonment for 1 month. If any amount is already deposited towards fine, the same shall be adjusted in ths amount of fine imposed/enhanced by this Court today. Out of total amount of fine, if deposited, a sum of Rs.3,000/- shall be paid to the victim prosecutrix Kuleshwari (PW-1), daughter of Parasram, resident of Village Pachdeori, P.S. Kharora, District Raipur, as compensation. ^ SdA R.S. Sharma Judge