Kriparam v. State of Chhattisgarh

lodged First Information Report (Ex.P-1) in Police Station Khairagarh. Prosecutrix Basantin Bai (PW-1)was sent to Community Health Centre, Khairagarh for medical examination. Ot U.S.Chandrawanshi (PW-7) examined prosecutrix Basantin Bai (PW-1) and gave his report (Ex.P-6). In further investigation, spot map (Ex. P-3) was prepared. Gamchha belonging to the appettant was seized from Ramgopal (PW-2) vide Ex.P-4. Caste certificate (Ex.P-2) of prosecutrix Basantin Bai (PW-1) was also obtained. The appellant was arrested on 30-7-2004 vide Ex.P-5. After completion of the investigation, charge sheet was filed against the appellant in the Court of Additional Chief Judicial Magjstrate, Khairagarh, who, in turn, committed the case to the i.eat*'*, .^^^ , § Court of Special Judge under the Act, 1989, Rajnandgaon, who conducted the trial and convicted and sentenced the appellant as mentioned above. \

3. Shri K.A.Ansari, tearned Senior Advocate for the appellant argued that the First Information Report (Ex.P-1) was lodged at belated stage. In absence of proper explanation therefor, conviction and sentence ^awarded to the appellant cannot .,( sustained. He further argued that the evidence of prosecutrix \ Basantin Bai (PW-1) is not corroborated by the evidence of independent witnesses. It is not safe to rely upon the testimony of prosecutrix Basantin Bai (PW-1). The appellant deserves to be acquitted.

4. On that other hand, Shri R.R.Sinha, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Special Judge do not warrant any interference by this Court.

5. Having heard rival contentions of the parties, 1 have perused the record of Special Case No.79/2004. The conviction of appellant is based on the evidence of prosecutrix Basantin Bai (PW- 1).

6. Prosecutrix Basantin Bai (PW-1) deposed that she was residing along with her father at Village Dapka. Her brother was also residing with them. She further deposed that 2-3 months prior to the incident, on the'day of /-/anyaff festival, she was sleeping along with her son Dhanesh and daughter Sohadra after taking dinner. :^ti£^l;^ "Ma8 ;isl;:Biai ^!f::-^ ..^:1^: ..^';i:^HLai MIM: 'SIS :siK^.& •' S&s :BaB WSss fiB aN!ll •I UUII f~ ^ pasn eq IOUUBO SSSEO qons ui yu 6ui6po| U! Ae|ea •suu>| L si uoiieis 93i|0d aq^ pue oouajjnooo jo 93E|d 341 ueemiaq aoueisip ayi •LUE 0^:01. inoqe ie ^OOZ-Z-81. uo pe6po| SBM ([.-d'xa) y|j eqt pue lud 00:1.1, »noqe}B ^OOZ-Z-Z I. si luepjoui eq) ^o SLUII pue 3}ep 941 •6 •qje6ej!B4»uonets 80i|0d ui (|. -d"x3) yid 341 ps6po| (|.-Md) !B9 uiiueseg xuinoasojd }Bqi pssodap •8 'eg uiiueseg xuinoesojd (Z-AAd) ledoBLuey pue (|.-Md) •et/yotueg 314 6uiAEe| IUQJ^ psy pue liesiuiy psieoupo eq }nq iue||adde eqi iqBneo Sey (z-Md)|edo6iuey IB^} (^-Md) SBpeOueo P|O} (z-/v\d)iedo6LUEy •jsiqiilGneo peq iue||9ddB aq^ teqi LUiq psiejjeu (l.-Md) iBg uiiueseg xuinossojd yeuA pasodep jsi^ijnj SH 'sjsill 'uiejiier 'aiuii p9J34}e6 os|e Luejeysuei^i 'ssnoq eqi jo (no eiueo leqi w pueuejujns 9H 'dn 3)|OM pue (|.-/v\d) !ea uiiueseg xuinoesojd jo esiou 94} pjeeq aq 'aid "ssnoii siij ui 6uida9|s SBM sq 'iud 00:1.1. inoqe »v 00:6 inoqe 'iEAitse^ .//B/UBH aqi Buunp }BL|I pasodep (fr-Md) sepe6ue9 •^. •uoiLiseijeiiLuis ui pssodap OS|B •ejei^i IUQJJ pay pue' jie.suiiq peieouixe tUB||3dde ;-AAd) |Bdo6iuey ei|} jeL) inq iue||sdde 9L|} iqBneo J8L|iej tej.il pesodap jeyijn^ aqg 'tUE||edde sqi SBM IUOQJ jiai)} psjeiua peq oqM uosjad 941 }Bq} MBS Asqt 'qojoi eqi jo 14611 u| •vpio} a^e} 0} luem (z-Md) ledoBiuey jsqiei JS4 leyi pasodep jayynj 943 'dn 9>|OM OS|E (z-Md) |edo6Luey JSqiej J8|-| •pejsdui^M pue dn 8)|OM eqg -s6s(| jeii payonoi euoeujos teqi }|3^ sqs ieqi pssodep jayijnj 843 'ioo -is^ioue uo 6u[dea|s OS|B ej9M jaqiojq jsy pue (xuinossojd 941 p jeqtej - z-Md) lEdoBLuey "' t? ff ^ %^-. k ^JSeji^ ^\ as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts 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 see 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 versiofl -on account of such delay, it is relevant factor. On the other hand, satisfaci'pry explanation for the delay is weigh^ enough to reject the pleaoffalse'lmplication.

10. Mere delay in lodging the FIR cannot be a ground by itselffor throwing the entire prosecution case overboard. The Courthas 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. In the instant case, the date and time of incident is17- 7-2004 at about 11:00 pm and the First Information Report (Ex.P-1J was lodged on the next day, i.e., on 18-7-2004 at about 10:40 am. It reveals that there is no delay in lodging the FIR (Ex.P-1).

11. So far as Section 354 IPC is concerned, prosecutrix Basantin Bai (PW-1) deposed that on the date of incident at about 11:00 pm, she was sleeping in her house. The appellant entered her house and touched her hand and leg. On being shouted by Basantin Bai (PW- 1), her father Ramgopal (PW-2) woke up. Ramgopal (PW-2) caught the hand of the appellant but the appellant extricated himself and fled from there. Ramgopal (PW-2) also deposed that the appellant had entered his house and when he caught the appellant, appellant extricated himself and fled from there but the appellant left his Gamchha there. The evidence of prosecutrix Basantin Bai (PW- 1) is also corroborat6d by Premdas (PW-3) and Gangadas (PW-4).

12. While considering Section 354 IPC, in Tarkeshwar Sahu v. 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 ,.,(. is also guilty under Section 354 IPC because all the ingredients of Section 354 1PC are present in the instant case.

38. Section 354 IPC reads as under: "354. force to woman with intent to outrage her modesty. - Assault or oriminal 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 punished 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 ofthe 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. mci:: K. ssrCT ""flMlf.^ 's ^

41. "Modesty" is given as, "womanly propriety behaviour; scrupuloys 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 Pandurang Mahale v.'State of Maharashtra, (2004) 4 SCC 371.

47. In State'of Punjab v. Major Singh, AIR <l ,1. 1967 SC 63, 8 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 intention of outraging her modesty or with the knowledge 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, awake or sleeping, the woman possesses outraged. Whoever uses criminal a modesty 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 cejevant, but its absence is not always decisive, i as, fbr example, when the accysed with a corrupt mind stealthily touches the flesh of a S&%K' ^ '% 11 rs£^?:^, ^' •^. 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 act; nevertheless, offender is punishable under the section. A female of tender age stands on a somewhah different footing. Her immature, and,her sexual powers are dormaht. In this case, the victim is a baby, seven-and-half months old. S0'e has not yef developed a sense of shame and hgs no awareness of sex. Nevertheless from her very birth she possesses the modesty which is the attribute of her sex."

13. In Vidyadharan v. 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 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 of the 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 :i8ll 'sa .-^^ ^?l <B. "S M ,i-xu.»''.,;'? :''y'?"~ JIN ili1;-"- 9 iii. the criminal force must have been used on the woman intending thereby to outrage her modesty. "10. Intention is not the sole criteriQn of the offence punishable under Section 354 IPC, and it can be Cipmmitted by a personassaulting or using eriminal force to anywoman, if he kno\ivs that bysuch act the modesty of the woman is likely to be. aff$.cted. 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 and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in fhe same posifion as an testimony should injured witness and her receive the same weight. In the instant case after eareful 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) of the Act which deals with assaults or use of force to any woman belonging to a Scheduled Caste or Scheduled Tribe with the intent to dishonour or outrage her modesty is an aggravated form of the offence under Section 354 1PC. 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 (l^(xi) dishonour of such victim is also made an offence. Section 448 provides for^punishment In order to sustain relating to house trespass. •I 10 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 iritentions mentioned in Section 441 IPC. In the, case at hand, evidence clearly establishes commission offence punishable under Section 448. Considering the above legal position, facts and evidence of <l( . ,*.

14. prosecutrix Basantin Bai (PW-1) and Ramgopal (PW-2), it is evident that the appellant entered the house of prosecutrix Basantin Bai (PW-1) and caught her hand and legs with intent to outrage her modesty. Therefore, the offences under Sections 456 and 354 IPC are clearly made out against him. Therefore, the appellant has rightly been convicted under Sections 456 and 354 IPC.

15. So far as the sentence is concerned, learned counsel for the appellant argued that the incident took place on 17-7-2004. Thl case is pending for about 8 years. Jail sentence is not mandatory under Section 354 IPC. The appellant remained in custody for 4 days, therefore, instead of sending him back to jail, fine amount may be imposed/enhanced and he may be sentenced for the period already undergone by him.

16. Per contra, Shri R.R.Sinha, learned Panel Lawyer for the State/respondent, opposed the above arguments.

17. Considering the facts and circumstances of the instant case, l do not feel it appropriate to send the appellant back to jail. 1 am of 11 the view that the ends of justice would be met if the jail sentence awarded to the appellant is restricted to the period already served by him besides imposing/enhancing the amount of fine.

18. In the result, the appeal is partly allowed. The conviction of the appellant under Sections 456 and 354 IPC is upheld. hlowever, the jail sentence awarded to him is reduced to the period already undergone by him. So far as the sentence of fine is concerned, ths amount of fine is enhanced from Rs.200/- to Rs.5,000/- for the <( offence under Section 456 IPC and fine of Rs.5,000/- is imposed upon the appellant for the offence under Section 354 IPC. The appellant is granted 3 months' time to deposit the above amounts of fine, failing which, he shall be liable to undergo rigorous imprisonment for 1 month under each count. If any amount already deposited towards fine, the same shall be adjusted in the amount of fineenhanced/imposed by this Court today. Out of the total amount of fine, if deposited, a sum of Rs.7,000/- shall be paidi, to prosecutrix Basantin Bai (PW-1) as compensation. Sd/- R.S.Sharma Judge •^- ' - u