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2005 DIGILAW 292 (KER)

Sasidharan v. State of Kerala

2005-05-06

K.PADMANABHAN NAIR

body2005
Judgment :- K. Padmanabhan Nair, J. The accused in C.C.No.254 of 1990 on the file of Judicial First Class Magistrate-II, Attingal is the revision petitioner. The learned Magistrate found the revision petitioner guilty of the offence punishable under S.354 of the Indian Penal Code, convicted and sentenced to undergo Simple Imprisonment for six moths. Challenging the conviction and sentence, the revision petitioner filed Crl.A.No.77 of 1993 before the Sessions Court, Thiruvananthapuram. The learned District Judge also concurred with the learned Magistrate and dismissed the appeal. This Criminal Revision Petition is filed challenging those concurrent findings. 2, The facts necessary for the disposal of this Criminal Revision Petition are as follows:-- The accused and the de facto complaint are relatives. The de facto complainant is a housewife, aged about 42 years on the date of the incident. She is having two children. One of the sons is physically handicapped. The accused used to tease and ridicule the physically handicapped son of the de facto complainant. The son complained to the de facto complainant about the behavior of the accused. She came to the house of the accused and told the mother of the accused to forbid the accused from teasing the physically handicapped son. When the accused came to know about this, he became infuriated. In the evening on 8.2.1990, the de facto complainant went to the Ration Shop to purchase Ration articles. She purchased articles and was going back to her house. At about 6.30 p.m., she reached near the house of the accused. The accused came from behind and caught hold of her by hair and fisted her on her back, chest and head. He also uttered words “how she dared to make a complaint about his behavior towards her physically handicapped son to his mother”. He also exhorted that “the beating was the result of her complaint”. She cried aloud. People in the nearby places rushed to the place of occurrence. Then the revision petitioner ran away from the place of occurrence. She went to her house and thereafter went to the police station at 9.45 P.M. on that day and gave Ext.P1 F.I. Statement. The Sub Inspector of Police registered Ext.P4 FIR under S.354 of Indian Penal Code and forwarded the same to the Court. Then the revision petitioner ran away from the place of occurrence. She went to her house and thereafter went to the police station at 9.45 P.M. on that day and gave Ext.P1 F.I. Statement. The Sub Inspector of Police registered Ext.P4 FIR under S.354 of Indian Penal Code and forwarded the same to the Court. He conducted further investigation and filed the final report alleging, that the revision petitioner committed the offence punishable under S.354 of Indian Penal Code. 3. When the petitioner appeared before the Magistrate, the substance of accusation was read over and explained to him. He denied the allegations. On the side of prosecution, PWs.1 to 6 were examined. Exts.P1 to P4 proved and marked. After the prosecution evidence was over, the revision petitioner was questioned under S.313 of the Code of Criminal Procedure. He denied all the incriminating circumstances against him brought out during evidence. According to him, his sister and himself were attacked by the son of the de facto complainant and others. He was taken to the Medical College Hospital and treated there. On the side of accused, D.Ws.1 and 2 were examined. Exts.D1 to D5 proved and marked. The learned Magistrate after trial found the petitioner guilty of the offence punishable under S.354 IPC, convicted and sentenced him as aforesaid. Those conviction and sentence were affirmed by the learned Sessions Judge. Those judgments are under challenge in this Criminal Revision Petition. 4. In view of the fact that the petitioner was the first offender and he is now aged more than 55 years, this Court called for a report from the District Probation Officer to find out whether the petitioner can be released under the provisions of the Probation of Offenders Act. A report was received and thereafter the matter was heard. 5. The learned counsel appearing for the petitioner has argued that even if the entire case put forward by the prosecution is accepted as such, it will not disclose any offence under S.354 of Indian Penal Code. It will only prove an offence under S.323 of Indian Penal Code. It is argued that offence under S.323 is a non-cognizable offence and hence S.354 was incorporated with a mala fide intention. 6. It will only prove an offence under S.323 of Indian Penal Code. It is argued that offence under S.323 is a non-cognizable offence and hence S.354 was incorporated with a mala fide intention. 6. The learned Public Prosecutor has argued that after analyzing the evidence both the Courts had concurrently found the petitioner guilty of the offence charged against him and as such the Criminal Revision Petition is only to be dismissed. 7. As I already stated, the allegation against the petitioner was that he manhandled the de facto complainant, who was a housewife aged about 42 on the time of incident. The gist of the prosecution case is that the accused used to tease and ridicule a physically handicapped son of the de facto complainant who was examined as PW1. PW1 came to the house of the revision petitioner met his mother and asked her to forbid the accused from teasing her son. The accused became angry and because of that enmity, he caught hold of PW1 by hair and fisted on her back, chest and head. The words alleged to have been uttered by the accused shows that he fisted the de facto complainant because of her complaint regarding the behavior of the accused towards her physically handicapped son. PW1 had very specifically stated that on the previous day she went to the house of the accused and asked the mother of the accused to admonish him and because of that enmity, the accused fisted her at the public road. The prosecution examined three witnesses to prove the incident. PW1 is the de facto complainant herself. She deposed about the incident. PW2 is the brother­ in-law of PW1. According to him, he is running a tea shop near the place of occurrence and hence he saw the incident. PW3 is the brother of the de facto complainant. It is argued that PWs.2 and 3 are not independent witnesses and they are highly interested against the accused. Merely because PWs.2 and 3 are related to PW.1, their evidence cannot be discarded. The oral evidence of PWs.1 to 3 is corroborated by the medical evidence also. So, the evidence on record clearly shows that at or about 6.30 P.M. on 8.2.1990 the accused caught hold of the de facto complainant by hair and fisted her. 8. Merely because PWs.2 and 3 are related to PW.1, their evidence cannot be discarded. The oral evidence of PWs.1 to 3 is corroborated by the medical evidence also. So, the evidence on record clearly shows that at or about 6.30 P.M. on 8.2.1990 the accused caught hold of the de facto complainant by hair and fisted her. 8. The next question to be considered is whether the acts alleged against the petitioner constitutes an offence under S.354 of Indian Penal Code. The learned counsel appearing for the petitioner has relied on the decisions reported in Ram Das v. State of W:B., AIR 1954 SC 711, and State of Punjab v. Major Singh, AIR 1967 SC 63, and argued that even if the entire evidence is accepted as such, no offence punishable under S.354 is established in this case. S.354 of Indian Penal Code reads as follows:-­ “354. Assault or criminal force to woman with intent 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 punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”. S.354 and S.376 are two sections in the Indian Penal Code intending to protect women against the sexual lust of men. S.354 is enacted in the interest of decency and morals. It is not the act of outraging the modesty that is made an offence under this Section. In order to constitute an offence under the Section, there must be an assault or use of criminal force to any woman with the intention or knowledge that the woman’s modesty will be outraged. So, in order to convict a person for an offence under S.354 of the Indian Penal Code, the prosecution has to prove that the accused assaulted or used criminal force and that assault or criminal force was used with an intention to outrage the modesty of the victim. In Ram Das case (supra) it was held as follows:-­ “Where an accused is tried for an offence under S.354, and an assault is proved, the next question to be considered is whether he did so with intent to outrage the woman’s modesty, or with the knowledge that it would be outraged”. In Ram Das case (supra) it was held as follows:-­ “Where an accused is tried for an offence under S.354, and an assault is proved, the next question to be considered is whether he did so with intent to outrage the woman’s modesty, or with the knowledge that it would be outraged”. It is also well settled position of law that the reaction of the victim is not the sole criteria to decide the nature of the offence. The essence of a woman’s modesty is her sex and the culpable intention of the accused is the crux of the matter. The reason of a woman to the act of the accused can be rejected. In Major Singh’s case (supra), it was held that the test of outrage of modesty must be whether a reasonable man will think that the act of the offender was intended to or was known to be likely to outrage the modesty of the woman. In considering the question, he must imagine the woman to be a reasonable woman and keep in view all circumstances concerning her, such as, her station and way of life and the known notions of modesty of such a woman. 9. Modesty is the quality of being modest, which means, as regards woman, decorous in manner and conduct. Modesty is related to the sense of propriety of behavior in relation to the woman against whom the offence is said to have been committed. Neither the use of criminal force alone nor act of outraging the modesty alone is not sufficient to attract an offence under S.354 IPC. 10. In this case, the evidence adduced clearly shows that the victim was assaulted. But, that alone is not sufficient to convict the accused under S.354. It has to be proved that the accused assaulted the victim with intend to outrage her modesty. The allegation in the FIR was that the accused fisted the victim by catching hold of her hair because he did not like the action of the victim coming to his house and telling his mother about his behavior towards the son of the victim. The evidence of PWs.1 to 3 is also to that effect. There is absolutely nothing on record to show that the accused uttered any indecent words or he had any intention to use the victim to satisfy his lust. The evidence of PWs.1 to 3 is also to that effect. There is absolutely nothing on record to show that the accused uttered any indecent words or he had any intention to use the victim to satisfy his lust. So, even if the entire evidence adduced by the prosecution is accepted, the same proves only an offence under S.352 of Indian Penal Code. The offence under S.352 is a lesser offence in relation to an offence under S.354 IPC. So, the revision petitioner is liable to be convicted for that offence in this proceedings itself. I alter the conviction of the revision petitioner from one under S.354 to S.352 of Indian Penal Code. 11. Now I shall consider the sentence imposed on the revision petitioner in this case. The maximum sentence that can be awarded under S.352 IPC is three months imprisonment. The evidence on record shows that the revision petitioner is aged 52 years and he is a first offender. The incident took place in the year 1990. This Court has called for a report from the Probation Officer, which shows that the petitioner can be released on probation. So, I am of the view that instead of sentencing the petitioner to undergo imprisonment, he can be released under S.4 of the Probation of Offenders Act. It is also just and proper to order the petitioner to pay a compensation of Rs.2,000/­to PW1 under S.5 of the Probation Offenders Act. In the result, the Criminal Revision Petition is allowed in part. The conviction and sentence imposed on the revision petitioner under S.354 IPC is set aside and he is found not guilty of that offence. But, he is found guilty of an offence punishable under S.352 IPC. Instead of sentencing the petitioner to undergo imprisonment or to pay fine at once, he will be released on probation on condition that he enters into a bond for six months to appear and receive sentence when called upon during the above said period of six months and in the meantime to keep the peace and be of good behaviour. The petitioner is directed to pay a compensation of Rs.2,000/- (Rupees two thousand only) to PW.1. The petitioner is given two months’ time to pay the amount of compensation. The petitioner is directed to pay a compensation of Rs.2,000/- (Rupees two thousand only) to PW.1. The petitioner is given two months’ time to pay the amount of compensation. In case he fails to pay the compensation, the same will be recovered as if it is a fine imposed on the petitioner in accordance with the provisions of the Code of Criminal Procedure.