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2008 DIGILAW 1002 (PNJ)

Manoj v. State Of Haryana

2008-05-08

A.N.JINDAL

body2008
Judgment A.N.Jindal, J. 1. Attempt to rape upon a 7 years old girl (name not disclosed) at the hands of the accused-appellant Manoj (herein referred as the accused) dragged him to the Court of law, where after a long trial, he earned conviction under Section 376 read with Section 511 IPC, vide judgment dated 2.3.1998 passed by the learned Additional Sessions Judge, Gurgaon and was slapped with sentence of 3 years rigorous imprisonment and fine of Rs. 1000/-. 2. Ram Shanker, Ahir by caste, a resident of village Kanhai District Gurgaon had a daughter (name not disclosed being prosecutrix) aged about 7 years. On 24.3.1995, at about 2.00 p.m. she had gone to answer the call of nature in the Gatwar, where she fell prey in the hands of the accused who tried to commit rape upon her. The screams of the prosecutrix attracted Omwati wife of Har Pal. At this, the accused fled away towards the fields. On the basis of the aforesaid statement made by the complainant, a case under Section 376 read with Section 511 IPC was registered against the accused. Consequently, it was investigated and ultimately challan was presented in the Court. On commitment, the accused was charged under Section 376 read with Section 511 IPC to which he pleaded not guilty and claimed trial. 3. In order to substantiate the charges, the prosecution examined HC Mohan Lal (PW1), Mul Chand Punia (PW2), Dr. Vandana Narula (PW3), Dr. B.B. Aggarwal (PW4), Prosecutrix (PW5), Ram Shanker complainant (PW6), Dr. K.R. Yadav (PW6- A) and ASI Dharamvir Singh (PW7). 4. When examined under Section 313 Cr.P.C. the accused denied all the allegations and pleaded his false implication due to party faction in the village. The trial ended in conviction. Hence this appeal. Arguments heard. Record perused. 5. The main question into controversy is whether the accused attempted to commit rape upon the prosecutrix and under which provisions of law the offence committed by the accused is punishable. In order to determine the attempt of rape, we need to reproduce the medical evidence of Dr. Vandana Narula (PW3), who on 24.3.1995 medico-legally examined the prosecutrix. She observed that her secondary sex characters were not developed nor there were any axillary or pubic hair present. Regarding menstrual history, patient had not attained menarche. There was no mark of external injury anywhere on her body. Vandana Narula (PW3), who on 24.3.1995 medico-legally examined the prosecutrix. She observed that her secondary sex characters were not developed nor there were any axillary or pubic hair present. Regarding menstrual history, patient had not attained menarche. There was no mark of external injury anywhere on her body. On local examination, she found some congestion at the introits outside the hymen with bleeding point at six and three Oclock position. Tenderness was present. Hymen appears to be intact and does not admit tip of finger." 6. The prosecutrix while appearing in the witness box has deposed regarding the factum of attempt to rape while stating that the accused inserted his fingers in her private part. Now the question remains that inserting of the finger in the private part of the girl aged about 7 years amounts to rape, the answer to this finds mentioned in the judgment Masiripamu Nukaiah Nukaraju v. State of A P., 2004(1) RCR(Crl.) 33 (A.P.), wherein it was observed as under : "28. The evidence of P.W.2 clearly discloses that she was taken forcibly and her clothes were removed and that the accused inserted his fingers into her vagina forcibly and caused damage. The said act certainly falls under the offence under Section 354 IPC. Moreover, the injuries were said to have been caused to the private part of P.W.2. It is contended that offence at the best falls under Section 324 and not under Section 354 or under Section 376 IPC. I, respectfully disagree with the said contention. For, it has to be seen whether causing damage to the private part said to endanger the life of a person. Grievous hurt has been defined under Section 320 IPC. It reads as follows : "320. Grievous Hurt - The following kinds of hurt only are designated as "grievous". Firstly - Emasculation Secondly - permanent privation of the sight of either eye. Thirdly - permanent privation of the hearing of either ear. Fourthly - privation of any member or joint. Fifthly - destruction or permanent impairing of the powers of any member or joint. Sixthly - permanent disfiguration of the head or face. Seventhly - Fracture or dislocation of a bone or tooth. Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits." 7. Sixthly - permanent disfiguration of the head or face. Seventhly - Fracture or dislocation of a bone or tooth. Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits." 7. It would be worth while to mention here that penetration of the penis in the private part of the girl is essential requirement for completion of the offence under Section 376 IPC and the diminished gravity of the offence where some attempt has been made by fingers, certainly may not fall within the purview of Section 376 read with Section 511 IPC. At the most, it would amount to an assault to womanhood, therefore, the offence would fall only under Section 354 IPC and if any damage is caused to the vagina then the accused could be convicted and sentenced for simple or grievous hurt as the case maybe. A similar point came into consideration before this court in case Nanak Chand v. State of Haryana, 2006(1) RCR(Crl.) 14 (P&H), wherein it was observed that in the circumstances when the accused undressed himself as also the prosecutrix and lay naked on her and thereafter he fled away on seeing the mother of the prosecutrix, the accused could be held guilty at the most under Section 354 and 342 IPC and it did not amount to attempt to rape. 8. Here in this case, the accused having not inserted his private part in the vagina but the fingers only could hardly be said to have attempted to commit rape. The other question raised by the learned counsel for the appellant is that the prosecutrix being of a very tender age had no modesty to be outraged, therefore, in such circumstances, no offence under Section 354 IPC is made out. 9. Having deliberated over the issue, the provisions of Section 354 IPC, provide for penalty against the assault or use of criminal force to a woman for outraged her modesty. The essential ingredients of Section 354 IPC are as under : "(a) that the assault must be on a woman; (b) that the accused must have used criminal force on her; and (c) that the criminal force must have been used on the woman intending thereby to outrage her modesty. " 10. The essential ingredients of Section 354 IPC are as under : "(a) that the assault must be on a woman; (b) that the accused must have used criminal force on her; and (c) that the criminal force must have been used on the woman intending thereby to outrage her modesty. " 10. Section 10 IPC explains that "woman" means a female human being, of any age having female characteristics. Expression "woman" as used in Section 354 IPC is in conformity with this explanation. The offence punishable under Section 354 IPC is an assault or use of criminal force against a woman with an intention to outrage her modesty. Now the other question before me is "what amounts to outraging the modesty ? Though the word "modesty" has not been defined in the Indian Penal Code but Shorter Oxford Dictionary, 3rd Edition, defines the word "modesty" in relation to woman as under : "Decorous in manner and conduct; not forward or lower; share fast; scrupulous chastity." 11. In other words, modesty is defined as quality of being modest; and in relation to a woman, womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct. In order to guilty find the accused of an assault with intent to commit rape, it is desired from the prosecution that it should establish that when the accused laid hold of the prosecutrix not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The difference between the offence of attempt to commit rape and indecent assault is that in the case of former, there could be some action on the part of the accused which would show that he was just going to have sexual connection with the prosecutrix, but in the later case the accused intended to or was known to be likely to outrage her modesty short of rape. Thus intention and knowledge of the accused are the ingredients of the offence and not a womans feeling. Thus intention and knowledge of the accused are the ingredients of the offence and not a womans feeling. Earlier view was that in order to make gut a case of outraging the modesty was the reaction of the woman concerned, but the Apex Court in case State of Punjab v. Major Singh, AIR 1967 Supreme Court 63 approved the view that the word "modesty" meant accepted notions of womanly modesty and not the notions of the woman against whom the offence was committed. They disapproved the earlier view by observing as under : "Section 354 speaks of outraging the modesty of a woman and at first blush seems to require that the outrage must be felt by the victim herself. But such an interpretation would leave out of the purview of the section assaults not only on girls of tender age but on even grown up woman when such a woman is sleeping and did not wake up or is under anesthesia or stupor or is an idiot. It may also perhaps under certain circumstances exclude a case where the woman is of depraved moral character. Could it be said that the legislature intended that the doing of any act to or in the presence of any woman which according to the common notions of mankind is suggestive of sex, would be outside this section unless the woman herself felt that it outraged her modesty ? Again, if the sole test to be applied is the womans reaction to a particular act, would it not be a variable test depending upon the sensitivity or the upbringing of the woman ? These considerations impel me to reject the test of a woman`s individual reaction to the act of the accused. I, must, however, confess that it would not be easy to lay down a comprehensive test; but about this much I feel no difficulty. In my judgment when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind, that act must fall within the mischief of this section. What other kind of acts will also fall within it, is not a matter for consideration in this case. " 12. As a matter of fact, culpable intention of the accused is the crux of the matter. What other kind of acts will also fall within it, is not a matter for consideration in this case. " 12. As a matter of fact, culpable intention of the accused is the crux of the matter. Reaction of the woman may be relevant but its absence is not always decisive as for example when the accused with a corrupt mind stealthily touches the body of the woman of too tender age, and an idiot, deranged, or mentally upset, or a woman under the spell of anesthesia, in those cases also the offender is punishable under Section 354 IPC. 13. In the present case, immature girl of tender age i.e. 7 years old, when had gone to answer the call of nature, fell prey at the hands of the accused, he picked her up, made her naked and started fingering in her vagina causing some simple injuries to the hymen, therefore, in the circumstances, the offence committed by the accused is short of attempt to rape but shall be taken as criminal assault amounting to outrage the modesty of a woman, therefore, he has certainly committed an offence under Section 354/323 IPC. 14. The accused was also below 16 years of age, appears to have committed the crime in the prime of his youth, obviously without knowing consequences of the same. He has also undergone 23 days of the substantive sentence. He has already suffered a lot due to pendency of the present case and is a first offender. Under these circumstances, it would be in the fitness of the things if the sentence is reduced to that already undergone. 15. Consequently, I partly accept the appeal, set aside the impugned judgment, and convict the appellant under Section 354/323 IPC and sentence awarded to him is modified to that already undergone by him without alteration in the sentence of fine.