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2011 DIGILAW 45 (CHH)

SANJAY DAS v. STATE OF M. P.

2011-02-03

PRITINKER DIWAKER

body2011
JUDGMENT 1. This appeal is directed against the impugned judgment and order dated 26.02.1996 passed by Special Judge, Raipur in Special Case No. 137/1996 convicting the accused/appellant for the offences punishable under Sections 1 (1) (xi) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act and 506 part-II of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for six months with fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for three months u/S 3(1)(xi) of the SC/ST Act, to undergo rigorous imprisonment for six months u/S 506 part-II IPC. Both the sentences were ordered to run concurrently. 2. Brief facts of the case are that on 15.11.1993 at about 6 pm F.I.R. (Ex.P-1) was lodged by the prosecutrix (PW-1), a married lady aged about 26 years alleging in it that on 14.11.1993 at about 7.00 pm when she had gone to her newly constructed house along with her servant Kumar Singh (PW-2), the accused/appellant reached there, caught hold of her hand and tried to pull her by saying that he would do the bad work with her and when she cried for help, her servant who was in the other room, came there and upon his intervention, accused/appellant left her by giving a threat not to disclose the incident to anyone. After investigation challan was filed on 29.12.1993 under Sections 354 and 506 of the Indian Penal Code and 3 (1) (xi) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act. 3. So as to hold the accused/appellant guilty, prosecution has examined as many as 5 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges leveled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant for the offences as mentioned above. Hence this appeal. 5. Counsel for the appellant submits that there is no evidence on record to show that the alleged act has been committed by the accused/appellant knowing fully well that the prosecutrix belonged to Scheduled Caste community. He submits that unless this evidence is brought on record, the appellant cannot be convicted under Section 3 (1) (xi) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act. He submits that unless this evidence is brought on record, the appellant cannot be convicted under Section 3 (1) (xi) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act. He further submits that there is no evidence on record to show that the alleged act was done by the appellant with intent to dishonour or outrage her modesty. 6. On the other hand supporting the impugned judgment it has been argued by the State counsel that conviction of the accused/appellant is in accordance with law and there b no infirmity in the same. She submits that in F.I.R. the prosecutrix has categorically stated as to for what purpose accused appellant caught hold of her and if in the court statement, this fact has not been stated by her, it will not make any difference. She has further argued that prosecution is not required to prove that the alleged act has been committed by the accused/appellant knowing fully well that the prosecutrix belonged to Scheduled Caste community. 7. I have heard counsel for the parties and perused the material available on record including judgment impugned. 8. Prosecutrix (PW -1) has stated in her evidence that she belong to 'Gada' caste which comes under the category of Scheduled Caste community. She knows the accused/appellant as he belongs to her village and by caste he is Vaishnav. She has further stated that on the date of incident i.e. on Diwali festival she had gone to her newly constructed house along with her servant Kumar Singh and when she was lighting the lamp outside her house and her servant was doing the same inside, accused/appellant came there and by holding both of her hands tried to drag her. On cry being raised by her, her servant came there and asked the accused/appellant as to why he was doing so on which the accused/appellant threatened him to life. She has further stated that thereafter, the incident was narrated by her to her husband and mother-in-law but the report could not be lodged on that day because it was late in the night. She has further stated that thereafter, the incident was narrated by her to her husband and mother-in-law but the report could not be lodged on that day because it was late in the night. Kumar Singh (PW-2) - servant of the prosecutrix has also reiterated the statement as made by the prosecutrix by saying that on the date of incident he was in other room of the house of the prosecutrix and upon hearing her cries when he came, he saw the accused/appellant holding the hand of the prosecutrix and pulling her. He has further stated that when he asked the appellant not to do this, he was threatened by him of his life and, thereafter, accused/appellant left the place. 9. Premlal (PW-3) - husband of the prosecutrix has stated that on the date of incident his wife had informed him about the fact that accused/appellant caught hold of her and pulled her. Bhagwati (PW-4) - mother-in-law of the prosecutrix has made almost similar statement as has been made by the prosecutrix about the act of the accused/appellant. A.S. Netam (PW-5) is the investigating officer who has duly supported the prosecution case. 10. I have heard counsel for the parties and perused the material available on record including judgment impugned. 11. Though in the F.I.R. and in her case diary statement recorded under Section 161 Cr.P.C., the prosecutrix has stated that the accused/appellant caught hold of her hand with an intention to outrage her modesty and to do the bad work with her but in the Court statement she has merely stated that when she was lighting the lamp outside her house, accused/appellant came there and' by holding both of her hands tried to pull her, and on hearing her cries her servant came there and upon his intervention, the accused/appellant had left her. There is absolutely no evidence on record to show that the entire act has been done by the accused/appellant with an intention to assault or with an intention to dishonour or outrage the modesty of the prosecutrix because she belongs to Scheduled Caste community. Nowhere in her-court statement it has been stated by the prosecutrix or any other witness that as the prosecutrix belonged to Scheduled Caste category, this act has been done by the accused/appellant. Nowhere in her-court statement it has been stated by the prosecutrix or any other witness that as the prosecutrix belonged to Scheduled Caste category, this act has been done by the accused/appellant. The mere fact that the prosecutrix happened to be a lady belonging to Scheduled Caste does not attract the provisions of the Act unless evidence otherwise is available. 12. In view of this, this Court is of the considered opinion that the accused/appellant cannot be convicted under the special provision. However, considering the evidence available on record and the act done by the accused, he is liable to be convicted under Section 354 of the Indian Penal Code. The judgment cited by counsel for the appellant i.e. Nanka s/o Chimliya, Hardaspur Vs. State of Madhya Pradesh is of no help to him because in the said case the dragging of the prosecutrix was not proved whereas in the case in hand, it is apparent that the prosecutrix was all alone in her house and that is why the accused/appellant entered the house, caught hold of her and had tried to pull her. Furthermore, till the entry of servant Kumar Singh (PW -2), the appellant was holding the prosecutrix and he left her only after the intervention of Kumar Singh (PW-2). 13. While considering Section 354 of the IPC, in the matter of Tarkeshwar Sahu Vs. State of Bihar (now Jharkhand the Apex Court has held as under : "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 IPC are present in the instant case. 38. Section 354 IPC reads as under: "354. Assault or criminal force to woman with intent to outrage her modesty. - Whoever assault 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 wit.1 imprisonment of either description for a term which may extend t) two years, 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 or 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. So far as the offence under Section 354 IPC is concerned, intention to outrage the modesty of a woman or knowledge that the act or 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 family owing to her sex. 41. "Modesty" is given as, "Womanly propriety of behaviour; scrupulous chastity of though, speech and conduct" (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. 42. The ultimate test for ascertaining whether the modesty of a woman has been outraged, assaulted on insulted is that the action of the offender should be such that it may be perceived as one which is capable of shocking the sense of decency of a woman 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 a affront to the normal sense of feminine decency but also an affront to the dignity of the lady. 43. The word "modesty" is not to be 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. 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. 45. In State of Kerala Vs. Hamsa reported in (1988) 3 Crimes 161 (Ker) it was stated as under : "What the legislature had in mind when it used to word modesty in Sections 354 and 509 of the Penal Code was protection of an attribute which is peculiar to woman as a virtue which attaches to a female on account of her sex. Modesty is the attribute of female sex and she possesses it irrespective of her age. The two offences were created not only in the interest of the woman concerned, but in the interest of public morality as well. Modesty is the attribute of female sex and she possesses it irrespective of her age. The two offences were created not only in the interest of the woman concerned, but in the interest of public morality as well. The question of infringing the modesty of a woman would of course depend upon the customs and habits of the people. Acts which are outrageous to morality would be outrageous to modesty of women. No particular yardstick of universal application can be made for measuring the amplitude of modesty of woman, as it may vary from country to country or society to society." 46. A well known authour Kenny in his book Outlines of Criminal Law had 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 for 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 reported in AIR 1967 SC 63 : 1967 Cri LJ a three-Judge Bench of this court considered the question - whether modesty of a female child of 7½ 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 with 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 a modesty capable of being 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. 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 anesthesia, she may be sleeping, she may be unable to appreciate the significance of the act; nevertheless, the offender is punishable under the section. A female of tender age stands on a somewhat different footing. Her body is 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. Nevertheless from her very birth she possesses the modesty which is the attribute of her sex." 48. In Kanhu Charan Patra Vs. State of Orissa reported in 1996 Cri.LJ. 1151 (Ori.) the Orissa High Court stated as under: "The accused entered the house and broke open the door which two girls of growing age had closed from inside and molested them but they could do nothing more as the girls made good their escape. On being prosecuted it was held that the act of the accused was of grave nature and they had committed the same in a daredevil manner. As such, their conviction under Sections 354/34 was held proper." 49. The High Court of Delhi in Jai Chand Vs. State reported in 1996 CriLJ 2039 (Del) observed as under : "The accused in another case had forcibly laid the prosecutrix on the bed and broken her pyjama's string but made no attempt to undress himself and when the prosecutrix pushed him away, he did not make efforts to grab her again. It was held that it was not an attempt to rape but only outraging of the modesty of a woman and conviction under Section 354 was proper. 51. The Court in State of Karnataka Vs. Khaleel reported in 2004 Cri. LJ (NOC) 10 (Kant) stated as follows: "The parents reached the sugarcane field when accused was in process of attempting molestation and immediately he ran away from the place. There was no evidence in support of allegation of rape and accused was acquitted of charge under Section 376 but he was held liable for conviction under Section 354/511 IPC." 52. LJ (NOC) 10 (Kant) stated as follows: "The parents reached the sugarcane field when accused was in process of attempting molestation and immediately he ran away from the place. There was no evidence in support of allegation of rape and accused was acquitted of charge under Section 376 but he was held liable for conviction under Section 354/511 IPC." 52. The Court in Huna Vs. Emperor reported in 15 IC 309: (1912) 13 Cri.LJ 469 stated as follows: "The accused took off a girl's clothes, threw her on to the ground and then sat down beside her. He said nothing to her nor did he do anything more to her: [It is held] that the accused committed an offence under Section 354 IPC and was not guilty of an attempt to commit rape." 53. The Court in Bisheshwar Murmu Vs. State of Bihar reported in 2004 Cri. LJ. 326 (Jhar) stated as under: "The evidence showed that the accused caught hold of the hand of the informant/victim and when one of the prosecution witnesses came there hearing alarm of the victim, offence under Sections 376/ 511 was not made out and conviction was converted into one under Section 354 for outraging the modesty of the victim." 54. The Court in Keshab Padhan Vs. State of Orissa reported in 1976 Cutt LR (Cri) 236 stated as under: "The test of outrage of modesty is 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 the instant case, the girl was 15 years of age and in the midnight while she was coming back with her mother the sudden appearance of the petitioner from a lane and dragging her towards that side sufficiently established the ingredients of Section 354." 55. The Court in Ram Mehar Vs. State of Haryana reported in 1998 Cri LJ 1999 (P & H) stated as under : "The accused caught hold of the prosecutrix, lifted her and then took her to a bajra field where he felled her down and tried to open her salwar but could not do so as in order to make the accused powerless the prosecutrix had injured him by giving a blow of the sickle. The accused failed to give his blood sample with the result it could be presumed that his innocence was doubtful. Ocular evidence of the prosecutrix was also corroborated by other evidence. It was held that conviction of the accused under Sections 454,376/511 was proper but taking a lenient view only tow years RI and a fine of Rs.1000 was imposed on him." 14. Considering the above legal position and the facts and circumstances of the case, the conviction of the accused/appellant under Section 3 (1) (xi) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act is set aside. Likewise, there is no cogent legally admissible evidence in respect of the Section 506 part II of the IPC and, therefore, the conviction of the accused/appellant under Section 506 part II is set aside, this Court is of the view that instead of offence under Section 3 (1) (xi) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, offence under Section 354 IPC is clearly made out against the accused/appellant. Thus he is convicted under Section 354 of the Indian Penal Code. 15. As regards sentence part, it has been argued by the counsel for the appellant that the incident took place in the year 1993 i.e. about 17 years back, at the time of commission of offence accused/appellant was a young boy of 19 years and now he is aged about 36 years, instead of sending him to jail some fine amount may be imposed upon him because jail sentence is not mandatory for the offence under Section 354 of the Indian Penal Code. He further argued that the appellant is willing to reasonably compensate the prosecutrix. This submission of the counsel for the appellant is not seriously opposed by the state counsel. 16. Accordingly, in the peculiar facts and circumstances of the case, jail sentence is not desirable to be imposed on the appellant. However, instead of any further jail sentence, fine of Rs. 11.000/- is imposed upon the appellant and out of which Rs.10,000/- would be payable to the prosecutrix. This be done within six months from the date of receipt of copy of this order. If the amount is not deposited within the stipulated period, the appellants shall undergo the I rigorous imprisonment for six months. 17. Appeal is thus partly allowed. Appeal Partly Allowed.