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2012 DIGILAW 842 (MP)

Ramsingh v. State of M. P.

2012-09-03

PRAKASH SHRIVASTAVA

body2012
JUDGMENT 1. This appeal under section 374 of the CrPC is directed against the judgment dated 28th July, 1998 passed by the Court of Sessions Judge, Rajgarh (Biaora), Madhya Pradesh in S.T. No.192/1996 convicting the appellant for offence under section 450 of the IPC and sentencing him for three years RI with fine of Rs.50/- and also convicting him for offence under section 376(1) read with section 511 of the IPC and sentencing him for five years RI and fine of Rs.50/- and also providing for the default sentence of five days and 25 days RI respectively. 2. The prosecution story is that Nourangbai, a widow was sleeping in her house. When at 2 O’clock midnight some one from the outside opened the latch of the door and came in. On enquiry from Nourangbai he said that he was Ramsingh and he had come to do “Khotta Kaam” with her and on her refusal he squeezed her breast and lifted her khagra. Nourangbai made some excuse and came out and shouted on which the accused run away. It was a moon light night, therefore, at the time of running away, the appellant was identified by Pirulal and Gopal. FIR of the incident Ex.P-1 was lodged by Nourangbai the next day. The offence was registered and the investigation was conducted and thereafter challan was filed against the appellant. 3. The appellant abjured the guilt and the trial took place in which the trial Court by the aforesaid judgment, convicted and sentenced the appellant for the offence as mentioned above. 4. Learned counsel for appellant submits that the trial Court has committed an error in convicting the appellant for offence under section 376 read with section 511 of the IPC whereas the said offence is not made out. He submits that at the most the offence under section 354 of the IPC is made out. He further submitted that the offence under section 450 of the IPC is also not made out for the reasons mentioned above and that the appellant has already undergone a substantial period of sentence. 5. Learned counsel for respondent has supported the impugned judgment and submitted that the appellant has rightly been convicted by the trial Court for the offences mentioned above and sentenced accordingly. 6. I have heard the learned counsel for parties and perused the record. 7. 5. Learned counsel for respondent has supported the impugned judgment and submitted that the appellant has rightly been convicted by the trial Court for the offences mentioned above and sentenced accordingly. 6. I have heard the learned counsel for parties and perused the record. 7. PW1 Nourangbai has stated that when she was sleeping in her house, the appellant at 2 O’clock in the night opened the latch and entered her house. According to her, the appellant had stated that he had come to do “khotta kaam” with her and had squeezed her breast and lifted her khagra and had sat on her, thereafter on some excuse she had gone out and had shouted and the appellant had run away. She has not stated anything further in her statement. 8. PW2 Gopal and PW3 Pirulal had seen the appellant running away from the house of the prosecutrix. 9. In the present case, there is no evidence on record that the appellant had done any intercourse with the prosecutrix. Even sufficient evidence is not there that the appellant had reached any advance stage for making an attempt for committing the sexual intercourse. The only evidence is in respect of making a statement to do “Khotta Kaam”, lifting the khagra and pressing the breast. Such an act of the appellant would at the most constitute an offence under section 354 of the IPC since it was an attempt by the appellant to outrage the modesty of Nourangbai. The Supreme Court in the matter of Raju Pandurang Mahale v. State of Maharashtra and another, reported in AIR 2004 SC 1677 has taken the view that the act of pulling a woman, removing her sari, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of an woman. 10. The conviction of the appellant is also with the aid of section 511 of the IPC but the attempt to commit the offence under section 376 of the IPC is not made out. Thus, the conviction of the appellant for offence under section 376/511 of the IPC cannot be sustained and accordingly the appellant is convicted for an offence under section 354 of the IPC instead of an offence under section 376/511 of the IPC. 11. Thus, the conviction of the appellant for offence under section 376/511 of the IPC cannot be sustained and accordingly the appellant is convicted for an offence under section 354 of the IPC instead of an offence under section 376/511 of the IPC. 11. So far as the conviction of the appellant under section 450 of the IPC is concerned, the evidence of PW1 Nourangbai, PW2 Gopal and PW3 Pirulal clearly establishes that the appellant had committed house trespass. Section 450 of the IPC is attracted when house trespass is done in order to commit an offence punishable with imprisonment for life. Since the appellant has now been convicted for offence under section 354 of the IPC which is not an offence punishable with imprisonment for life, therefore, the conviction under section 450 of the IPC cannot be maintained and the conviction is converted into section 451 of the IPC. Looking to the nature of offence and other circumstances, the appellant is awarded sentence of two years RI for the offence under section 354 of the IPC and also sentence of two years RI for offence under section 451 of the IPC. The appellant has already undergone the sentence awarded by this Court. He is on bail. Bail and surety bond furnished by him shall stand discharged. 12. The appeal is allowed to the extent indicated above.