Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 1081 (MP)

Lav v. State of M. P.

2013-09-10

A.K.SHRIVASTAVA

body2013
JUDGMENT A.K. Shrivastava, J. By putting Section 397/401, Cr.P.C. in motion, the accused-applicant has filed this revision application challenging the order dated 9-5-2013 passed by learned First Additional Sessions Judge, Khandwa in Sessions Trial No. 82/2013 framing charge under Section 376(1), IPC. 2. Learned Counsel for the applicant submits that amendment in Section 375 of the Penal Code has been enforced with effects from 3-2-2013 but according to the amended Section 375 also, the averments made by the prosecutrix in the FIR do not tally with the definition of rape. Hence, it is prayed that the charge framed under Section 376(1), IPC be quashed. 3. On the other hand, Shri Sudesh Verma, learned Public Prosecutor submits that learned Trial Court did not commit any error in framing the charge under Section 376(1), IPC. 4. Having heard learned Counsel for the parties, I am of the view that this revision application deserves to be allowed. 5. On bare perusal of the FIR, it is revealed that as per the allegations, firstly the applicant offered to give kiss to the prosecutrix and when she refused, he caught hold her breasts. To me, this act of the applicant does not tally with the amended meaning of rape, which reads thus:-- “375. Rape.--A man is said to commit 'rape' if he-- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-- First-- Against her Will. Secondly-- Without her consent. Thirdly-- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Secondly-- Without her consent. Thirdly-- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly-- With her consent, when the man knows that he is not her husband and that her consent is given, because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly-- With her consent when at the time of giving such consent by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly-- With or without her consent, when she is under eighteen years of age. Seventhly-- When she is unable to communicate consent. Explanation 1:--For the purposes of this section, 'vagina' shall also include labia majora. Explanation 2:--Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1:--A medical procedure or intervention shall not constitute rape. Exception 2:--Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. 6. I do not find any merit in the contention of learned Public Prosecutor that because the applicant had manipulated the part of the body of the prosecutrix (her breasts), therefore, it would be deemed that he kept his hands on her breasts to cause penetration into her vagina, urethra or anus and, therefore, the act of the applicant would come with the ambit and scope of Section 375(c) of the Penal Code. The word "manipulate" has been explained in the Major Law Lexicon by P. Ramanatha Aiyar, 4th Edition 2010, page No. 4120, which reads thus:-- Manipulate-- To work with the hands; to hand or manage; to turn to one's own purpose or advantage. The word "manipulate" has been explained in the Major Law Lexicon by P. Ramanatha Aiyar, 4th Edition 2010, page No. 4120, which reads thus:-- Manipulate-- To work with the hands; to hand or manage; to turn to one's own purpose or advantage. That apart, had it been such an intention of the Legislature that keeping the hand upon the breasts of a woman would come within the clause (c) of Section 375, IPC, instead of mentioning such an Act in the amended Section 354-A of the Penal Code, the ingredients of Section 354-A would have been inserted in clause (c) of Section 375, IPC. At this juncture, it would be germane to quote amended Section 354-A(1) of the Penal Code, which reads thus:-- “354-A. Sexual harassment and punishment for sexual harassment.-- (a) A man committing any of the following acts:-- (i) Physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) A demand or request for sexual favours; or (iii) Showing pornography against the will of a woman; or (iv) Making sexually coloured remarks, shall be guilty of the offence of sexual harassment.” Thus, I do not have any scintilla of doubt in my mind in order to hold that the alleged act of the applicant would not come within any of the clauses of Section 375 of the Penal Code. However, the act of applicant would come if it is proved by cogent evidence within the purview of Section 354-A(i). The learned Trial Court is hereby directed to frame a separate charge under this clause. However, it is made clear that this Court has only directed to frame additional charge of Section 354-A of the Penal Code and has not expressed any opinion that the applicant has committed such an offence. The Trial Court shall be absolutely free to decide this point on the touchstone and anvil of the evidence placed on record. 7. Since even in the amended provision of Section 375, IPC, the acts of applicant as stated by the prosecutrix in the FIR do not tally with that provision, therefore, according to me, the learned Trial Court erred in framing the charge under Section 376(1), IPC against the applicant. The said charge is accordingly quashed. However, additional charge under Section 354-A(1)(i) be also framed against the applicant. 8. This revision application is accordingly allowed. The said charge is accordingly quashed. However, additional charge under Section 354-A(1)(i) be also framed against the applicant. 8. This revision application is accordingly allowed. The impugned order is hereby set aside and the charge framed under Section 376(1), IPC is quashed.