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2013 DIGILAW 38 (TRI)

Ram Chandra Das @ Ramu v. State of Tripura

2013-12-11

S.C.DAS

body2013
JUDGMENT S.C. Das, J. This criminal appeal under Section 374(2) of Cr.P.C. is directed against the Judgment and order of conviction and sentence dated 07.02.2009 passed by learned Additional Sessions Judge, Sonamura, West Tripura in Case No. S.T. 30 (WT/S) 2008. Learned Additional Sessions Judge found the accused-appellant guilty of commission of offence punishable under Section 354 of IPC and sentenced him to suffer R.I. for 6 months and to pay a fine of Rs. 5,000/- in default of payment of fine to suffer further R.1. for 1 month. The accused-appellant being felt aggrieved and dissatisfied with the Judgment and order of conviction and sentence preferred the present appeal on different ground. Heard learned senior counsel, Mr. A.K. Bhowmik for the appellant and learned Additional P.P., Mr. R.C. Debnath for the State-respondent. 2. Prosecution case, in short, is that the houses of informant Angaraj Sarkar and the accused-appellant Ramu Das were situated adjacent to each other having common boundary at village Debnagar under P.S. Melaghar, District - West Tripura. On 15.07.2008 (Tuesday) at about 11.00 a.m., P.W. 5 Paramita Sarkar, aged about 8 years along with her younger sister (P.W. 3), (victim girl) (name kept withheld), daughters of P.Ws. 1 and 2 were playing in the courtyard of the accused near a guava tree and at that time. the accused-appellant showing ’Antra’ fruit called the victim girl in his residential hut, closed the front door, stripped off her ’jangia’ and thereafter, tried to push his penis in the female organ of the victim girl. P.W. 5 saw the incident through the backside door and immediately rushed to her parents and reported the incident to her mother and at once, her mother rushed to the house of the accused, called him and enquired about the victim girl, but the accused first denied the fact of having the victim girl inside the room and when P.W. 2, the mother of the victim girl raised hue and cry and called the neighboured, the accused opened the door and let out the victim girl from the room. P.W. 2, mother of the victim girl found the accused wearing a towel, which was not in order and also found the ’jangia’ of the victim girl was not in order. P.W. 2, mother of the victim girl found the accused wearing a towel, which was not in order and also found the ’jangia’ of the victim girl was not in order. In the mean time, father of the victim girl also arrived there, who was having cut injuries in his leg and was not in a position to move freely. Other neighboured also came to whom P.W. 2 narrated the occurrence that the accused made attempt to commit rape on her minor daughter. The matter was reported to the village elders and the Panchayat and the Panchayat assuring a settlement asked the parents of the victim girl to attend a meeting after two days in the’ Anganwari Centre’ of the village and accordingly, the parents of the victim girl (P.Ws. 1 and 2) along with the girl attended the meeting, but neither the accused nor anybody from his house attended the meeting at the first instance. At about 10/11 p.m., they were called in the meeting and they denied the allegation. The parents of the victim girl was not satisfied with the outcome of the meeting and therefore, they went to other village elders seeking justice. When they failed to get justice, then P.W. 1, the father of the victim girl lodged the written FIR before the O.C. of Melaghar P.S. on 25.07.2008. Accordingly, police officer registered the case under Section 376 read with Section 511 of IPC and after investigation, submitted charge sheet against the accused-appellant for commission of offence punishable under Section376 read with Section 511 of IPC. 2.1. On commitment of the case to the Court of Session, learned Additional Sessions Judge framed charge against the accused for commission of offence punishable under Section 376/511 of IPC to which the accused pleaded not guilty and claimed to be tried. 2.2. In course of trial, prosecution examined 10 witnesses. Out of them, P.Ws. 1 and 2 are the parents of the victim girl. P.W. 1 lodged the F.I.R. P.W. 5 is the elder sister of the victim girl, aged about 8 years and is alleged to be the eye witness of the occurrence. P.W. 3 is the victim girl, who was produced before the Court, but being a girl aged about three and half years, she stated nothing about the occurrence before the Court. P.Ws. P.W. 3 is the victim girl, who was produced before the Court, but being a girl aged about three and half years, she stated nothing about the occurrence before the Court. P.Ws. 6, 7, 8 and 9 are all neighbours of the accused and the informant. P.W. 4 is the medical officer, who examined the victim girl. P.W. 10 is the I.O. of the case. 2.3. After conclusion of recording of prosecution evidence, the accused was examined under Section 313 Cr.P.C. and thereafter, in his turn, the accused examined three witnesses in his defence and out of them, D.Ws. 1 and 2 were the witnesses, who were reported by the parent of the victim girl about occurrence and they were present in the meeting held in the Anganwari Centre of the village about the occurrence. D.W. 3 is a witness, who was also reported by P.W. 2 about the occurrence and she accompanied P.W. 2 when P.W. 2 visited the house of Satyaban Das (D.W.2). 2.4. Defence case so far ascertained from the trend of cross-examination of the prosecution witnesses as well as from the statement of the accused made in course of examination under Section 313 Cr.P.C. and from the statement of the defence witnesses is that of a denial of the prosecution case. It is further defence of the accused that there was boundary dispute between the family of the accused and the informant and for that reason, a false case was instituted against the accused. 2.5. Considering the evidence on record, learned Additional Sessions Judge acquitted the accused from the charge framed under Section 376/531 of IPC, but found him guilty of committing offence punishable under Section 354 of IPC and accordingly, convicted him and sentenced as stated hereinbefore. 3. Hence this appeal. 4. Learned senior counsel. Mr. Bhowmik has submitted that the allegation brought against the accused is out and out false. Because of dispute over the boundary between the two families, a false case has been instituted against the accused. The story brought on record by the prosecution, submits learned senior counsel, Mr. Bhowmik apparently appears to be absurd and impossible. The alleged victim girl was aged about 3 years at the time of alleged occurrence. She was just an infant and there was no question of any sex character developed in her at all to feel that her modesty was outraged. Bhowmik apparently appears to be absurd and impossible. The alleged victim girl was aged about 3 years at the time of alleged occurrence. She was just an infant and there was no question of any sex character developed in her at all to feel that her modesty was outraged. There is also no evidence to show the culpable mindset of the accused even if the story is believed that the victim girl was inside the hut of the accused. It is further argued by learned senior counsel, Mr. Bhowmik that the FIR was lodged after 10 days. There is reasonable explanation of two days till the meeting was held in the Anganwari Center. For the rest 8 days, there is no explanation at all and on that ground alone, the prosecution case is liable to be disbelieved and the Trial Court was bound to give the benefit of doubt in favour of the accused. D.Ws. examined by the accused categorically stated that hearing both side in the meeting, the Panchayat arrived at a conclusion that the story narrated by the parents of the victim girl was not true and that evidence has been ignored by the Trial Judge. which was not proper. D.W. 3 stated that the victim girl on her examination stated nothing and so, the prosecution case is not at all believable. Under the circumstances, learned senior counsel. Mr. Bhowmik prayed for an order of acquittal. 5. Countering the submission of learned senior counsel, Mr. Bhowmik, learned Additional P.P., Mr. Debnath has submitted that delay has been adequately explained by the parents of the victim girl. This is a case of sexual molestation of a minor girl and in such cases, delay in lodging FIR is not at all material since the nature of the offence compels the parents to be slow in approaching the police at the very first instance. The parents of the prosecutrix are illiterate, poor villagers and when they did not get justice from the village Panchayat, they approached the police for justice and that is enough explanation regarding the delay, which cannot be disbelieved. The parents of the prosecutrix are illiterate, poor villagers and when they did not get justice from the village Panchayat, they approached the police for justice and that is enough explanation regarding the delay, which cannot be disbelieved. Further argument advanced by learned Additional P.P. is that P.W. 5 when saw her younger sister taken inside the room and her ’jangia’ was stripped off and the accused made attempt to push his penis in the private part of her younger sister, she rushed to her parents and reported the incident and immediately, P.W. 2, the mother of the victim rushed to the house and therefore, the accused could not succeed in his attempt, but the culpable mindset of the accused is established from the fact and therefore, the Trial Court rightly arrived at a conclusion that the accused committed offence of outrage of modesty. The age of the victim is not at all a matter in a case of outrage of modesty and since there is evidence on record that the victim girl was taken inside the room and the door was closed and she was let out when P.W. 2 raised hue and cry and vigorously called the accused, that is enough to arrive at a conclusion that modesty of the minor girl was outraged. According to Mr. Debnath, learned Additional P.P., the defence witnesses stated nothing new rather they supported the case of the prosecution that they were reported about the occurrence. Under such circumstances, defence evidence is not at all helping the accused-appellant rather it has strengthened the prosecution case. Learned Additional P.P.. therefore, prayed for maintaining the order of conviction and sentence. 6. According to the prosecution, P.W. 5 is an eye witness of the occurrence. She is a child witness aged about 10 years. The Trial Court, it appears, tested her putting several questions and was satisfied about the maturity of the girl that she was able to give rational answer to the questions. A child witness is a competent witness. There is abundant caution as a rule of prudence that the evidence of a child witness must be evaluated more carefully with greater circumspection because a child is susceptible to be swayed away by what others tell him/her and thus a child witness is an easy prey to tutoring. It is more a rule of practical wisdom than a law. There is abundant caution as a rule of prudence that the evidence of a child witness must be evaluated more carefully with greater circumspection because a child is susceptible to be swayed away by what others tell him/her and thus a child witness is an easy prey to tutoring. It is more a rule of practical wisdom than a law. It is a settled law that the evidence of a child witness cannot be discarded only on the ground of her being of tender age. Her evidence should be scrutinized with care and caution. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. The Courts, may, therefore, look for some other evidence to appreciate the evidence of child witness. In her deposition, P.W. 5 stated that about 3 and half months ago (from the date of recording her evidence), one day at about 11 a.m., she was playing with her younger sister (victim girl) under the Guava tree in the house of Ramu dada (accused). This fact stated by the witness has not been challenged in her cross-examination or otherwise and therefore, it is established that she along with the victim girl were playing in the house of the accused at the relevant time. She further stated that the accused called the victim girl showing an’ Amra’ fruit inside the room and accordingly, the victim girl went there and she (witness) went to the back side of the room and through the back side door found her sister was without her pant and Ramu dada (accused) touched his penis on her (victim girl) lower private parts. Seeing this, she rushed to her house and informed the incident to her mother and her mother came running in the house of the accused. In cross-examination, she stated that the back side door is attached to the kitchen and that she stated to the police officer that she did not find her sister (victim girl) and therefore, she called her mother. She also stated that she told the police officer that she saw incident from the opening of the back side door. But her attention was drawn to her earlier statement and in her earlier statement, the words "back side" was not there. She also stated that she told the police officer that she saw incident from the opening of the back side door. But her attention was drawn to her earlier statement and in her earlier statement, the words "back side" was not there. She also stated that Ramu dada was doing the incident on the cot that comes first if entry in the room is taken from the front door. The other cot was near by the back side door and there was an ’Alna’ (furniture for keeping cloths) between the two cots. A careful scrutiny of the evidence of the child witness appears that she found her sister (victim girl) inside the hut of the accused and also found something the accused was doing with the victim girl and that prompted her to rush to her parents and inform the fact. 7. P.W. 2 stated that hearing about the incident from P.W. 5, she rushed to the house of the accused and vigorously called the accused from the courtyard and the accused told her that the victim girl was not there in his room. She raised hue and cry calling the neighbourers and also threatened the accused to break the door and at that time, the accused let out the victim girl through the front door and she found the ’jangia’ of the victim girl was not in place and the accused was also wearing a towel which was also not in order. This much of the fact has not been shaken in cross-examination which indicates that P.W. 5 when reported about her younger sister being taken in the hut of the accused, immediately P.W. 2 rushed there; called the accused and the accused though first denied, but immediately thereafter let off the victim girl through the front door and her garment as well as the garment of the accused were not in order. P.W. 2 further raised hue and cry and called the neighbourers and neighbouring people rushed to the house. P.W. 1 also in the mean time, arrived there and got agitated and thereafter, they went out to inform the neighbourers and village elders to which, P.W. 8 Ashit Sarkar advised them to have a meeting and accordingly, D.Ws. 1 and 2 were also informed and meeting was convened in the Anganwari Centre on 17.07.2008. P.W. 1 also in the mean time, arrived there and got agitated and thereafter, they went out to inform the neighbourers and village elders to which, P.W. 8 Ashit Sarkar advised them to have a meeting and accordingly, D.Ws. 1 and 2 were also informed and meeting was convened in the Anganwari Centre on 17.07.2008. The evidence of PWs 2 and 5 is found to be very cogent and consistent and the material fact that the victim girl was taken inside the room of the accused and P.W. 5 peeping through the door of the hut found something the accused doing with her younger sister and rushed to her parents and P.W. 2 accordingly, rushed to the house of the accused raised hue and cry and the accused let off the victim girl from his hut while the ’jangia’ of the victim girl and the towel of the accused were not in order has been clearly established. 8. PWs 6, 7, 8 and 9 were all reported by the parents of the victim girl immediately after the occurrence. They all substantially corroborated the prosecution story. P.W. 6 stated that hearing the alarm raised by P.W. 2 Madhavi Sarkar, she came out of her house being a neighbour and she found P.W. 2 abusing the accused saying as to why the accused did such an act with the victim girl and the victim girl was in the lap of P.W.2. P.W. 2 told her (witness) that the accused took the victim girl in his room showing’ Amra’ fruit and thereafter, removing her pant touched his penis in the private part of the victim girl. This part of the evidence of the P.W. 6 has not been shaken. In cross-examination, she only stated that her husband is the nephew of P.W. 1, which means that there is relation between P.W. 6 and the parents of the victim girl. Such relationship cannot be a ground to disbelieve the evidence of witness if it is otherwise found to be cogent and not shaken in any other manner. There is nothing to show that the witness had animosity with the accused to implicate him falsely Relationship by itself cannot be a ground to throw doubt on the testimony of the witness (sic. unless it) is not believable because of other extraneous facts and circumstances. P.W. 7 was declared hostile by the prosecution. There is nothing to show that the witness had animosity with the accused to implicate him falsely Relationship by itself cannot be a ground to throw doubt on the testimony of the witness (sic. unless it) is not believable because of other extraneous facts and circumstances. P.W. 7 was declared hostile by the prosecution. P.W. 7 in her examination-in-chief stated that she was also called by P.W. 2 and reported about the incident. She along with others asked the victim girl as to what happened, but she was reluctant to say anything and was crying. Subsequently, Swapna asked the victim girl about the incident and she narrated it, but the witness did not hear as to what the victim girl stated to Swapna. She was declared hostile by the prosecution and the cross-examination by the prosecutor, her pervious statement recorded by I.O. was put to her that she stated to I.0. that in her presence victim girl narrated the incident on 17.07.2008. She denied that part of the statement which has been proved as Exbt. 3. In her cross-examination on behalf of the accused, she stated that she told the police that on 15.07.2008 in the evening Madhavi Sarkar (P.W. 2) took the victim girl to her house when the victim girl told her that accused Ramu had removed her pant. P.W. 8 stated that he was also reported about the incident on 15.07.2008 and hearing about the incident, he went to the house of the informant and he was informed that the accused took the victim girl in his house bolted the door and committed rape on the victim girl. He asked the accused about the allegation, but the accused could not give him proper reply. P.W. 9 also stated that she was reported about the incident by P.W. 2 on the day of incident itself. 9. D.Ws. 1 and 2 stated that they were reported about the incident and a village meeting was called in the Anganwari Centre where P.Ws. 1 and 2 with their minor daughter (victim girl) were present. They were reported about the incident that the accused committed rape on the victim girl. Both the witnesses stated that after hearing both side, it appeared to them that the allegation of rape was not true. 1 and 2 with their minor daughter (victim girl) were present. They were reported about the incident that the accused committed rape on the victim girl. Both the witnesses stated that after hearing both side, it appeared to them that the allegation of rape was not true. In their cross-examination, they stated that at the end of the meeting, the accused sought pardon from Angaraj (P.W. 1) and Madhavi (P.W. 2) touching their feet. They denied the suggestion that since they requested the informant not to institute any police case and since denying their request the police case was instituted, they had gone hostile and made false statement. D.W. 3 stated about the occurrence that she was reported by P.W. 2 about the incident and she accompanied P.W. 2 to the house of Satyaban Das (D.W. 2) and that P.W. 2 narrated the occurrence to Satyaban. Thereafter, as per advice of Satyaban, she along with wife of Satyaban and Anju Rani Sarkar (P.W. 7) went to enquire about the incident to victim girl, but the victim girl told her that accused Ramu did nothing. In cross-examination, she stated that the accused Ramu distantly related to her and Satyaban Das (D.W. 2) is her full blood brother. 10. A careful reading of the defence evidence makes it abundantly clear that they were all reported about the incident by the parents of the victim girl immediately after the occurrence and they categorically stated about it. D.Ws. 1 and 2 simply stated that in the meeting, they examined both side and to their perception, the allegation was not true or that it was false. It was their opinion, which is not admissible in evidence. They are witnesses of fact and not an expert witness to give an opinion. While they have stated about the occurrence that the parents of the victim girl reported about the occurrence that much is important to be taken to consideration as relevant and the rest, which is their opinion after hearing the parties, is not relevant. D.W. 3 rather corroborated the prosecution case. The victim girl was aged about three and half years at that relevant point of time. We cannot expect that such an infant girl would be able to narrate a fact spontaneously what actually happened with her even if, she stated something that would supposed to be examined with abundant care and caution. D.W. 3 rather corroborated the prosecution case. The victim girl was aged about three and half years at that relevant point of time. We cannot expect that such an infant girl would be able to narrate a fact spontaneously what actually happened with her even if, she stated something that would supposed to be examined with abundant care and caution. So, her statement whether positive or negative is of no consequence and her no statement also has nothing to tell upon the authenticity or otherwise of the prosecution case. 11. Learned senior counsel, Mr. Bhowmik, as already stated hereinbefore, strongly argued that delay in lodging the FIR is fatal in this case and that cannot be ignored. The object of insisting upon prompt lodging of the FIR is to obtain early information regarding the circumstances in which the crime was committed. Delay in lodging FIR quite often results the embellishment, exaggeration and afterthought. Because of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in with the introduction of coloured version, exaggerated version or concocted story. An FIR is never a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in the Court as a witness. A value of FIR always depends on the facts and circumstances of a given case. The point was raised before the Trial Court and as I find, the Trial Court has given his observation about the delay in lodging of FIR in the last part of Paragraph 10 of its judgment, which seems to be quite reasonable. The observation of the Trial Court reads as follows:-- 10. On the argument of the learned defence counsel on the delay in lodging the FIR, it is to be said that though lodging of the same was delayed by 10 days, the parents of the victim did not keep the incident secret. Rather almost the entire village came to know about this immediately after the commission of the same. It is there in the evidence that there was an effort of settlement, but ultimately this was not done to the satisfaction of the victim’s parents. P.W. 1 has deposed that after the abortive meeting, he went to some other persons to get justice, but did not get it. So, the complaint was lodged thereafter. It is there in the evidence that there was an effort of settlement, but ultimately this was not done to the satisfaction of the victim’s parents. P.W. 1 has deposed that after the abortive meeting, he went to some other persons to get justice, but did not get it. So, the complaint was lodged thereafter. So, in my opinion delay is reasonably explained and it is not fatal to the prosecution case. As regards the argument of false implication for previous enmity it is only to be said that it is not believable that a parent would malign his daughter with such an incident just to settle score with the neighbour with whom they have boundary dispute. Disclosure of the incident to the villagers immediately after the incident also makes the argument not believable. It is evident that immediately after the occurrence, the parents of the victim girl reported the village elders and neighbourers. A village meeting was also held wherein the accused sought pardon touching the feet of P.Ws. 1 and 2. The parents were not happy with the decision of the meeting and so, they sought the legal justice. They stated that even after meeting also, they knocked the door of the village elders, but ultimately, when get frustrated P.W. 1 lodged the FIR. P.W. 10, the I.O. in cross-examination stated that during investigation, it was revealed that the informant waited for a village settlement and thereafter, filed the case. That observation of the 1.0. has not been challenged. So, it appears that there was a reasonable explanation for the delay in lodging the FIR. 12. The Supreme Court in the case of Ramdas & Ors. v. State of Maharashtra reported in (2007) 2 SCC 170 has observed that in the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation, there may be circumstances appearing on record which provide a reasonable explanation for the delay and if such an explanation is available before the Court, it may be accepted as a reasonable delay. In the case of Sahebrao & Anr. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation, there may be circumstances appearing on record which provide a reasonable explanation for the delay and if such an explanation is available before the Court, it may be accepted as a reasonable delay. In the case of Sahebrao & Anr. v. State of Maharashtra reported in AIR 2006 SC 2002 , the Supreme Court has held that it is the settled principle of law that delay in filing FIR by itself cannot be a ground to doubt prosecution case and discard it. The delay in lodging FIR could put the Court on its guard to search if plausible explanation has been offered and if offered whether it was satisfactory. 13. This is a case of sexual molestation of a minor girl. The parents of the victim girl are rustic villages and not conscious like urban people. We cannot expect that immediately after the occurrence, they would be rushing to the police to lodge an FIR and what is natural that they would be approaching the neighbourers is found to be natural for them, which cannot be doubted unless other circumstances clearly appear on record. 14. In the case of Karnel Singh v. State of M.R. reported in 1995 CRI. L.J. 4173, the Supreme Court has observed that delay in lodging complaints in such cases in India does not raise inference that complaint was false. Reluctance to go to police is because of society’s attitude towards such women victims. 15. The Supreme Court has also liberally considered the issue of delay in lodging the FIR in the case of State of Punjab v. Gurmit Singh & Anr. reported in (1996) 2 SCC 384 . 16. In the facts and circumstances of the present case, I find no force in the argument advanced by learned senior counsel, Mr. Bhowmik that the prosecution case is liable to be thrown overboard simply on the ground of delay in lodging the FIR. There is nothing on record to arrive at a conclusion that the parents of the victim girl with an ulterior motive manufactured the fact of alleged molestation of their minor daughter and lodged a false FIR. Bhowmik that the prosecution case is liable to be thrown overboard simply on the ground of delay in lodging the FIR. There is nothing on record to arrive at a conclusion that the parents of the victim girl with an ulterior motive manufactured the fact of alleged molestation of their minor daughter and lodged a false FIR. It is quite unbelievable that the parents would go to plant their minor daughter with the risk of her future to lodge a false complaint of sexual molestation, by the accused, simply because of the boundary dispute, even if it is accepted that there was a boundary dispute between the parties. Parents of the victim girl stated that there was a boundary dispute, but that it was settled four years before the incident. D.Ws. 1 and 2 stated about the boundary dispute in existence, but the fact that the minor daughters of P.Ws. 1 and 2 were playing in the courtyard of the accused has not been denied and disputed. Under such circumstances, while there is no evidence to show that the relationship between the family of the accused and the family of the victim girl were strained having no visiting term, I find nothing to attach any importance on this point of defence plea. Rather it is in the evidence on record that there were visiting terms might be there were dispute over the boundary. The Supreme Court in the case of Jito v. State of Himachal Pradesh reported in 1990 CRI. L.J. 1434 has held that parents of a tender age girl cannot, at all, be expected to set up such a case and thereby mar whole life of their child. 17. Regarding the argument that there was no question of outrage of modesty being the girl was aged only three/three and a half years is considered carefully. Section 354 of IPC 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. - 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. A careful reading of the provision makes it clear that the culpable mindset of the accused is most important, if the accused assaults or uses criminal force knowing it to be likely that he will thereby outrage modesty of the girl/woman, it is enough to arrive at a conclusion that the modesty of the girl/woman was outraged. In the case of Raju Pandurang Mahale v. State of Maharashtra & Anr. reported in : (2004) 4 SCC 371 , the Supreme Court in Para 12 of the judgment has observed:-- 12. What constitutes an outrage to female modesty is nowhere defined. 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 in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word ’modesty’ is not defined in IPC. The Shorter Oxford Dictionary (3rd Edn.) defines the word ’modesty’ in relation to woman as follows: Decorous in manner and conduct; not forward or lewd; Shame fast; Scrupulously chaste. 18. The question whether she is a mere child, she is an infant girl or a grown up woman is immaterial. The Supreme Court in the case of State of Punjab v. Major Singh reported in : AIR 1967 SC 63 has considered this aspect in a case of molestation of a seven and half months old child and the Court has held that the essence of a woman modesty is her sex. Whoever uses criminal force to her with intent to outrage her modesty commits an offence under this Section. Whoever uses criminal force to her with intent to outrage her modesty commits an offence under this Section. The culpable intention of the accused is the crux of the matter. The reaction of the woman is relevant, but its absence is not always decisive. Thus, where the accused walks into the room where a female child of seven and half months is sleeping, stripped himself naked below the waist and kneels over her and fingering her vagina ruptured the hymen causing injury, it was held that the accused committed the offence under the Section. 19. In the case of Rupan Deal Bajaj (Mrs.) & Anr. v. Kamvar Pal Singh Gill & Anr., reported in (1995) 6 SCC 194 , the Apex Court observed that the ultimate test of ascertaining whether modesty has been outraged is the action of the offender, such as could be perceived as one which is capable of shocking the sense of decency of a woman. 20. In the case of Tarakeswar Sahu v. State of Bihar reported in : (2006) 8 SCC 560 , the Supreme Court in Para 39, 40, 41, 42 and 43 has observed:-- 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 of 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 female owing to her sex. 41. "Modesty" is given as, "womanly propriety of behavior, scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions (Raju Pandurang Mahale v. State of Maharashtra (2004) 4 SCC 371 : 2004 SCC (Cri) 1259. 42. The ultimate test for ascertaining whether the modesty of a woman has been outraged, assaulted or 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. 42. The ultimate test for ascertaining whether the modesty of a woman has been outraged, assaulted or 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. A person slapping on the posterior of a woman in full public glare would amount to outraging her modesty for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady. Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194 . 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. Major Singh Lachhman Singh v. State, AIR 1963 Punj 443. 21. In the case at hand, the victim girl was playing in the courtyard of the accused. The accused showing her an’ Amra’ fruit took her inside his room and bolted the front door. He stripped off her garment and pushed his penis in the lower part of the body of the victim girl. When P.W. 2 raised hue and cry, the victim girl was let off by the accused from the room and her garment as well as the garment of accused were not in order. This much of the fact is enough to hold that modesty of the infant girl was outraged by the accused. No other inference can be drawn from the fact presented before the Court, which is proved. The Trial Court, therefore, was absolutely right in arriving at a conclusion that the accused committed the offence of outrage of modesty of the victim girl. 22. The argument of learned senior counsel, Mr. Bhowmik that no charge was framed against the accused under Section 354 of I.P.C. is of no consequence at all in view of the provision prescribed in Section 221 of Cr.P.C. The material allegation brought against the accused was put to him at the time of framing of charge, which is enough included the fact of the allegation of outrage of modesty and therefore, I find no force in the argument advanced by learned senior counsel, Mr. Bhowmik. 23. Bhowmik. 23. In view of the discussions made above, I find no merit in the appeal and the appeal therefore, stands dismissed. 24. The accused is directed to surrender and to serve out the sentence. Send back the L.C. records along with a copy of this judgment.