JUDGMENT Rajesh H. Shukla, J. 1. The present appeal is directed against the impugned judgment and order rendered in Sessions Case No. 81/2013 (old Sessions Case No. 29/2013) by the Addl. Sessions Judge, Modasa recording acquittal of the appellant-original accused No. 1 for the offence under sec. 306 and also recording acquittal of original accused No. 2 for the offence under sec. 354, 509. However, conviction is recorded against the appellant-original accused No. 1 for the offence under sec. 354 and 509 of IPC and has also imposed sentence as stated in detail in the impugned judgment and order. 2. The facts of the case briefly summarized are as follows: "2.1 The complainant victim was residing in the neighbourhood of the accused and whenever she was passing the accused is said to have harassed her by following her and holding her hand suggesting for illicit relationship which was declined by the complainant. The complainant victim is said to have suffered this for long since about 10 years. However, on 3.10.2012 when she had gone out for water and was returning, the appellant original accused No. 1 is said to have caught her hand which was seen by the husband who was also returning after fetching milk. Therefore, there was a quarrel between the complainant and her husband and the appellant who is residing in the neighbourhood is said to have quarreled abusing the deceased husband of the complainant that he is maintaining his wife, that is the complainant, and the deceased husband of the complainant committed suicide by setting himself on fire. He was removed in 108 ambulance to the hospital from Bayad to Modasa to Himatnagar where he succumbed to death. Therefore, a complaint was lodged being FIR No. 70/12 at Bayad Police Station for the offences under sections306, 354,,509 and 114 of IPC. 2.2 After the investigation was over, the charge-sheet came to be filed. However, as the offence are triable by the court of sessions, it was committed to the Court of Sessions. 2.3 In order to bring home the charges levelled against the appellant-accused, the prosecution examined the witnesses including the complainant and other witnesses. 2.4 The learned Addl. Sessions Judge, Modasa proceeded with the trial and recorded the evidence of the prosecution witnesses. After recording of the evidence of the prosecution witnesses was over, the statement of the accused under sec. 2.3 In order to bring home the charges levelled against the appellant-accused, the prosecution examined the witnesses including the complainant and other witnesses. 2.4 The learned Addl. Sessions Judge, Modasa proceeded with the trial and recorded the evidence of the prosecution witnesses. After recording of the evidence of the prosecution witnesses was over, the statement of the accused under sec. 313 of Cr.P.C. was recorded. 2.5 After hearing the learned APP as well as the learned advocate for the accused, the learned Addl. Sessions Judge, Modasa, recorded conviction of the appellant original accused No. 1 for the offence under sec. 354 and 509 of IPC as stated in detail in the impugned judgment and recorded acquittal for the offence under sec. 306. Similarly, acquittal was recorded against accused No. 2, wife of the appellant accused qua all the offences. 2.6 It is this judgment and order which has been assailed by the appellant in the present appeal on the grounds as stated in the memo of appeal." 3. Heard learned advocate Ms. Kruti Shah for the appellant-accused and learned APP Shri H.L. Jani for the respondent-State. 4. Learned advocate Ms. Shah referred to the charge and also the testimony of the complainant victim, PW-1 at exh. 11 and her complaint at exh. 12. She submitted that there is inconsistency in her version and the complaint and pointedly referred to this aspect that she has not stated in her testimony about this gesture for illicit relationship as stated in the complaint at exh. 12. Learned advocate Ms. Shah also referred to the testimony of the mother-in-law, PW-2 at exh. 13 and also the testimony of father of the complainant, PW-4 at exh. 16. She submitted that other witnesses are also examined like mother of the victim, PW-6 at exh. 18 and sister of the victim, PW-5 at exh.17. She submitted that they are all interested witnesses as they are related to the victim. Learned advocate Ms. Shah also submitted that the testimony of other witnesses could be said to be a hearsay for which she referred to the testimony of the mother-in-law, PW-2 at exh. 13 and submitted that she has stated that she was conveyed but she has not exactly seen and she was not an eye witness to such incident. Learned advocate Ms. Shah also submitted that the testimony of other witnesses could be said to be a hearsay for which she referred to the testimony of the mother-in-law, PW-2 at exh. 13 and submitted that she has stated that she was conveyed but she has not exactly seen and she was not an eye witness to such incident. Learned advocate Ms. Shah submitted that the testimony of the complainant, PW-1 does not make out the offence under sec. 354. 5. For that purpose, learned advocate r erred to sec. 354 of IPC and submitted that it requires assault and there is no mention about any assault. She submitted that there is not even criminal force with intent to outrage her modesty. Again, she referred to the testimony of the complainant and submitted that there is nothing stated in her testimony or the complaint and therefore as the ingredients of sec.354 are not fulfilled, the impugned judgment and order recording conviction may be quashed and set aside. She also submitted that the background of facts are also required to be considered. She submitted that there was a delay in filing the FIR for which there is no explanation. She also submitted that had there been continuous harassment earlier the complaint could have been filed. She pointedly referred to the fact that though it is stated by the complainant, PW-1 that earlier also she has filed the complaint, the I.O., PW-15 at exh. 36 has clearly stated that the deceased husband has never given any complaint about such outraging of modesty. She pointedly referred to the question put to the witness and the answer and tried to submit that though it is stated that earlier a complaint was given but it was with regard to the quarrel which may not be necessarily for such an issue. Learned advocate Ms. Shah also submitted that the statement of the deceased husband is recorded by the police which is produced at exh. 41 and even if it is taken as a dying declaration before the police the deceased has not stated anything about such an incident and what he has referred to is the quarrel. 6. Learned advocate Ms. Shah, therefore, submitted that there is no evidence that there was harassment by the appellant to the complainant and except her bare words there is no corroboration by independent witnesses or eye witnesses. 6. Learned advocate Ms. Shah, therefore, submitted that there is no evidence that there was harassment by the appellant to the complainant and except her bare words there is no corroboration by independent witnesses or eye witnesses. In fact, the complaint has been lodged belatedly to extort money as it was suggested at the instance of the brother-in-law. She therefore submitted that the present appeal may be allowed and the conviction may be quashed and set aside. 7. Alternatively, learned advocate Ms. Shah submitted that the sentence may be modified and reduced to S.I. for one year for the offence under sec. 354 of IPC as the sentence is also awarded for offence under sec. 509 for one year. She therefore submitted that the alternate prayer may also be considered. 8. Learned APP Shri Jani however referred to the papers including the testimony of the complainant victim, PW-1 at exh. 11 and her complaint at exh. 12. He submitted that she has narrated about the harassment which was persistent throughout. He submitted that in the complaint, exh. 12, she has clearly stated the version about the persistent harassment which has been corroborated by other witnesses including the mother-in-law, PW-2 in her testimony at exh. 13. Learned APP Shri Jani submitted that the testimony of the father of the victim, PW-4 at exh. 16 clearly suggests that he was also aware and he had also intervened and compromised on such issue and therefore it may not have been registered as an FIR. He submitted that the reliance placed by the learned advocate referring to the testimony of the I.O., PW-15, exh. 37 is required to be considered as a whole. He pointedly referred to the question put to the witnesses and the reply and submitted that in reply to the specific question that FIR has not been registered for offence under sec. 354 and 509 a witness has replied that the FIR has not been registered but an application/complaint was given by the deceased husband of the victim. He therefore submitted that it cannot be interpreted or understood that it was for some other quarrel and not related to this issue of harassment to the complainant. He also referred to exh. 41 which is the dying declaration before the police given by the deceased husband. He therefore submitted that it cannot be interpreted or understood that it was for some other quarrel and not related to this issue of harassment to the complainant. He also referred to exh. 41 which is the dying declaration before the police given by the deceased husband. He submitted that he has clearly stated that earlier the complaint was filed and as no fruitful result came and when he saw the appellant accused had given a push to the complainant wife and when he tried to scold him it resulted in a quarrel and therefore the accused abused him and he committed suicide. He therefore submitted that in such issues the person may be sensitive and when he was abused at that very time the deceased husband has committed suicide which cannot be overlooked. However, he submitted that as there is no appeal filed by the State, it may be a different aspect. 9. However, learned APP Shri Jani submitted that the conviction recorded by the court below for the offence under sec. 354 and 509 of IPC is just and proper. He also submitted that the submission made by the learned advocate regarding the delay in filing the FIR is in fact explained. He referred to the complaint at exh. 12 and submitted that as the victim was engaged in social rituals or after death ceremony of the husband it caused the delay which can be said to be a sufficient explanation. Therefore, learned APP Shri Jani submitted that there is no cross-examination on the aspect of intervention of the father of the victim, P.W-4 where he has stated that he had tried to intervene and compromised on the issue. He therefore submitted that it cannot be said that merely because they are related the testimony or the evidence of such witnesses may be overlooked. He submitted that in fact the close family members like the parents or the father of the victim in such cases would be concerned and therefore it cannot be thrown overboard on the ground that it is a hearsay evidence. He therefore submitted that considering the manner in which the offence is committed and the totality of the facts, even the alternate submission regarding the modification or reduction of the sentence may not be accepted. 10. In rejoinder, learned advocate Ms. He therefore submitted that considering the manner in which the offence is committed and the totality of the facts, even the alternate submission regarding the modification or reduction of the sentence may not be accepted. 10. In rejoinder, learned advocate Ms. Shah again referred to the papers and submitted that nothing has come on record that there were earlier any such complaint made to the police. In fact, the I.O., PW-15 in his testimony at exh. 37 has stated that there is no such complaint regarding outraging the modesty. She therefore again submitted that the present appeal may be allowed and the judgment recording conviction may be quashed and set aside. 11. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 12. As it transpires from the background of facts narrated hereinabove, there was a persistent harassment caused to the victim which it appears that she tolerated. Further, the complaints were also filed and thereafter it was perhaps not pursued and compromise was arrived at with the intervention of the father of the complainant as stated by him in his testimony at exh. 16. 13. The first aspect which learned advocate Ms. Shah has emphasized that necessary ingredients for the offence under sec. 354 are not attracted requires a closer scrutiny. In fact, a discussion has been made on this aspect in para 19 of the impugned judgment and order. The provisions of sec. 354 refer to 'assault or criminal force to a woman with intention to outrage her modesty'. It is required to be noted that though the submissions have been made by learned advocate Ms. Shah that there was no assault and therefore the provisions of sec. 354 are not attracted, is misconceived. The word 'assault' is also used with criminal force with the word 'or'. The criminal force would assume different connotations in different contexts. Holding the hand of a woman in public place with the suggestion for illicit relationship would be covered in criminal force. Further, it is well-settled that for attracting the provisions of sec. 354 even the gesture is sufficient for the purpose of outraging the modesty. What constitutes outraging the modesty of a woman is not defined. However, the essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. Further, it is well-settled that for attracting the provisions of sec. 354 even the gesture is sufficient for the purpose of outraging the modesty. What constitutes outraging the modesty of a woman is not defined. However, the essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The modesty in this section has been used by the legislature suggesting an attribute associated with the female human being as a class. It is a virtue which attaches to a female owing to her sex. 14. A useful reference can be made to the observations made by the Hon'ble Apex Court in a judgment reported in AIR 2004 SC 1677 in the case of Raju Pandurang Mahale v. State of Maharashtra and anr. Further, a reference can also be made to the judgment of this Court reported in 2014 (3) GLH 217 in the case of State of Gujarat v. Suda Kara Rabari and ors. 15. The submissions made by learned advocate Ms. Shah about the delay in filing the FIR are also misconceived as the delay can be said to have been explained that due to the death of the husband the complainant was required to attend social rituals which may have consumed time and therefore there is sufficient explanation and such contentions are thoroughly misconceived. 16. One more facet of the submissions which has been emphasised by learned advocate Ms. Shah that there are no independent witnesses and all the witnesses are related is also misconceived. It is well-settled by a catena of judicial pronouncements that in such offences, normally, the witnesses would be the family members where the victim could have shared on the aspect of harassment and therefore merely because they are relatives the evidence is not required to be rejected or overlooked. In any view of the matter, it is also well-settled that on such issues like rape or outraging the modesty of a women conviction could be based on the sole testimony of the victim if it inspires confidence and does not suffer from any infirmity. The submissions made by learned advocate Ms. Shah about the false complaint for the money has no legs to stand. The submissions made by learned advocate Ms. Shah about the false complaint for the money has no legs to stand. In fact, any suggestion about illicit relationship or affair with the accused has not been even made to the witnesses at the trial and there is no question of considering any such submissions when not even a suggestion is put to the witnesses. Moreover, it is required to be stated that had there been any such issue, the mother-in-law would not have supported the complainant on such an issue particularly when her own son has committed suicide. Therefore, any such submissions are difficult to digest and are thoroughly misconceived. 17. Lastly, the alternate submission made by learned advocate Ms. Shah about modification and reduction of sentence for the offence under sec. 354 to 1 year instead of 2 years also cannot be accepted in light of the background of facts, the nature of offence and also considering the broad guidelines laid down by the Hon'ble Apex Court referring to the doctrine of proportionality in sentence. The Hon'ble Apex Court has made the observations in a judgment reported in (1991) 3 SCC 471 in the case of Sevaka Perumal etc. v. State of Tamil Nadu, "Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc." This has also been reiterated and quoted in a subsequent judgment of the Hon'ble Apex Court reported in AIR 2008 SC 2314 in the case of Siriya alias Shri Lal v. State of M.P. It has been observed, "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration." Therefore, considering this aspect regarding the doctrine of proportionality in sentence, it does not justify any interference with the impugned judgment and order even on the aspect of sentence. 18. The present appeal, therefore, deserves to be dismissed and accordingly stands dismissed. After the judgment was dictated, learned advocate Ms. Shah has requested for six weeks' time to surrender. The time to surrender as prayed for is granted up to 11.4.2016.