JUDGMENT : Rajesh H. Shukla, J. 1. The present appeal under sec. 374 of the Code of Criminal Procedure is directed against the impugned judgment and order rendered in Sessions Case No. 28 of 2001 by the Addl. Sessions Judge, 4th Fast Track Court, Porbandar, dated 27.7.2004 recording the conviction of the appellant original accused for the offence under sec. 354 of IPC and sentencing him to R.I. for 2 years and fine of Rs. 1,000/- and in default S.I. for 1 month. He was also convicted for the offence under sec. 452 of IPC and sentenced him to R.I. for 3 years and fine of Rs. 10,000/-, i/d S.I. for 6 months. Out of the amount of fine, the victim is also ordered to be compensated. 2. The facts of the case, briefly summarized, are as follows: "2.1 As it transpires from the record, the daughter of the complainant, aged about 9 years, was at home on 15.1.2001 when the parents had gone out for labour work. At that time, the accused who was residing nearby is said to have entered the house of the complainant when the victim was alone and made an attempt to commit the offence of rape and tried to outrage the modesty of the girl. He is also said to have threatened the victim. Therefore, when the victim raised shouts the grandfather came and the accused ran away and she conveyed to the mother about the incident culminating into the FIR being C.R. No. 2-0/2001 registered with Madhavpur Police Station, Dist. Porbandar, for the alleged offences under sections 376, 511, 506(2), 354 and 452 of IPC. 2.2. After the investigation was over, the charge-sheet was filed before the Court of Magistrate and it was committed to the Court of Sessions as the offences are triable by 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, victim, mother and other witnesses. 2.4 The accused has also testified and led the evidence in the defence. 2.5 After recording of the evidence of the prosecution witnesses was over, the statement of the accused under sec. 313 of CrPC was recorded and the evidence of the defence was also recorded. 2.6 After hearing the learned APP as well as the learned advocate for the accused, the learned Addl. 2.5 After recording of the evidence of the prosecution witnesses was over, the statement of the accused under sec. 313 of CrPC was recorded and the evidence of the defence was also recorded. 2.6 After hearing the learned APP as well as the learned advocate for the accused, the learned Addl. Sessions Judge, as stated above, recorded acquittal for the offence under sec. 376 of IPC and recorded conviction for the offences under sec. 354 and 452 of IPC. 2.7 It is this judgment and order which has been assailed in the present appeal on the grounds stated in the memo of appeal." 3. Heard learned advocate Ms. Sadahna Sagar for the appellant-original accused and learned APP Shri HL Jani for the State. 4. Learned advocate Ms. Sagar referred to the charge-sheet at exh. 4 and the testimony of the doctor, PW-1, who had examined the victim, at exh. 14. She has also referred to the injury certificate, exh. 15 and submitted that as stated by the doctor, there are no marks of injury and it has been clearly stated that there was no intercourse which would attract the offence under sec. 376. She therefore submitted that the court below has recorded the conviction for offence under sec.354 of IPC which may also be considered in background of the motive. For that purpose, she referred to the testimony of the complainant father, PW-2 at exh. 17 and the complaint at exh. 18. Learned advocate Ms. Sagar also referred to the testimony of the minor victim at exh. 19. She submitted that even the minor victim is not said to have stated about the act which can be said to be covered for offence under sec. 376 and therefore he has been acquitted for the offence under sec.376. However, she submitted that the conviction for the offence under sec. 354 for outraging the modesty could be considered in background of the facts suggesting the probability of false implication. For that purpose, she referred to the testimony of PW-7 who is the elder brother of the complainant father at exh. 25. Learned advocate Ms. Sagar submitted that as it is revealed this witness (brother) was doing business with the accused and there were differences and it has also been stated that an amount of Rs. 100 was borrowed. For that purpose, she referred to the testimony of PW-7 who is the elder brother of the complainant father at exh. 25. Learned advocate Ms. Sagar submitted that as it is revealed this witness (brother) was doing business with the accused and there were differences and it has also been stated that an amount of Rs. 100 was borrowed. She therefore submitted that as it transpires initially he was asked to go away from the village and thereafter he is sought to be implicated falsely. She also referred to the testimony of the accused who has testified as defence witness at exh. 36. Learned advocate Ms. Sagar also referred to the testimony of defence witness No. 2 at exh. 37. 5. She therefore submitted that the court may consider that there is a delay of 4 days in filing the FIR and the complaint has not been filed immediately which is not explained. She further submitted that while giving the history to the doctor, the name of the accused is not stated though it was known to the complainant father as well as the mother of the victim. Learned advocate Ms. Sagar submitted that even the conviction for the offence under sec. 354 is erroneous ad it does not fulfill necessary ingredients. For that purpose, she referred to the provisions of sec. 354 of IPC and emphasised, "Whoever assaults or uses criminal forces to any woman...... " She submitted that as there is no use of any criminal force or assault as could be seen from the papers including the medical evidence the section would not be attracted. 6. Lastly, learned advocate Ms. Sagar submitted that the appellant-accused had served the sentence for about 1 year and 10 months and therefore a lenient view maybe taken and the sentence may be modified or reduced while maintaining the conviction. 7. Learned APP Shri Jani, however, resisted the submissions. He submitted that in fact the court below has misdirected while considering the offence under sec. 376. For that purpose, he referred to sec. 375 and submitted that it is not necessary that there has to be penetration of penis. He referred to sec. 375 which defines rape and referring clause (b) of sec. He submitted that in fact the court below has misdirected while considering the offence under sec. 376. For that purpose, he referred to sec. 375 and submitted that it is not necessary that there has to be penetration of penis. He referred to sec. 375 which defines rape and referring clause (b) of sec. 375 he submitted that it refers to any object which would include even the finger in the private part or vagina and therefore it would be an offence under sec. 375 which has not been considered. Learned APP Shri Jani therefore submitted that in fact the court may take suo motu enhancement proceedings. 8. Learned APP Shri Jani referring to the testimony of witnesses including the testimony of the accused at exh. 36 submitted that his presence is established. He submitted that merely because there is no injury found it cannot be said that no offence is committed. He submitted that in any case for outraging the modesty it is not necessary that there has to be an injury or there has to be any force. He also reflected on the conduct of the accused referring to the testimony of the accused himself at exh. 36 who testified in defence. Learned APP Shri Jani also submitted that the submission about the motive or false implication is misconceived in view of the testimony of the accused himself at exh. 36 wherein he has clearly stated that there are no complaints, no case filed either by him or against him and the accused was doing business with the brother of the complainant. Therefore, the motive for false implication cannot be inferred merely because it is suggested as a ground as an after-thought without any justification or material and evidence on record. 9. Learned APP Shri Jani submitted that even if the proceedings for enhancement has not been initiated by the State and the court may not be inclined, leniency may not be shown and the alternate submission with regard to modification of sentence while maintaining the conviction may not be accepted. 10. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 11. As could be seen from the material and evidence on record referred to by both the sides at length, it is evident from the testimony of witnesses including the testimony of the victim, PW-4 at exh. 10. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration. 11. As could be seen from the material and evidence on record referred to by both the sides at length, it is evident from the testimony of witnesses including the testimony of the victim, PW-4 at exh. 20 that the accused had entered the house when there was no one around and also tried to outrage the modesty of the girl. In fact, the act which has been stated by the victim in her testimony at exh. 19 would attract the offence under sec. 376 of IPC. As rightly submitted by learned APP Shri Jani referring to sec. 375 the testimony of the minor victim is natural and she has stated in a natural way which is corroborated by the medical evidence. It is also required to be stated that in fact the medical evidence which has been much emphasised by learned advocate Ms. Sagar referring to the testimony of the doctor, PW-1 at exh. 14 and the injury certificate at exh. 15 stating that there is no injury by itself would not be a ground for absolving him from all the charges. In fact, it is well settled that absence of injury is not sufficient to disregard the testimony of the victim regarding the offence under sec. 376. Therefore, if the testimony of the victim is inspiring confidence, absence of injury by itself would not be a ground to absolve the accused from the offence under sec. 376. Again, the victim is a minor and as referred to in sec. 375 any such act would be covered within the definition of rape as provided in sec. 375. Therefore, the medical evidence, on the contrary, would suggest that the doctor has given the opinion objectively and in a truthful manner that there is no injury. However, the manner in which the act has been committed as stated by the victim in her testimony at exh. 19 would be sufficient to cover the offence under sec. 376 as defined in sec. 375. 12. However, as there are no proceedings filed for enhancement and particularly considering the submissions made by learned advocate Ms. Sagar, the court may not take suo motu proceedings considering the time which has lapsed, but it can hardly be a ground for any leniency. 13. 376 as defined in sec. 375. 12. However, as there are no proceedings filed for enhancement and particularly considering the submissions made by learned advocate Ms. Sagar, the court may not take suo motu proceedings considering the time which has lapsed, but it can hardly be a ground for any leniency. 13. The submissions made by learned advocate Ms. Sagar referring to sec. 354 that the ingredients for the offence under sec. 354 are not fulfilled that there is no assault or use of force can hardly be believed. It is required to be stated that the word modesty has not been defined and the courts have considered these aspects as what would constitute outraging the modesty. 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. has made the observations, "The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. 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." It has been observed that it should be perceived as one which is capable of shocking the sense of decency of a woman. 14. Therefore, the conviction which has been recorded for the offence under sec. 354 cannot be said to be erroneous which would call for any interference. Similarly, the conviction for the offence under sec. 452 of IPC also cannot be said to be erroneous. 15. Therefore, the alternate submission made by learned advocate Ms. Sagar with regard to reduction or modification of sentence or taking a lenient view also cannot be accepted in light of the background of facts in which the offence is committed. Rather it would send a wrong message in the society if any such leniency is shown. 15. Therefore, the alternate submission made by learned advocate Ms. Sagar with regard to reduction or modification of sentence or taking a lenient view also cannot be accepted in light of the background of facts in which the offence is committed. Rather it would send a wrong message in the society if any such leniency is shown. The Hon'ble Apex Court in judicial pronouncements has advocated, referring to the doctrine of proportionality, about the imposition of suitable punishment which has a reference to the gravity of the crime as well as other relevant factors like impact on the society and the cry of the society for justice as well as the reflection of the criminal justice system. 16. The Hon'ble Apex Court has evolved the doctrine of proportionality in sentencing while referring to deterrence, retributive theory etc. on the aspect of penology. Therefore, the doctrine of proportionality obliges the courts to impose adequate sentence referring to the nature of the offence and the manner in which it is committed. Sympathy or soft pedaling will be counterproductive and it would be sending a wrong signal in the society for the criminal justice system. The right of the accused and the right of the victim as well as the society collectively has to be balanced if the rule of law is to survive. The Hon'ble Apex Court in a judgment in the case of Siriya alias Shri Lal v. State of M.P., reported in AIR 2008 SC 2314 has 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. 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. 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." 8. 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 position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu [ 1991(3) SCC 471 ]" 17. A useful reference can also be made to the observations made by the Hon'ble Apex Court in a judgment reported in (2015) 8 SCC 688 in the case of Parhlad and anr. v. State of Haryana, wherein it has been observed, "It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame........ The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitation. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame........ The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitation. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Articles 14 and right to life under Article 21 of the Constitution, for they are the "fon juris" of our Constitution." 18. Thus, in ultimate analysis though the court may have the power it has to be exercised with caution and any such leniency with regard to even the sentence would not be justified. 19. Therefore, the present appeal cannot be entertained and deserves to be dismissed and accordingly stands dismissed. Bail bonds shall stand cancelled. 20. The appellant-accused is on bail. He shall surrender within six weeks. Learned advocate Ms. Sagar may intimate the appellant. However, as she has stated that she is not in contact with the appellant-accused, bailable warrant is also ordered to be issued against the appellant-accused.