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2025 DIGILAW 43 (TS)

Pole Kurmaiah v. State Of AP Rep By Its Pp Hyd.

2025-02-13

E.V.VENUGOPAL

body2025
ORDER : E.V. Venugopal, J. The present Criminal Revision Case is filed against the Judgment dated 16.02.2010 in Criminal Appeal No.151 of 2008 on the file of the learned IV Additional District and Sessions Judge (FTC), Mahabubnagar (for short, "the appellate Court"), whereby the Judgment dated 25.09.2008 passed in S.C.No.613 of 2007 by the learned Assistant Sessions Judge, Nagarkurnool (for short, “the trial Court"), was confirmed. 2. Heard learned counsel for the revision petitioner/accused and Mr.E.Ganesh, learned Assistant Public Prosecutor appearing for respondent-State. Perused the record. 3. Facts which are necessary to dispose of this revision, in nutshell, are as follows: On 30.10.2006 at about 8.00 A.M., the victim lodged a complaint in Bijinapally Police Station stating that on 28.10.2006 she went to the house of PW.1 and the accused, who are her sister and brother-in-law, on their force to stay in their house. On the night of the same day, the accused brought intoxicated liquor and forced her to consume in the name of formality and he also consumed the same. In an intoxication condition, he beat his wife-PW.3, who fell unconscious. Then, he committed rape on the victim. On receipt of the said complaint, the Station House Officer, Bijinapally Police Station, registered a case in Crime No.98 of 2006 for the offence punishable under Section 376 of Indian Penal Code (for short ‘IPC’) and after completion of investigation, the police filed charge sheet against the accused, to which he did not plead guilty and claimed himself to be innocent. According to him, he was falsely implicated in the instant case. 4. The prosecution had examined fifteen witnesses to substantiate its case. The victim was examined as PW.9. The husband of victim was examined as PW.10. The younger sister of the victim and wife of the accused was examined as PW.3. PWs.1, 2 and 4 are circumstantial witnesses. PWs.6 and 8 are panch witnesses. PWs.11 and 12 are Doctors. PWs.12, 14 and 15 are the investigating officers. 5. After conducting trial, having considered the rival submissions and basing on the material available on record, the trial Court arrived at a finding that the prosecution had fully established the charges under Sections 376 and 323 of IPC against the accused beyond all reasonable doubt. PWs.11 and 12 are Doctors. PWs.12, 14 and 15 are the investigating officers. 5. After conducting trial, having considered the rival submissions and basing on the material available on record, the trial Court arrived at a finding that the prosecution had fully established the charges under Sections 376 and 323 of IPC against the accused beyond all reasonable doubt. Consequently, the accused was found guilty for the offence under Section 376 of IPC and he was convicted and sentenced to undergo rigorous imprisonment for a period of seven (7) years and also to pay fine of Rs.5,000/- (Rupees five thousand only), in default of payment of fine amount, he shall under rigorous imprisonment for a period of three (3) months. The accused was also convicted and sentenced to undergo rigorous imprisonment for a period of three (3) months for the offence under Section 323 of IPC. 6. Being aggrieved by the judgment of the trial Court, the accused had preferred an appeal before the appellate Court. The learned Sessions Judge carefully scrutinized the entire evidence on record and observed that the trial Court was perfectly justified in awarding the sentence of seven years rigorous imprisonment to the accused and consequently the appeal filed by the accused was dismissed. 7. Looking to the gravity of the offence, this Court has examined the entire evidence and documents on record. Even on close scrutiny and marshalling of evidence, I could not persuade to take a different view than taken by the Courts below as far as the conviction of the accused is concerned. In my considered view, the prosecution version is both, truthful and credible. It is crystal clear that the accused had forcibly taken the victim to his house for staying for the night and in the name of formality, he made her consume intoxicated liquor and assaulted her for sexual favour. 8. Now, the moot question which squarely falls for consideration pertains to the correct and appropriate sections of the Indian Penal Code under which the accused is required to be convicted according to the offence he had committed. The trial Court and the appellate Court had convicted the accused under Section 376 of IPC. 8. Now, the moot question which squarely falls for consideration pertains to the correct and appropriate sections of the Indian Penal Code under which the accused is required to be convicted according to the offence he had committed. The trial Court and the appellate Court had convicted the accused under Section 376 of IPC. In order to arrive at the correct conclusion, this Court deems it appropriate to examine the basic ingredients of Section 375 IPC punishable under Section 376 of IPC to demonstrate whether the conviction of the accused under Section 376 IPC is sustainable. 9. It is relevant to refer Sections 375 and 376 of IPC and the same are extracted hereunder: " 375. Rape - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following 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. 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 sixteen years of age. Explanation: - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception : Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." 10. Under Section 375 IPC, six categories indicated above are the basic ingredients of the offence. In the facts and circumstances of this case, the victim was a married woman, therefore, her consent was relevant. The accused had forcibly taken her to his house for stay, with an intention to commit sexual intercourse with her. Under Section 375 IPC, six categories indicated above are the basic ingredients of the offence. In the facts and circumstances of this case, the victim was a married woman, therefore, her consent was relevant. The accused had forcibly taken her to his house for stay, with an intention to commit sexual intercourse with her. The important ingredient of the offence under Section 375 punishable under Section 376 IPC is penetration which is altogether missing in the instant case. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In absence of penetration to any extent would not bring the offence of the accused within the four corners of Section 375 of the Indian Penal Code. Therefore, the basic ingredients for proving a charge of rape are the accomplishment of the act with force. The other important ingredient is penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim completely, partially or slightly would be enough for the purpose of Section 375 and 376 of IPC. 11. The Hon’ble Supreme Court in State of U.P. v. Babul Nath , [ 1994 SCC (6 ) 29] , dealt with the basic ingredients of the offence under Section 375 in the following words:- "8. It may here be noticed that Section 375 of the IPC defines rape and the Explanation to Section 375 reads as follows: "Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." From the Explanation reproduced above it is distinctly clear that ingredients which are essential for proving a charge of rape are the accomplishment of the act with force and resistance. To constitute the offence of rape neither Section 375 of IPC nor the Explanation attached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Section 375 and 376 of IPC. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains. But in the present case before us as noticed above there is more than enough evidence positively showing that there was sexual activity on the victim and she was subjected to sexual assault without which she would not have sustained injuries of the nature found on her private part by the doctor who examined her." 12. In view of the catena of judgments of Indian and English Courts, it is abundantly clear that slight degree of penetration of the penis in vagina is sufficient to hold accused guilty for the offence under Section 375 of IPC punishable under Section 376 of IPC. 13. In the backdrop of settled legal position, when this Court examined the instant case, the conclusion becomes irresistible that the conviction of the accused under Section 376 IPC is wholly unsustainable. As seen from the material placed before the Courts, there was no specific evidence either oral or documentary evidence to establish the allegations made against the accused with regard to the rape beyond reasonable doubt. In the absence of any sufficient material to prove the alleged rape, the conviction under Section 376 IPC is wholly illegal and unsustainable. 14. In the instant case, the accused has been charged with Section 376 and 323 IPC only. In absence of charge under any other section, the question now arises - whether the accused should be acquitted; or whether he should be convicted for committing any other offence pertaining to forcibly outraging the modesty of a woman. 14. In the instant case, the accused has been charged with Section 376 and 323 IPC only. In absence of charge under any other section, the question now arises - whether the accused should be acquitted; or whether he should be convicted for committing any other offence pertaining to forcibly outraging the modesty of a woman. In a situation like this, this Court would like to invoke Section 222 of the Code of Criminal Procedure, which provides that in a case where the accused is charged with a major offence and the said charge is not proved, the accused may be convicted of the minor offence, though he was not charged with it. 15. The main contentions of the accused are that there is a delay in lodging the complaint which itself is a fatal to the case of the prosecution. PW.3, who is wife of the accused, and eye-witness to the alleged offence, did not support the prosecution case and turned hostile. Except PW.3, there is no other eye-witnesses to the alleged offence. The Courts below erred in convicting the petitioner without there being any cogent evidence and if the alleged rape has been taken place, the victim would have received the injuries on vital parts of her body however, there were no injuries found. Hence, the conviction and sentence is not sustainable and liable to be set aside. 16. On careful analysis of the prosecution evidence and documents on record, as rightly contended by the learned counsel for the accused, the accused cannot be held guilty for committing an offence punishable under Section 376 IPC. According to the version of the prosecution, the accused had forcibly taken the victim for staying her in their house and on formality, make her to take intoxicated liquor and then, he committed rape on her. As per the prosecution story, the entire process happened in the presence of the PW.3-sister of the victim and wife of the accused, however, when she tried to rescue the victim, the accused beat her and she fell unconscious. If the accused beat PW.3 by which she fell unconscious for some time, it is nothing but natural, she may inflict with some grievous injury. In proof of the said incident, prosecution did not whisper about whether PW.3 underwent any medical examination and no piece of medical evidence was placed before the Court to that effect. If the accused beat PW.3 by which she fell unconscious for some time, it is nothing but natural, she may inflict with some grievous injury. In proof of the said incident, prosecution did not whisper about whether PW.3 underwent any medical examination and no piece of medical evidence was placed before the Court to that effect. In this view of the matter, no offence under Section 376 IPC is made out. 17. In this view of the matter, it has become imperative to examine the legal position whether the offence of the accused falls within the four corners of other provisions incorporated in the Indian Penal Code relating to outraging the modesty of a woman/girl under Section 354. 18. On the basis of evidence and documents on record, in my considered view, the accused is guilty under Section 354 IPC because all the ingredients of Section 354 IPC are present in the instant case. It is relevant to refer Section 354 IPC and the same is extracted hereunder: " 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." 19. So far as the offence under Section 354 IPC is concerned, intention to outrage the modesty of the women or knowledge that the act of the accused would result in outraging her modesty is the gravamen of the offence. 20. 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. 21. 'Modesty' is given as "womanly propriety of behaviour, 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". 22. 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. 21. 'Modesty' is given as "womanly propriety of behaviour, 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". 22. 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. 23. 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. 24. After carefully analyzed the provisions pertaining to outraging of the modesty of a woman/girl under Section 354 of IPC. This exercise was undertaken to clearly spell out ambit and scope of offences under these provisions. On the basis of the evidence and documents on record, I am of the considered opinion that the conviction of the accused under Section 376 and 323 of IPC are wholly erroneous and unsustainable and consequently, the judgments of the appellate Court and the trial court are set aside. On evaluation of the entire evidence and documents on record, in my considered view, the accused is clearly guilty of the offences under Sections 354 and 324 IPC. 25. In the facts and circumstances of this case, and in view of the decision of the Hon’ble Supreme Court in Lakhjit Singh v. State of Punjab , [1994 SCC SUPL. (1) 173] , the ends of justice would be subserved by convicting the accused under Sections 354 and 324 IPC. 25. In the facts and circumstances of this case, and in view of the decision of the Hon’ble Supreme Court in Lakhjit Singh v. State of Punjab , [1994 SCC SUPL. (1) 173] , the ends of justice would be subserved by convicting the accused under Sections 354 and 324 IPC. The accused is sentenced to undergo Rigorous imprisonment for one (1) year under Section 354 IPC and pay fine of Rs.1,05,000/- (Rupees one lakh and five thousand only), in default of payment of fine, he shall undergo simple imprisonment for a period of one (1) month. The accused is also convicted under Section 324 of IPC and sentenced to six (6) months rigorous imprisonment. Both the sentences shall run concurrently. On payment of aforesaid fine amount, the trial Court shall permit the victim to withdraw an amount of Rs.1,00,000/- (Rupees one lakh only) towards compensation on proper identification and acknowledgment, in accordance with law. 26. Accordingly, the Criminal Revision Case is partly allowed. Miscellaneous Petitions, pending if any, shall stand closed.