Madhya Pradesh High Court
Makhan vs State Of M.P. on 9 October, 2007
Author: K.S. Chauhan
Bench: K.S. Chauhan
JUDGMENT K.S. Chauhan, J.
1. This criminal appeal has been preferred under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment, finding and sentence dated 14th September, 1993 passed by III Additional Sessions Judge, Sagar in Sessions Trial No. 192/91 whereby the appellant has been convicted under Section 354 of Indian Penal Code and sentenced to R.I. for one year with fine of Rs. 1,000/- in default of payment of fine R.I. for three months.
2. The prosecution case in short is that on 27th April, 1991 at 3:00 p.m. victim aged 10 years was returning to her house from well after taking bath. The appellant met her near the village Kanera Dev, he caught hold of her, lifted and carried toward hillock (touriya). She cried but he did not release. He made her laid down on the ground, removed her undergarment (janghiya) and inserted his male organ into her private part and committed sexual intercourse. There was pain in her private part. The appellant put the cloth into her mouth, therefore, she could not cry. After sometime, he discharged and ran away. She came to the house and told about the incident to her maternal uncle Mahesh, maternal aunt and maternal grandmother. The report was lodged. On the basis of this report, the Crime No. 201/91 was registered under Section 376 of IPC at police station Motinagar. The victim was sent to Government Hospital, Sagar for medical examination where she was examined by Dr. Ku.Usha Saini on 28th April, 1991. X-ray was done. Ossification test was done for confirmation of her age. She was found in between 10 to 12 years of age. Her underwear (janghiya) and the slide of vaginal smears were seized. The appellant was arrested and sent for medical examination wherein he was examined by Dr. Mithilesh Kumar Choubey (PW-15). He found him competent to perform sexual intercourse. The map was prepared. The statements under Section 161 were recorded. After completing the investigation, the charge sheet was filed in the Court of Chief Judicial Magistrate, Sagar wherein the Criminal Case No. 1446/91 was registered. The case was committed on 25.06.1991 to the Sessions Court for trial.
3. The appellant was charged under Section 376 of IPC that on 27.04.1991 at village Kanera Dev he committed the rape on victim and thereby committed an offence punishable under Section 376 of Indian Penal Code.
4. The appellant abjured the guilt and claimed to be tried mainly contending that he has been falsely implicated.
5. Prosecution examined as many as 14 witnesses and the defence examined 2 witnesses. After considering the evidence, the trial Court found the charge under Section 376 IPC not proved and acquitted the appellant from the charge but found him guilty under Section 354 of IPC and convicted and sentenced as mentioned in para 1 of this judgment. Being aggrieved by the judgment, finding and sentence, the appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure on the grounds mentioned in the memo of appeal.
6. The learned Counsel of the appellant has submitted that there are contradictions and omissions in the statement of the prosecution witnesses. No injury was found on the person of victim. Medical evidence does not support the prosecution case. The offence of Section 354 of IPC was not proved beyond reasonable doubt. The trial Court has committed an illegality in convicting and sentencing the appellant under Section 354 of IPC hence the appellant deserves to be acquitted.
7. On the other hand, Shri G.S. Thakur, learned P.L. appeared for the State/respondent submitted that the prosecution has proved the case against the appellant beyond reasonable doubt and has rightly been convicted under Section 354 of IPC hence it does not call for any interference.
8. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under Section 354 of Indian Penal Code for outraging the modesty of victim.
9. I have perused the entire case and evidence recorded therein.
10. PW-6 is the victim. She resides at Khurai but before 21/2 months her mother expired, therefore, she was brought by her maternal uncle at Kanera Dev village. According to her, she was returning after taking bath on a well. Leela (PW-7) was with her. The appellant met her on the way. He lifted her and carried towards hillock (touriya), she cried but he gagged her mouth. He slapped her, laid down on the ground, removed her undergarment, he also removed his undergarment and tied her feet by cloth. He also caused injuries by biting. He washed her undergarments containing white stains.
11. Leela (PW-7) who was with her at that time has also supported the version of the victim that the appellant lifted victim and carried her, removed her undergarment and mounted over her. Victim started weeping. He gagged her mouth with cloth.
The appellant was threatening to this witness that if she will come towards that side he will kill her then they returned to the houses. Victim narrated the story to her maternal grandmother Gomti Bai (PW-8) who has stated the fact that victim told her that the appellant carried her, fell her down on the ground, removed her undergarment, gagged her mouth by cloth, mounted over her and committed sexual intercourse. It was also told that the appellant washed the undergarment. Leela also told that the appellant fell her down and mounted over her. She herself saw the blood coming out from the private part of the victim and bloodstains on undergarment (janghiya) and frock which she was wearing at that time.
12. Mahesh Kumar (PW-3) who is the maternal uncle of the victim has also deposed in the same manner has stated by her mother Gomti Bai (PW-8). He has stated that at evening when he returned back to his house victim told him that while she was returning from well the appellant caught hold of her, removed her undergarment and committed sexual intercourse and the undergarment (janghiya) which was containing the bloodstains was washed by the appellant himself.
13. Thus, the version of victim is supported by eyewitness Leela (PW-7) and further supported by the statement by her maternal uncle and her maternal grandmother.
14. The defence of the appellant is that victim stole the bathing soap and on his demand the soap was not provided then he slapped her.
15. The suggested questions have been put to victim and Leela (PW-7) but they have denied such suggestions.
However, the appellant has adduced the defence evidence in this regard.
16. Siyarani (DW-1) and Veer Singh (DW-2) have deposed with regard to the defence of the appellant mainly stating that victim stole the soap and, therefore, the appellant slapped her.
17. Siyarani (DW-1) has admitted in cross examination that she is not in a position to state what happened prior to reaching her there. Similar is the statement of Veer Singh (DW-2).
18. These witnesses are depositing before the Court for the first time regarding the stealing of soap by victim and beating her by appellant. The defence appears to be an after thought. If, for the sake of argument, this defence be accepted even then the beating of a girl of 10-12 years of age was not justified.
19. The report Ex.P/6 was lodged on the same day at 8:30 p.m. at Police Station Motinagar. The victim was referred for medical examination which was done by Dr. Ku. Usha Saini (PW-12) and submitted medical report Ex.P/10. She opined that the rape was not committed. The appellant was also referred for medical examination and Dr. Mithilesh Kumar Choubey (PW-15) found him competent to commit sexual intercourse vide his report Ex.P/13.
20. No doubt some contradictions and commissions occurred in the statement of the witnesses and on that basis the benefit has been given to the appellant by the trial Court for the offence under Section 376 of Indian Penal Code was not found proved but so far as the offence under Section 354 is concerned, there is ample evidence against the appellant that he lifted the victim aged about 10-12 years and carried towards hillock (touriya) side, removed her undergarment, also removed his undergarment, laid her down, mounted over her, bite her and washed the undergarment. This evidence clearly shows that he used the criminal force with intent to outrage the modesty of victim.
21. Section 354 of IPC runs as follows:
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.
22. In the case of Rupan Deol Bajaj v. Kanwar Pal Singh Gill , the Apex Court has held thus:
The contention that the other ingredient of Section 354 viz. intention to outrage the modesty of respondent was lacking in this case cannot be accepted. It is true that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other ingredients for convicting a person. But, those ingredients being states of mind may not be provide by direct evidence and may have to be inferred from the attending circumstances of a given case. Since, however, the present case is at the incipient stage, it has to be ascertained, only prima facie, whether the respondent had the requisite intention. The sequence of events indicates that the slapping was the finale to the earlier overtures of the respondent, which considered together, constitute the requisite culpable intention. Even presuming that he had no such intention he must be attributed with such knowledge, as the alleged act was committed by him in the presence of a gathering comprising the elite of the societyas the names and designations of the people given in the FIR indicate. Moreover, there is nothing in the FIR to indicate, even remotely, that the indecent act was committed by the respondent accidentally or by mistake or it was a slip.
Thus apart from the offence under Section 354 IPC - an offence under Section 509 IPC has been made out on the allegations contained in the FIR as the words used and gestures made by the respondent were intended to insult the modesty of the appellant.
23. In the case of Satyaendra Dayal Khare v. State of Maharashtra (2005) 12 SCC 485, the Apex Court has held thus:
The case against the appellant, who was the Collector of Customs and Excise, was initiated on the basis of information furnished by PW 1, the complainant, who was a member of the Indian Revenue Services and who was undergoing training as a Probationary Officer. PW 1 alleged that she was molested by the appellant while she was in his chamber. According to her, the accused led her to his chamber and switched on a VCR and displayed a film relating to seizure of some contraband gold. When this film was being viewed, the complainant was seated on a sofa and the appellant was standing behind. Suddenly, the appellant caught hold of her hand and pushed her down in the sofa. Though PW 1 wanted to get out of the room, the appellant caught hold of her and pushed her down and put the entire weight of his body on her and made a statement that he wanted to have sexual relationship with her. PW 1 cam out of the room and wanted to get back to her hostel. But, when she came to the exit point and desired to have a taxi, the appellant came and pushed her inside the official car which was standing there at that place. Because of insistence of PW 1 she was dropped at the railway station. It was alleged that while PW 1 was in the car the appellant touched her body and thereby outraged her modesty. PW 1 thereafter reached her room in the hostel. She telephonically contacted PW 10, the Director General of National Academy of Customs, Excise and Narcotics and gave the details of the entire incident that had happened in the office. She also informed her husband who was working at Hyderabad. The written complaint in the presence case was filed by PW 1 after two days of the incident. The trial court acquitted the appellant. But in appeal, the High Court convicted him under Section 354 and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 25,000.
24. In the case of State of T.N. v. Karuppusamy 1993 Supp (1) SCC 78, the Apex Court has held thus:
Normally in a village no woman would come forward, unless it is true, with a plea that her modesty was outraged. But such statement, her very honour was at stake. Coming as she does from a cloistered society her whole future would become bleak. When it has not been shown that there was any enmity between her and the accused, characterisation that her evidence does not inspire confidence is wrong.
25. In the case of Tarkeshwar Sahu v. State of Bihar (Now Jharkahnd) , the Apex Court has held thus:
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. 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.
26. So far as the present case is concerned, there was no any enmity of the appellant with victim and hence there was no question to falsely implicate him. No such minor girl will spoil her life by putting her character at stake, therefore, the evidence given by the victim (PW-6) and Leela (PW-7) inspire confidence.
27. The trial Court has discussed the entire aspect and rightly came to the conclusion that offence under Section 354 of IPC is proved beyond reasonable doubt against the appellant. The appellant has been rightly convicted for this offence, therefore, I affirm the finding of conviction made by the trial Court.
28. The learned Counsel for the appellant submits that the appellant be released on the probation or in alternatively he has submitted that the appellant has already suffered 2 months R.I. and hence he be released on the sentence already undergone. But keeping in view the facts and circumstances of this case, the prayer is not acceptable. The sentence awarded by the trial Court is not severe and hence it does not call for any interference.
29. There is no merit or substance in this appeal hence it deserves to be dismissed.
30. Consequently, the appeal fails and is dismissed accordingly. The appellant is on bail. His bails bonds are cancelled. He be directed to surrender before CJM, Sagar on 30.10.2007 to serve out the remaining part of the sentence.