Allahabad High Court
Bachcha Son Of Maheshwari Deen Kumar vs State Of U.P. on 3 August, 2007
Equivalent citations: 2008CRILJ483, 2008 CRI. L. J. 483, 2007 (6) ALL LJ 516, 2008 (2) AJHAR (NOC) 364 (ALL.) = 2008 CRI. L. J. 483, (2007) 59 ALLCRIC 949
Author: A.K. Roopanwal
Bench: Imtiyaz Murtaza, A.K. Roopanwal
JUDGMENT A.K. Roopanwal, J.
1. The present appellant faced trial in S.T. No. 205/1996 lor having allegedly committed rape on the girl of tender age whose name need not be indicated and she can be described as the victim or prosecutrix. The Special Judge, S.C./S.T. Act, Hamirpur found the appellant guilty of offences punishable under Sections 376 read with Section 511, I.P.C. and Section 3(2)(5) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as the S.C/S.T. Act). He was sentenced to 10 years R.I. under Section 376/511, I.P.C. and a fine of Rs. 2,500/- and life imprisonment under Section 3(2)(5) of S.C/S.T. Act along with fine of Rs. 2,500/-. All the imprisonments were made to run concurrently.
2. The prosecution version in a nutshell is that on 16.6.96 st about 4.00 p.m. the prosecutrix was playing with his brother Jai Narain in front of her house. The appellant came there and enticed her away to his house and closed the door. After sometime the cries of the girl were heard by Jai Narain who told this fact to the complainant who along with Bhagwan Das, Khem Chand and Pramod reached at the house of the appellant. As the door was closed, they all made entry from the roof and apprehended the appellant red handed committing rape with the prosecutrix. It was 4.30 p.m. The prosecutrix was all naked and was bleeding through her vagina.
3. The complainant got the report of the incident written from Pancham Singh and gave it at the police station Jalaipur, district Hamirpur, along with the appellant. On the basis of this report chik FIR was written by Constable Agnu Ram on 16.6.96 at 9.50 p.m. He made the entry of the case at the same time in the relevant G.D.
4. The investigation of the case was taken up by the then C.O., Rath, Shri Hari Prakash Sharma. He recorded the statements of the complainant, prosecutrix, witnesses Bhagwan Das, Khemchand, Pramod, Jai Narain, Devendra and Babu. He inspected the place of occurrence and prepared the site plan. He also recorded the statements of villagers Naithu, Sitaram, Nandi and others. He also recorded the statement of the Doctor, who had examined the prosecutrix. After concluding the investigation, the I.O. submitted the charge sheet.
5. The appellant was charged under Section 376, I.P.C. and under Section 3(2)(5), S.C/S.T. Act by the Sessions Court who tried the matter. The appellant denied from the charges and claimed for his trial.
6. The prosecution in order to prove the charges examined P.W. 1 complainant Shiv Charan, P.W.2, the prosecutrix, P.W.3, Doctor Mrigendra Rajput, P.W.4, Jai Narain and P.W.5, C.O. Police Hari Prakash Sharma.
7. The appellant was examined under Section 313, Cr.P.C. in which he totally denied from the prosecution case and said that the prosecution is completely false. In his defence he examined D.W. 1 Chandra Bhan.
8. P.W. 1, the complainant of the case in his statement supported the prosecution version as disclosed in the written report which was proved by him as Ex-Ka-1.
9. P.W. 2, the prosecutrix stated that it was about 4.00 p.m. when the occurrence took place. She was playing with glass balls at her door. Babu and Jai Narain were also playing with her. Appellant came there and took her away in his house. Nobody was present in the house. The appellant made her naked and also undressed himself. Thereafter he laid her down on the ground and came over her. She cried which were heard by her brother. He called her father who came with some other persons. The appellant ran away.
10. P.W. 3, Dr. Mrigendra Rajput stated that on 17.6.96 he was working as Gynaecologist at Government Hospital, Rath. On this date at 9.45 a.m. he examined the prosecutrix. No external injury was found either on her person or her private parts. The hymen was not torn nor there was any sign of injury on it. The vagina was not admitting even a single finger. Vaginal swab was taken and was sent for pathological examination. The doctor showed his inability about the commission of rape. The medical report was proved by the doctor as Ex-Ka-2.
11. P.W. 4, Jai Narain stated that on the day of occurrence at about 4.00 p.m., he was playing glass balls with her sister, the prosecutrix. The appellant came there and asked the prosecutrix to press his back. She denied. Thereafter, the appellant took away the prosecutrix to his house. All others continued to play. After 2-4 minutes he heard the cries of his sister on which he called his father. His father went to the house of the appellant along with Khem Chand and Bhagwan Das.
12. P.W. 5 is the Investigating Officer of the case and the actions taken by him have been described above.
13. The defence witness, D.W. 1, Chandra Bhan stated that the complainant had lodged a false case of rape with his daughter against the appellant due to election enmity. In the days of the occurrence Rasik Lal Lodhi had fought the election for Pradhanship. Babu Lodhi was against him. The complainant supported Rasik Lal and the appellant supported Babu Lodhi. This generated enmity between the two. It is also said by the witness that the brother of the appellant namely Lallu had given Rs. 10,000/- to the complainant. This amount was not returned by him and on this account there was enmity between the complainant and the appellant.
14. Learned trial Court considered the evidence of both the sides and after analysing it found the case of the prosecution proved beyond all the reasonable doubts against the appellant and recorded the orders of conviction and sentence vide judgment dated 13.4.06.
15. We have heard Sri Vijay Bahadur Shivhare, learned Counsel for the appellant, Sri M.S. Yadav, learned AGA and perused the record.
16. In support of the appeal, the learned Counsel for the appellant submitted that the prosecution version is highly improbable. The prosecution did not produce any independent witness in support of its case and the witnesses relied upon by the court below are all of the same family and are interested witnesses. The defence witness was wrongly disbelieved. Further more, the evidence on record, even if accepted, does not prove commission of rape or the attempt of it and the medical evidence also support such a view. At the most, on the evidence taken on its entirety, it can be said that there was a preparation to commit rape and nothing more. The learned Counsel for the appellant also argued that there was no justification to record a separate sentence for the offence under Section 3(2)(v) of the SC/ST Act as it is not a penal provision.
17. Per contra learned Counsel for the State submitted that in our traditional bound country a rural girl of tender age would not tarnish or damage her own reputation and image merely because her family members had any dispute with or animosity against the accused by volunteering to falsely claim that she had been raped and defiled. According to him, the evidence not only shows the intention to commit the rape, an attempt was also made to do it and successful in completion thereof.
18. In view of the rival contentions first we would like to discuss as to whether the prosecution witnesses of fact were rightly believed or not by the trial court. It is worthwhile to mention that all the prosecution witnesses of fact are related to each other but that alone cannot be a sufficient ground to discard their testimony out rightly.
19. In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down as under:
A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.
20. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan in which Vadivelu Thevar v. State of Madras also relied upon. The Apex Court observed that We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan . We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.
21. Again in Masalti and Ors. v. State of U.P. Apex Court observed : (p. 209-210 para 14):
But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
Thus In view of the above legal position it is now settled that inter-se relationship of the witnesses cannot be a ground to discard them but while assessing their evidence the Court must be at guard. The prosecution in the present case examined PW1 Shiv Charan, PW2 the prosecutrix and PW4 Jai Narain as the so-called eyewitness of the occurrence.
22. PW1 Shiv Charan is the father of the prosecutrix while PW4 is her brother. In this way all are related to each other and as per the above discussion their evidence requires close scrutiny.
23. PW1 Shiv Charan stated that on the date of occurrence at about 4.00 P.M. he was at his door when the appellant enticed away his daughter and took her into his house. On the cries of the girl Jai Narain came running to him and told that his daughter was crying. He ran to the place of occurrence. Dharam Chand, Pramod and Bhagwan Das also reached there. The door of the house was chained from inside. They all went into the house of the appellant from the house of Babu, through a ladder. He found his daughter naked, she was bleeding from her private parts, the appellant was also naked. Both were taken to the police station arid the report was lodged.
24. The witness was tried to be belied on the ground that he has come to depose against the appellant on account of enmity. Regarding the enmity it was pointed out that Babu Lodhi had fought election of Piradhanship against Rasik Lal. This witness supported Rasik Lal while the appellant supported Babu Lodhi. This fact was completely denied by the witness and there is nothing to show that this witness had supported Rasik Lal and the appellant had supported Babu Lodhi. Thus the enmity pleaded by the appellant has not been proved. Moreover, the above enmity could not prompt the witness to sacrifice the chastity of his daughter. There could be several other ways to take revenge on account of the above enmity, if it was there, and he in normal circumstances would not take revenge through his daughter. The other enmity, which has been pleaded for falsely implicating the appellant is that the complainant had taken a loan from the brother of the appellant and when he demanded the loan amount, the appellant has been falsely implicated in the present case. This ground of enmity is not palatable. A person would not normally implicate the brother of that person from whom he had borrowed money. If he wanted to take revenge, the main enemy would be the person from whom the money was taken. Thus the grounds of enmity, as suggested by the appellant, are not convincing and it cannot be held that the applicant has been falsely implicated on account of any such enmity.
25. The statement of the witness has also been tried to be belied on the ground that there is distinction in his statement and the site plan about the place of occurrence. This witness has stated that the occurrence occurred in the western room of the appellant's house while in the site plan this place has been shown in the eastern room. This difference, in our opinion, is Immaterial as there may be a fault in assessing the direction. From the statement of the witness the prosecution story regarding the time, place and manner of occurrence is fully proved and there is nothing on record to disbelieve this witness. He was rightly believed by the trial court.
26. PW4 Jai Narain is another eyewitness. He is a witness, who was playing with the prosecutrix when the appellant enticed her away. He stated that the appellant had taken away the prosecutrix before him while she was playing outside of her house. After 2-4 minutes he heard the cries of the prosecutrix on which he called his father and then all went to the house of the appellant. Witness is the real brother of the prosecutrix and his playing with her at the relevant time is believable fact as he was a child. Nothing could be shown in his statement to belie the fact that he was present when the prosecutrix was enticed away by the appellant or that all went to the house of the appellant or the appellant was arrested. From his statement it appears that he had seen the appellant taking away the prosecutrix. It is also proved from his statement that the prosecutrix cried on which all went to the house of the appellant. He is aiso a reliable witness.
27. PW2, the prosecutrix has stated that at the time of the occurrence it was about 4.00 P.M. She was playing with glass balls at the door of her house. The appellant came there and took her away into his house. Nobody was present in the house. He made her naked and undressed himself. He then laid her down on the ground and sat on her body. She cried on which her father and others came. The appellant ran away. The statement of the witness was tried to be belied as she stated that the appellant had run away while the prosecution story is that he was arrested at the spot. This may be due to lapse of memory of this witness. It is quite possible that being a minor child of about 5 years of age she could not remember at the time of her statement before the Court as to whether the appellant was arrested at the spot or had run away. The above fact cannot make her statement unreliable. She could not be belied on the facts that the appellant had enticed her away into his house, undressed himself and the witness and sat on her body. She could not be belied that on her cries her father and others came and witnessed the occurrence. To us this witness is also a reliable witness and was rightly believed by the court below.
28. Thus we find that from the above witnesses the prosecution has been able to prove that the appellant had enticed away the prosecutrix in his house where he undressed her and himself and sat on her body.
29. Now the moot question, which squarely falls for our consideration is as to what offence or offences was were committed by the appellant and under what Section (s) of the I.P.C. or the other Act he is required to be convicted. The trial court has convicted him under Sections 376/511 I.P.C. and 3(2)(v) of the SC/ST Act.
30. First of all, we will take up the conviction recorded under Section 376/511 I.P.C. In order to arrive at the correct conclusion, we deem it appropriate to examine the basic ingredients of Section 375 I.P.C. punishable under Section 376 I.P.C. to demonstrate whether the conviction of the appellant under Section 376/511 I.P.C. is sustainable.
Section 375 of the I.P.C. reads as under:
375. 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.
Explanation. - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
31. From the above definition it is very much clear that penetration is the main ingredient for the offence of rape defined under Section 375 of the I.P.C. and punishable under Section 376 of the I.P.C. From the facts of the present case it appears that the element of penetration has not been proved either from the statements of the witnesses or from the medical evidence on record. Thus we are of the opinion that the offence punishable under Section 376 I.P.C. was not at all proved against the appellant.
32. Now comes the question as to whether the appellant can be found guilty for the offence of "attempt to commit rape". To assess as to whether there was an attempt to commit rape or not by the appellant, we have to see as to what an attempt means.
In every crime there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage i.e. the attempt is successful then the crime is complete. If the attempt fails, the crime is not complete but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.
A culprit first intends to commit the offence, then makes preparation for committing and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word 'attempt' is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The Will is not be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation in committing an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and en attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act alone in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.
33. Now we proceed to analyse the facts of the present case in the light of the above legal position. Though in the present case FIR version was of rape but before the Court the statements of the witnesses could not prove the commission of rape nor the commission of rape could be proved by medical evidence on record. There is no material on record to show that the accused was determined to have sexual intercourse with the prosecutrix in all events. From the statements of the complainant and his son neither the rape is proved nor attempt of it. From the statement of the prosecutrix only this much is proved that the appellant undressed her and himself also and after laying her down on the ground sat on her. There is nothing visible from the statement of the prosecutrix also that any attempt of penetration was ever done by the appellant. In the absence of any attempt to penetrate the conviction under Section 376/511 of the I.P.C. could not be said to be legal and proper as penetration is the sine qua non for an offence of rape. The attempt of this offence can be said only when an attempt was made for penetration of male organ into the private parts of the prosecutrix. In the present case there is nothing to conclude that the appellant at all tried to penetrate his male organ into the vagina of the girl. Hence he could not be held guilty for attempt to commit rape.
34. In Criminal Appeal No. 161 of 1930, decided on 12.8.1930 reported in Law of Crimes by Ratanlal Dhiraj Lal, page 922 the facts were similar to the present case and the attempt to commit rape was not held by the Apex Court. In that case the complainant, a milkmaid, aged about 12 or 13 years, who was hawking milk, entered the accused's house to deliver milk. The accused got up from the bed on which he was lying and chained the door from inside. He then removed his clothes and the girl's petticoat, picked her up, laid her on the bed, and sat on her chest. He put his hand over he mouth to prevent her from crying and placed his part against hers. There was no penetration. The girl struggled and cried and so the accused desisted and she got up, unchained the door and went out. It was held that the accused was not guilty of attempt to commit rape but of indecent assault. The point of distinction between an offence to commit tape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her.
35. In view of the above citation also we are of the opinion that the present case cannot be said to be a case of attempt to commit rape and the appellant has wrongly been convicted for the offence punishable under Section 376 read with Section 511 of the I.P.C.
36. So far as the conviction and sentence recorded under Section 3(2)(v) of the SC/ST Act is concerned, that is wholly unwarranted. Section 3(2)(v) of the Act can be pressed into service only for enabling the Court to pass a sentence of imprisonment for life and a fine when a person has been found guilty of committing an offence under the I.P.C. which is punishable with imprisonment of a term of ten years or more. This provision does not prescribe a substantive sentence and thus passing a separate order of conviction and sentence under Section 3(2)(v) of the SC/ST Act cannot be said to be legal.
37. As the charges under Sections 376 read with Section 511 of the I.P.C. and Section 3(2)(v) of the SC/ST Act have not been proved, hence the question 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 the girl. In the situation like this the aid of Section 222 of the Cr.P.C. can be taken. It says 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 a minor offence though he was not charged with it. Section 222 of the Cr.P.C. reads as under:
222. When offence proved included in offenee charged : - (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.
38. In the case of Lakhjit Singh v. State of Punjab 1994 Supplementary (1) SCC 173 the Apex Court examined the scope of Section 222 of the Cr.P.C. In that case the accused was charged end tried for the offence under Section 302 of the I.P.C. but the ingredients of the section were absent. However, the ingredients of Section 306 of the I.P.C. were present. In that situation the Apex Court converted the conviction from Section 302 to Section 306 of the I.P.C. In that case it was argued that the accused cannot be tried under Section 306 of the I.P.C. because he did not have the opportunity to meet the charge under Section 306 of the I.P.C. However, the argument was not found correct and the accused was convicted under Section 306 of the I.P.C.
39. The scope of Section 222 of the Cr.P.C. was also dealt with by the Supreme Court in the case of Shamnsaheb M Multtani v. State of Kamataka . In that case it was opined that when an accused is charged with a major offence and this offence is not proved the accused can be convicted for the minor offence if the ingredients of the minor offence are available. The Apex Court had an occasion to explain in this case as to what a minor offence is. It was held that although expression "minor offence" is not defined in the Code, it can be discerned from the context that the test of a minor offence is no merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offence wherein the main ingredients are common, the one punishable amongst them with a lesser sentence can be regarded as a minor offence vis-a-vis the other offence.
40. Thus to take the aid of Section 222 of the Cr.P.C. it is necessary to examine the legal position whether the offence of the appellant falls within the four comers of the other provisions incorporated in the I.P.C. relating to the outraging the modesty of a woman or a girl under Sections 366 and 354 of the I.P.C.
Section 354 I.P.C. reads as under:
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.
Section 366 I.P.C. reads as under:
366. Kidnapping, abducting or inducing woman to compel her marriage, etc. : - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.
41. In the instant case the appellant had enticed away the victim to his house with the intention of committing illicit intercourse, hence the offence committed by him would definitely fall in the four corners of Section 366 I.P.C. In this regard we deem it proper to briefly reproduce the ratio of some reported cases to support our view.
42. In Khalilur Ramman v. Emperor AIR 1933 Rangoon 98, the Full Bench has observed as under:
The intention of the accused is the basis and the gravamen of an offence under Section 366. In considering whether an offence has been committed under this section, the volition, the intention and the conduct of the woman are nihil ad rem except in so far as they bear upon the intent with which the accused kidnapped or abducted her. If the accused kidnapped or abducted the woman with the necessary intent, the offence is complete whether or not the accused succeeded in effecting his purpose, and even if in the event the woman in fact consented to the marriage or the illicit intercourse taking place.
43. In Rajendra v. State of Maharashtra (1197) SCC (Crl) 840, the Apex Court observed as under:
Where the Courts had given cogent and convincing reasons for recording their finding that the accused had kidnapped the victim girl with intent to seduce her to illicit intercourse, conviction of accused under Section 366 was not interfered with.
44. The High Court of Delhi in Nirarrjan Singh v. State (Delhi) (1986) 2 Crimes 335, indicated that in what circumstances an offence under Section 366 I.P.C. is made out. In this case, the Court, while dealing with a case under Section 366 I.P.C. observed as under:
Where from the statement of prosecutrix, a girl of six years age it was evident that the accused took her on the pretext of getting her some biscuits to public toilets took off her salwar and also his own pant made her to lie on the floor and bent down on her when he was caught hold by a watchman in the locality, the accused would not be guilty of an attempt to rape however he would be guilty of an offence under Section 366 I.P.C..
45. In Vishnu v. State of Maharashtra (1997) Cr.L.J. 1724 (Bom.) the High Court of Bombay observed as under:
The accused were alleged to have kidnapped the girl below 16 years of age from the lawful guardianship of her parents and taken her to another city. The co-accused had simply met the girl and had not instigated her to accompany the accused. Hence, her conviction was set aside. So far accused was concerned, his offence of kidnapping was proved beyond all doubts and he was convicted under Section 363/366 I.P.C. Accused was however acquitted of the charge of rape under Section 375 I.P.C. as hymen of girl was intact and there were no outward sign of injuries or violence suggesting the sexual intercourse and consequently no rape could be said to have taken place.
46. So far as the offence punishable under Section 354 I.P.C. is concerned intention to outrage the modesty of a woman or knowledge that act of the accused would result in outraging her modesty is the gravnrnen of the offence.
47. 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 being as a class. It is a virtue which attaches to a female owing to her sex.
48. 'Modesty' is given as "womanly property 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."
49. 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. Raja Pandurang Mahale v. State of Maharashtra and Rupan Deol Bajan v. Kanwar Pal Singh Gill .
50. 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 .
51. We deem it appropriate to reproduce the cases of various Courts indicating circumstances in which the Court convicted the accused under Section 354 IPC.
52. In State of Kerala v. Hamsa (1988) 3 Crimes 161, it was stated as under:
What the Legislature had in mind when it used the word modesty in Sections 354 and 509 of the Penal Code was protection of an attribute which is peculiar to woman, as a virtue which attaches to a female on account of her sex. Modesty is the attribute of female sex and she possesses it irrespective of her age. The two offences were created not only in the interest of the woman concerned, but in the interest of public morality as well. The question of infringing the modesty of a woman would of course depend upon the customs and habits of the people. Acts which are outrageous to morality would be outrageous to modesty of women. No particular yardstick of universal application can be made for measuring the amplitude of modesty of woman, as it may vary from country to country or society to society.
53. A well known author Kenny in his book "outlines of Criminal Law" 19th Edn. Para 146 P. 203 has dealt with the aspect of indecent assault upon a female. The relevant passage reads as under:
In England by the Sexual Offences Act, 1956, an indecent assault upon a femal (of any age) is made a misdemeanour and on a charge for indecent assault upon a child or young person under the age of sixteen it is no defence that she (or he) consented to the act of indecency.
54. In the case of State of Punjab v. Major Singh a three Judge Bench of the Apex Court considered the question whether modesty of a female child of 7-1/2 months can also be outraged. The majority view was in affirmative. Bachawat, J., on behalf of majority opined as under:
The offence punishable under Section 354 is an assault on or use of criminal force to a woman the intention of outraging her modesty or with the knowledge of the likelihood of doing so. The Code does not define, "modesty". What then is a woman's modesty?
55. The essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under Section 354. 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, as for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the act, nevertheless, the offender is punishable under the section.
56. A female of tender age stands on a somewhat different footing. Her body is immature, and her sexual powers are dormant. In this case, the victim is a baby seven and half months old. She has not yet developed a sense of shame and has no awareness of sex. Nevertheless from her very birth she possesses the modesty, which is the attribute of her sex.
57. In Kanhu Charan Patra v. State (1996) Cr.L.J. 1151 (Orissa), the Orissa High Court stated as under:
The accused entered the house and broke open the door which two girls of growing age had closed from inside and molested them but they could do nothing more as the girls made good their escape. On being prosecuted it was held that the act of accused was of grave nature and they had committed the same in a dare devil manner. As such, their conviction under Section 354/34 was held proper.
58. The High Court of Delhi in the case of Jai Chand v. State (1996) Cr.L.J. 2039 (Delhi) observed as under:
The accused in another case had forcibly laid the prosecutrix on the bed and broken her Pyzama's string but made no attempt to undress himself and when prosecutrix pushed him away, he did make no efforts to grab her again. It was held that it was not attempt to rape but only ourtaging of the modesty of a woman and conviction under Section 354 was proper.
59. In Raja v. State of Rajasthan (1998) Cr.L.J. 1608 (Raj.) it was stated as under:
The accused took the minor to solitary place but could not commit rape. The conviction of accused was altered from Section 376/511 to one under Section 354.
60. The Apex Court in State of Kamataka v. Khaleel 2004 Cr.L.J. NOC 10 stated as follows:
The parents reached the sugarcane field when accused was in process of attempting molestation and immediately he ran away from the place. There was no evidence in support of allegation of rape and accused was acquitted of charge under Section 376 but he was held liable for conviction under Section 354/511 I.P.C.
61. The Apex Court in Nuna v. Emperor 13 Cr.L.J. 469 stated as follows:
The accused took off a girl's clothes, threw her on the ground and then sat down beside her. He said nothing to her nor did he do anything more. It was held that the accused committed an offence under Section 354 I.P.C. and was not guilty of an attempt to commit rape.
62. In view of the above citations if we analyse the facts of the present case, we would find that the appellant had also committed an offence punishable under Section 354 of the IPC. It is proved from the record that the accused not only took the victim to his house but also used criminal force against her intending that he will thereby outrage her modesty. Thus all the ingredients necessary to constitute an offence punishable under Section 354 I.P.C. are made out against the appellant.
63. In view of the forgoing discussion we come to the conclusion that the conviction of the appellant under Section 376 of the I.P.C. read with Section 511 of the I.P.C. and Section 3(2)(v) of the SC/ST Act is liable to be set aside. Instead of these offences he is guilty for the offence punishable under Section 366 and 354 of the IPC.
64. Consequently, we set aside the conviction of the appellant recorded under Sections 376/511 of the I.P.C. and Section 3(2)(v) of the SC/ST Act. instead of these offences, we find the appellant guilty of the offences punishable under Sections 366 and 354 I.P.C. and he is sentenced to undergo ten years rigorous imprisonment and a fine of Rs. 5000/- for the offence punishable under Section 366 of the I.P.C. and in default of payment of fine further R.I. for one year and two years R.I. for the offence punishable under Section 354 of the I.P.C. We direct that all the sentences of imprisonment shall run concurrently.
65. The appeal filed by the appellant is partly allowed accordingly.
66. A copy of this order be communicated to the Court below concerned for compliance.