Rajasthan High Court - Jodhpur
Chandra Bhan vs State Of Rajasthan on 31 August, 2017
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 22 / 1995
Chandra Bhan Son of Shwo Ram, by caste Jat, resident of Sherda,
Police Station Bhirani, Tehsil Bhadra, District Hanumangar.
----Appellant
Versus
The State Of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. SG Ojha
For Respondent(s) : Mr. Rajesh Bhati, PP
_____________________________________________________
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment 31/08/2017 The instant criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the accused-appellant Chandra Bhan against the judgment dated 15.12.1994 passed by the learned Additional District and Sessions Judge, Nohar, Camp Bhadra in Sessions Case No.47/1994 by which he convicted the accused- appellant for the offences under Sections 448, 324 and 376/5011 IPC and passed the following sentence :
u/s 448 and 324 IPC Three months simple imprisonment for each offence u/s 376/511 IPC Two years simple imprisonment with fine of Rs. 500/- and in default of payment of fine, further undergo one month's simple imprisonment.
Brief facts of the case are that on 22.06.1994 the complainant Sumitra (PW-5) submitted a report at Police Station (2 of 9) [CRLA-22/1995] Bhirani, District Sri Ganganagar alleging that day before yesterday her husband went to attend marriage function in the house of Brajlal Jat, her mother-in-law went to the house of Amru Jat and her father-in-law also went to his relative's house. She further alleged that after taking meal at about 10 PM she went to sleep outside her room. Her Dever was also sleeping in the Chowk. At about 11 PM in the night, she suddenly felt that somebody was touching her body in a wrong manner and biting near her abdomen. She woke up and saw that the accused-appellant Chandar Bhan was present there. She pushed back the accused- appellant and when she tried to catch him, he bit on her left hand. Thereafter she raised noise. Her Dever Gulab and Surender came there and consequent to which the accused-appellant ran away. At that time, her mother-in-law and some other person also reached there. They also saw the accused-appellant running from the house. She further alleged that the accused-appellant was trying to outrage her modesty. On the said report, the Police registered the FIR No. 81/1994 for offence under Sections 376/511, 452 & 323 IPC and started the investigation. After usual investigation, the police filed charge sheet against the accused-appellant for offences punishable under Sections 376/511, 458 & 324 IPC before the Court of Judicial Magistrate (First Class), Bhadra. Later on the case was transferred in the Court of Additional District and Sessions Judge, Nohar Camp at Bhadra.
The learned trial court after hearing the arguments and considering the material on record, framed charges against (3 of 9) [CRLA-22/1995] accused-appellant for offences under Sections 376/511, 458 & 324 IPC. The accused-appellant pleaded not guilty and claimed trial.
At the trial, the prosecution examined nine witnesses in all and thereafter the statement of the accused-appellant was recorded under section 313 Cr.P.C. In defence, no witness was examined.
At the conclusion of the trial, the learned Additional District and Sessions Judge, Nohar Camp at Bhadra vide judgment and order dated 15.12.1994 convicted the accused-appellant for offences under Sections 448, 324 and 376/511 IPC and passed the sentence as mentioned earlier. Hence, this criminal appeal at the instance of the accused-appellant against his conviction.
Learned counsel for the accused-appellant has argued that a false case has been lodged against the accused-appellant as no such type of occurrence has taken place. Further there are major contradictions, improvements and omissions in the statements of the prosecution witnesses. In the alternative, it has been argued that no offence under Section 376/511 IPC is made out against the accused-appellant and at the most the case may travel to offence under Section 354 IPC. Therefore, looking to the fact that at the time of incident the accused-appellant was only 22 years old, the benefit of probation may be given to the accused- appellant.
Learned Public Prosecutor has supported the impugned judgment and submitted that the accused-appellant entered in the house of the prosecutrix in the night and tried to commit rape with the prosecutrix. Therefore, no lenience should be shown in favour (4 of 9) [CRLA-22/1995] of the accused-appellant. Hence, the learned trial court has rightly convicted the accused-appellant for offence under Section 376/511 IPC and the impugned judgment warrants no interference at all.
Heard and considered the arguments advanced at the bar by the counsel for the parties and perused the judgment impugned passed by the learned trial court and also gone through the evidence available on record.
PW-1 Dr. Subhash Rajpoot in his statement has stated that he has medically examined the prosecutrix Sumitra and found two injuries of simple nature. PW-2 Jaiveer, husband of the prosecutrix Sumitra, in his statement stated that his brother Gulab Singh and one other person informed him that the accused-appellant Chandra Bhan entered in our house and tried to commit rape with your wife. On the said information, he reached home. Thereafter, they went to the police station and lodged the report of the said incident. PW-3 Gulab, aged about 11 years, in his statement stated that after hearing the noise of her bhabhi Sumitra, he reached there and saw the accused-appellant running from there. PW-4 Risal in his statement stated that he saw the accused- appellant Chandra Bhan running from the house. PW-5 the Prosecutrix Sumita in her statement narrated the same story which was earlier narrated to the police. But some contradictions came on record in her cross-examination. In her cross- examination, she stated that when she along with others reached at the police station for lodging the complaint, the accused- appellant Chandar Bhan was already present there. PW-6 Omwati (5 of 9) [CRLA-22/1995] (mother-in-law of the prosecutrix Sumitra) in her statement stated that when she reached her house, the prosecutrix Sumitra informed her about the occurrence. At the time of occurrence of incident, PW-6 Omwati was not present there. PW-7 is Bhaglaram, who was the Investigating Officer in this case. In his statement, PW-7 Bhaglaram denied the fact that at the time of lodging of the complaint by the prosecutrix Sumitra, the accused-appellant Chandar Bhan was present in the police station. The accused- appellant in his statement under Section 313 Cr.P.C. stated that due to some quarrel taken place between him and Jaiveer, husband of the prosecutrix Sumitra, he went to police station for lodging the report against Jaiveer, but on the contrary a false report has been lodged against him. He filed a complaint against the SHO concerned. For this reason, the SHO concerned filed challan against him. This is the whole story. In her statement, the prosecutrix Sumitra (PW-5) has not stated that the accused- appellant committed rape with her. She simply stated that the accused appellant set on her, touched her body in a wrong manner, bit on her abdomen as also on her hand. She stated that the accused-appellant opened drawstring of her salwar.
The question which is required to be considered is that whether the instant case is a one of rape having been attempted or that the accused-appellant had acted with the intention to commit rape but he was unsuccessful. In order to attract the offence of attempt to rape (under Section 376/511 I.P.C.), the prosecution ought to have brought evidence on record to show that the act of the accused-appellant was somewhat short of the (6 of 9) [CRLA-22/1995] offence of rape or that his action was intended to commit rape but he could not succeed. In this case, the prosecution has come out with the case that the accused-appellant had entered in the house, then opened drawstring of the prosecutrix salwar caught, then touched the body of the prosecutrix in a wrong manner and bit near the abdomen. There is no evidence on record to show that there was any overt act further to the one mentioned above by the accused-appellant so as to commit rape.
In my considered opinion, taking into consideration overall facts and circumstances of the case and the evidence on record, the case against the accused is one of outraging the modesty of a woman punishable for offence under Section 354 I.P.C. The provision 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."
The term outraging modesty of a woman has not been defined in the code. However, the Apex Court has, in number of cases, dealt with the ingredients of the same. In the case of Raju Pandurang Mahale vs. State of Maharashtra, (AIR 2004 Supreme Court 1677), the Apex Court has held with regard to outrage modesty of a female as under:-
"What constitutes an outrage to female modesty is nowhere defined. 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 (7 of 9) [CRLA-22/1995] woman is very relevant, but its absence is not always decisive. 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. As indicated above, the word 'modesty' is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word 'Modesty' in relation to woman as follows:
"Decorous in manner and conduct; not forward or lower; Shame-fast; Scrupulously Chast."
Therefore, an act of pulling a woman, removing her saree/salwar etc. would amount to outraging the modesty of a woman, coupled with the fact that by such an act the modesty is likely to be outraged, attracts the offence under Section 354 I.P.C. A case of similar situation had come before the High Court of Madhya Pradesh, in the matter of Ankariya vs. State of MP (1991 Cr.L.J. 751). In that case the evidence satisfactory established that the accused removed prosecutrix's cloth and set on her waist in the night of incident. It was held that the act of the accused would constitute not an attempt to commit rape but only preparation for the same. The offence against the accused was therefore said to be one under Section 354 I.P.C., assault or use of criminal force to woman with intent to outrage her modesty. The accused in that case was acquitted of the charge under Section 376/511 I.P.C. but instead convicted under Section 354 I.P.C.
(8 of 9) [CRLA-22/1995] In view of the aforesaid circumstances, the prosecution in the instant case has failed to prove its case for the offence under Section 376/511 I.P.C. However, the accused is guilty of the offence under Section 354 I.P.C.
As regards the sentence for the offence committed by the appellant, it is to be noted that the instant case relates to the year 1994 and nearly 23 years have already passed and at the time of incident the accused-appellant was 22 years old and the accused- appellant had remained in custody for three days from 10.08.1994 to 12.08.1994. The accused-appellant has specifically stated in his statement before the trial court that it was on account of a quarrel between him and the husband of the prosecutrix Sumitra, that this false case had been registered against him. Taking into consideration the overall facts and circumstances of the case and the nature of the offence having been committed by the accused- appellant, I am of the view that the ends of justice would meet if the appellant is sentenced to the period already undergone for the offence under Section 354 I.P.C.
In the result, the appeal is partly allowed. The accused- appellant is acquitted of the charges under Section 376/511 I.P.C. but instead he is convicted for the offence under Section 354 I.P.C and he is sentenced to the period already undergone by him along with fine of Rs.5,000/-. The conviction and sentence recorded by the trial court for the offence under Sections 448 and 324 does not call any interference and is maintained. However, the sentence awarded for the said offences is reduced to the period already undergone by the accused-appellant. The amount of fine shall be (9 of 9) [CRLA-22/1995] deposited in the trial Court within a period of 90 days from the date of this judgment. Upon depositing the amount of fine, the same shall be disbursed to the victim Sumitra. Record of the case be send back forthwith. The accused-appellant is on bail. His bail bonds stand discharged.
(MANOJ KUMAR GARG)J. Ms/-