HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 46

Case :- CRIMINAL MISC. WRIT PETITION No. – 8207 of 2011

Petitioner :- Amit Kumar @ Mittal
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Amit Daga
Respondent Counsel :- Govt. Advocate

Hon’ble Amar Saran,J.
Hon’ble S.C. Agarwal,J.
Heard learned counsel for the petitioner and the learned A.G.A.
This criminal writ petition has been filed for quashing of the FIR of case crime No. 84 of 2011, under Section 452, 323, 354 and 506 IPC, Police Station Phugana, district Muzaffarnagar, which was lodged against the petitioner Amit Kumar alias Mittal on 23.4.2011 at 9.30 p.m. by the victim, respondent no.4.
Briefly the allegations in the FIR were that on 23.4.2011 at 4.00 p.m., the victim was all alone in her house. All of a sudden, the petitioner Amit Kumar alias Mittal entered the house and when she asked Amit why he had entered her house, he whipped out a country made pistol with a long barrel which he placed on her temple and tried to force her to comply to his wishes. Then he tried to outrage her modesty. The victim told him that he could take her life but she would not do his bidding. Then on gun point the petitioner used criminal force to outrage her modesty. Inspite of her cries the petitioner began to molset her by applying his mouth and teeth to her body. On her further alarm, Chainpal, Maheshvir, Jagbir and other neighbours arrived there and saved the victim from being raped.
The victim was taken for medical examination by Head Constable Vinod Kumar to C.H.C. Kandhala, Muzaffarnagar, where she was medically examined by Dr. Ved Murti on the same night, i.e on 23.4.2011 at 10.35 p.m. The Doctor found the following injuries on her person:
1.Red contusion size 3 cm x 2 cm on right side of forehead just above the right eye brow.
2.Multiple abrasion on left side upper part of chest, size of largest one is 2 cm x 1 cm and size of smallest one is 1 cm x 7 cm, oozing of blood present.
3.A linear abrasion 3 cm in length on posterior lateral aspect of upper part of left forearm, oozing of blood present.
4.A linear abrasion 1 cm in length on antero lateral aspect of upper part of left forearm . Red colour present.
5.A red contusion size 6 cm x 1 cm on left scapular region obliquely placed.
6.A red contusion size 7 cm x 1 cm on left side of back obliquely placed.
The injuries were fresh and simple in nature and were caused by some blunt hard object or by friction.
The defence of the petitioner was that he was the next door neighbour of the informant-respondent. The husband of the informant had taken a loan of Rs. 16,000/ from the petitioner with an assurance that he would repay the same within a period of fifteen days. When the husband of the informant defaulted the petitioner demanded the same. The husband of the informant called the petitioner to the village tank on 23.4.2011 at 2.30 P.M where he along with his associates assaulted the petitioner. The petitioner even got himself medically examined at C.H.C. Shamli, Muzaffarnagar on 25.4.2011 at 6.25 P.M. The medical report showed that the petitioner was brought by self for his medical examination. The doctor noted a lacerated wound size .8 x .4 cm x scalp deep on left side of skull 8 cm above to left ear and there were other contusions, abraded swelling and complaints of pain on elbow joint, wrist joint, and abdomen.The injuries were simple and their duration was within 1 to 2 days.
It was contended by the learned counsel for the petitioner that the petitioner was a private student of B.A.-III and his final examinations were to be concluded on 14.5.2011. It was further submitted that the offences other than those under Sections 452 and 506 IPC for which the petitioner had been challaned (i.e. those under sections 354 and 323 IPC), were bailable in nature.
Significantly, no FIR was lodged from the side of the petitioner, and even in his application to the S.S.P, Muzaffarnagar dated 28.4.2011 giving out his version that he was called to the water tank in the village on 23.4.11 at 2.30 p.m. and assaulted on his demand for return of the Rs. 16000 owed by the informant’s husband to him, his explanation for the delayed filing of the application was that there were talks of compromise between the parties, but it was claimed that in the meantime the husband of the informant had quietly got a fake medical examination of the informant done, and lodged a false report. Talk of compromise does not appear to be a reasonable explanation for the delayed medical examination of the petitioner on 25.4.2011 when he had allegedly received the injuries on 23.4.2011 or his belated application to the SSP on 28.4.2011 (if indeed any such application has been filed), especially as the informant had been medically examined and the report lodged on the same day itself, i.e. on 23.4.2011, which fact establishes the genuiness of the informant’s case and a refutation of the petitioner’s contention that the informant’s injuries or report were concocted.
Furthermore according to the petitioner’s medical report dated 25.4.2011 the injuries were caused one or two days earlier. He was brought by self for medical examination. Therefore it could not be ruled out that either the informant’s injury report was manipulated or that he was subsequently belaboured after he had carried out the heinous act of molestation against the informant in her house. Significantly no case has been registered on the petitioner’s application against the informant’s husband.
In any case the presence of injuries on the petitioner do not give any reason to doubt the claim of the informant who was a woman regarding her assault and molestation by the petitioner for the purpose of satisfying his sexual lust. In our view, it is not likely that any women would falsely make such allegations of her modesty being outraged as a result of the criminal assault by the petitioner, as a social stigma is attached to a victim of molestation, and an FIR with these allegations is usually lodged with great reluctance as it adversely reflects on the honour and dignity of the woman herself who is the victim of a sexual crime. The prompt medical examination and report by the informant also corroborate her allegations of being molested by the petitioner in her house, after threats were extended to her on gun point.
Having given our careful consideration to the writ petition and the annexures filed therein as well as the contentions of the learned counsel for the petitioner, we are of the view that a cognizable offence is clearly disclosed against the petitioner, hence no ground exists either for quashing the FIR or for staying the arrest of the petitioner. The observations hereinabove have been made in view of the counsel’s contentions, and the investigating agency and trial court are expected to investigate and try the case as per their own discretion.
Before parting with the matter, we would like to point out that because of the mild penalty of sentence up to two years prescribed for an offence under section 354 IPC and the fact that the offence is bailable, such crimes of sexual violence against women are daily on the increase, although they are usually unreported. No woman going to college or for meeting friends or who is simply walking on the streets or travelling by a public transport vehicle for going to some place or as in the present case, even when she is present in her house, is completely safe. Victims of such sexual crimes suffer great shame and humiliation.
Likewise, little children are increasingly becoming victims of such child abusers and molesters who freely roam about.
Because of the attending social stigma and personal and family dishonour the aggrieved female is usually reluctant to lodge any complaint or FIR when she is made a victim of this sexual crime. In the rare case when she takes recourse to the law enforcing agency, an absolute mockery of justice results when the molester is let out on bail at the police station itself, as section 354 IPC is a bailable offence and he becomes free to again stalk and terrorize the victim or to commit another criminal assault on her for outraging her modesty.
Such a lenient punishment appears to have been prescribed for the crime under section 354 IPC because of a patriarchal mind set which does not accord equal status with a man to a woman, and is indifferent to the psychological trauma that a woman must undergo when criminal force is applied to her for outraging her modesty. As a matter of fact if a woman or girl child is viciously molested as in the present case, it can be a highly traumatic experience which can leave a permanent psychological scar on the woman or girl child as she suffers humiliation, degradation and violation in the same manner similar to that she would suffer if she were an actual victim of a rape. It is thus a crime similar to the crime of rape, and whilst it has been argued that such crimes affect the sexual integrity and autonomy of women and children and are violative of the right to life guaranteed under Art. 21 of the Constitution of India, but the argument to this extent has not been accepted in Sakshi v Union of India, AIR 2004 SC 3566 which has held that where there is no penile penetration, no offence of rape under section 375 IPC is disclosed. But Sakshi too has shown considerable concern for the woman or child victim of sexual violence, and has held in paragraph 34 that the provisions of sub-section (2) of S. 327, Cr. P.C. prescribing in camera trials shall in addition to the offences mentioned in the sub-section (i.e. offences under section 376, 376 A, 376 B, 376 C,and 376 D IPC) also apply in inquiry or trials of offences under Ss. 354 and 377, I.P.C. In holding a trial of child sex abuse or rape a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused, the questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident, should be given in writing to the Presiding Officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing, the victim of child abuse or rape, while giving testimony in Court, should be allowed sufficient breaks as and when required. Sakshi has also emphasized in paragraph 35 that as the cases of child abuse and rape are increasing at an alarming speed appropriate legislation by Parliament in this regard is, urgently required.
Psychologically where a woman or child is subjected to criminal force or assault for outraging her modesty, the experience was considered equally traumatizing as an actual act of rape of the woman. In this context paragraph 6 of Sakshi has appositely referred to the following passage from Susan Brownmiller’s important book, “Against our Will.”
“…… in rape …….. the intent is not merely to “take”, but to humiliate and degrade ……. Sexual assault in our day and age is hardly restricted to forced genital copulation, nor is it exclusively a male on female offence. Tradition and biologic opportunity have rendered vaginal rape a particular political crime with a particular political history, but the invasition may occur through the mouth or the rectum as well. And while the penis may remain the rapists, favourite weapon, his prime instrument of vengeance ……… it is not in fact his only tool. Sticks, bottles and even fingers are often substituted for the “natural ” thing. And as men may invade women through other orifices, so too, do they invade other men. Who is to say that the sexual humiliation suffered through forced oral or rectal penetration is a lesser violation of the personal, private inner space a lesser injury to mind, spirit and sense of self?” (Susan Brownmiller, Against Our Will 1986). (Underlining by us)
State of Punjab v Gurmit, AIR 1996 SC 1393 has also shown great concern for the honour of women and the psycholgical harm that can be caused by such crimes. It has mandated holding in camera trials in all cases covered under section 327 (2) Cr.P.C. It has further criticized the tendency to require corroboration in all cases of sexual offences, and has regarded such witnesses as bearing the character of injured witnesses, and it has oberved that : “It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice.”
Paragraph 20 in State of Punjab v Gurmit reads: Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex of crimes. We must remembers that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration, required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.
There is a beautiful and poignant passage by Justice R.S. Bachawat in State of Punjab v Major Singh, AIR 1967 SC 63 at paragraphs 16 and 17 reversing the Full Bench decision of the Bombay High Court holding an accused not guilty of an offence under section 354 IPC who had inserted his finger and injured a seven and a half month old child’s vagina on the ground that the child could not have been conscious of the nature of the act, hence her modesty could not have been outraged, by holding that even for a little child her modesty was an attibute of her sex. The passage reads:
16. I think that 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 S. 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.
17. A female of tender age stands on as 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.
Article 15(3) of the Constitution of India speaks of allowing the State to make special provisions for women and children.
The Convention on the Elimination Of All Forms Of Discrimination Against Women, 1979, which was ratified by India in August 1993 and the U.N. Convention on the Rights Of The Child, 1989 which was ratified by India on 11.12.93, especially Articles 17 (3) and 19 of the latter speaks of the need to ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well being and physical and mental health, and for developing appropriate guidelines for the protection of the child from information and material injurious to his or her well being. Also States Parties are to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian (s) of any other persons who has the care of the child.
A plain reading of the First Schedule to the Code of Criminal Procedure reveals several such anomalies, and less grave offences appear to have been made non-bailable whereas section 354 IPC is bailable. Thus, section 324 IPC which only speaks of voluntarily causing simple hurt by a dangerous weapon or means, and is triable by a Magistrate and does not carry the psychological harm associated with a criminal assault for outraging a woman’s modesty has been made non-bailable by Act 25 of 2005. House trespass with preparation for causing hurt, assault etc. even when no hurt is actually caused punishable under section 452 IPC and triable by a Magistrate is a non-bailable offence. An offence of mere criminal intimidation without any actual assault punishable under section 506 IPC has been made cognizable and non-bailable in the State of U.P., vide notification dated 31.7.89.
It needs to be pointed out that in in the State of Madhya Pradesh, by Act 14 of 2004, section 354 A IPC has been introduced which speaks of an assault or use of criminal force to a woman with intent to disrobe her. The offence has been made punishable with imprisonment for not less than one year but which may extend to ten years and fine. The First Schedule to the Code of Criminal Procedure has also been amended in Madhya Pradesh and the offence has been made non-bailable and triable by a Court of Session.
Also the State of Andhra Pradhesh by Act No. 6 of of 1991 has made section 354 IPC punishable with a minimum sentence of five years, which could extend to seven years and fine. For adequate reasons however the Court could impose a lesser sentence, but which must not be less than two years. By Act 3 of 1992, the First Schedule to the Cr.P.C has been amended in Andhra Pradesh and the offence has been made non-bailable and triable by a Court of Session. The government of Orissa by Act 6 of 1995 has also made the offence under section 354 IPC non-bailable.
Looking to the rampant and daily increasing prevalence of such crimes of sexual violence in the State of U.P., in Delhi and in other places we think that it is high time that the State of U.P. and even the Union of India should become sensitive to this grave issue, and consider imposing stringent laws for putting a check on such crimes of sexual violence against women and children. We therefore recommend that the State of U.P. and the Union of India consider amending the provisions of section 354 IPC and the First Schedule to the Code of Criminal Procedure by prescribing a higher sentence for the offence and for making it non-bailable and triable by a Court of Session.
Copy of this order may be forwarded to the Law Commissions, of U.P and the Centre, and also to the Law( Secretary) U.P. and the Union of India within 15 days for appropriate action and recommendations.
With these observations, the writ petition is dismissed.

Order Date :- 9.5.2011
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