Chandra Bhan vs State Of Rajasthan on 31 August, 2017

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
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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
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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
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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
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(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
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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
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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.

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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
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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/-

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