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Ashok Verma vs State Of Chhattisgarh 35 … on 29 October, 2018

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 71 of 2010
Judgement reserved on 24-9-2018
Judgement delivered on 29-10-2018

• Ashok Verma aged about 22 years s/o. Gopilal Verma, r/o.
Nayadhaba, Thana Lalbag, District Rajnandgaon (CG).
—- Appellant.
Versus
• State of Chhattisgarh through Police Station Lalbag, District
Rajnandgaon. (CG).
—- Respondent
——————————————————————————————

For Appellant : Mr. Parag Kotecha, Advocate.

For Respondent/State : Mr. Ramakant Pandey, P.L.

(SB: Hon’ble Mr. Justice Ram Prasanna Sharma)
CAV Judgment

1) This appeal is preferred against the judgment of conviction and

order of sentence dated 5-1-2010 passed by Special Judge

(Scheduled Castes and Scheduled Tribes (Prevention of Atrocities )

Act, 1989 (for short, “the Act, 1989”), Rajnandgaon District

Rajnandgaon in Special Case No. 93 of 2008, wherein the said Court

convicted the accused/appellant under Sections 456 and 354 of the

IPC and sentenced him to undergo RI for six months and to pay fine

of Rs.100/- on each count, with default stipulations.

2) As per prosecution case, on 15-9-2008 at about 12.00 pm the

appellant entered into the house of prosecutrix (PW/1) and outraged

her modesty and injured her. The matter was reported and
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investigated. After completion of trial, the trial Court convicted and

sentenced the accused/appellant as mentioned above.

3) Learned counsel for the appellant submits as under:

I) There is serious contradiction in the statement of
the prosecution witnesses, therefore, benefit of
doubt ought to have been extended to the
appellant.

ii) As per evidence of prosecutrix, the appellant slept
with her daughter and it is out of imagination that
she will not resist or raise alarm during the course
of investigation.

Iii) Though prosecutrix deposed that she sustained
injury but the Doctor who examined the
prosecutrix did not find any injury on the body of
the prosecutrix, therefore, version of prosecution
is not dependable.

iv) The trial Court came to wrong conclusion which is
liable to be reversed.

4) Per contra, learned State counsel supporting the impugned

judgment has submitted that the judgment of the trial Court is strictly

in accordance with the law and well founded and there is no illegality

or infirmity in it warranting any interference by this Court invoking the

jurisdiction of appeal.

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5) I have heard learned counsel for the parties and perused the

record of the court below in which impugned judgment has been

passed.

6) In the present case prosecutrix is PW/1. Date of incident is 15-9-

2008 and the report was lodged on the next day i.e., on 16-9-2008 at

Police Station Adimjati Kalyan Vibhag in which name of the appellant

and his act are clearly mentioned.

7) To substantiate the charge, prosecution examined as many as

seven witnesses. To nullify the charge, defence side examined one

defence witness namely Purushottam Sahu (DW/1).

8) Prosecutrix PW/1 has supported the entire prosecution story and

as per version of this witness, she was sleeping at about 12.00 pm in

the night in her house where appellant entered into her house. When

she came out and tried to cry for help, appellant caught hold her and

dragged towards kitchen garden and pushed down in the said garden

and thereafter he caught her breast. When she tried to cry for help, he

shut her mouth. Version of this witness is subjected to searching cross

examination but nothing could be elicited in favour of defence. There is

no material contradiction or omission in the statement of this witness

and there is nothing on record to show that she had any grudge against

the appellant to falsely rope him in the charge. Version of this witness is

supported by version of PW/2 Tuleshwari Bai who saw that the
4

appellant caught her mother. PW/4 Ramdas supported the version of

this witness and as per version of this witness he saw the appellant

near the house of the prosecutrix where the prosecutrix informed him

that the appellant outraged her modesty. All these witnesses have been

subjected to searching cross examination but they are unshaken and

there is nothing on record to discard their testimonies.

9) One Purushottam Sahu was cited as DW/1. As per version of

this witness, prosecutrix was demanding money from the appellant, but

version of this witness is not sufficient to discard testimony of all the

prosecution witnesses, this witness has also established the presence

of the appellant on the spot, therefore, version of the prosecution side is

not under-stake by the evidence of this witness. There is no material

contradiction or omission on the part of the prosecution witnesses

regarding the fact of the case and ingredient of the offence. Minor

contradictions which do not go to the root of the case are insignificant

and same is liable to be ignored. Therefore, the argument advanced on

behalf of the appellant on account of contradictions and omissions is

without substance.

10) Now, the point for consideration is whether the act of the

accused/appellant falls within the mischief under Section 354 of the IPC.

As per section 354 of the IPC- Whoever
assaults or uses criminal force to any woman,
intending to outrage or knowing it to be likely that he
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will thereby outrage her modesty shall be punished.
The essential ingredients of offence under
Section 354, IPC are;-

(a) That the assault must be on a woman.

(b) That the accused must have used criminal
force on her.

(c) That the criminal force must have been used
on the woman intending thereby to outrage her
modesty.

11) In State of Punjab v Major Singh (AIR 1967 SC 63) a question

arose whether a minor female could be said to be possessed of

modesty which could be outraged. In answering the above question it

has been held by Their lordships that the essence of a woman’s

modesty is her sex and from her very birth she possesses the

modesty which is the attribute of her sex. From the test for

ascertaining whether modesty has been outraged is whether the

action of the offender is such as could be perceived as one which is

capable of shocking the sense of decency of a woman. Same view

was reiterated in Rupan Deol Bajaj (Mrs) and Anr. v. Kanwar Pal

Singh Gill Anr. 1995(6) SCC 194.

12) In the present case, evidence against the present appellant is

clinching in nature. Not only the prosecutrix, but her daughter and

other persons have also found the appellant on the spot. From the

evidence of the prosecutrix, it is established that the accused

knowingly outraged modesty of the prosecutrix by using criminal force
6

on her and the prosecutrix is firm in reporting the matter to the people

of locality and firm in lodging the FIR in Police Station on the next day

and looking to the statements of number of witnesses cited by the

prosecution, it is clear that criminal force is used by the appellant

against the prosecutrix and same amounts to outrage her modesty.

Criminal force is defined under Section 350 of IPC.

“Section 350 of the IPC read as under:-
Whoever intentionally uses force to any person,
without that person’s consent, in order to the
committing of any offence, or intending by the
use of such force to cause, or knowing it to be
likely that by the use of such force he will cause
injury, fear or annoyance to the person to whom
the force is used, is said to use criminal force to
that other”.

13) Looking to the evidence adduced by the prosecution it is

established that the accused/appellant knowingly outraged the

modesty of the prosecutrix by using criminal force upon her and the

same is offence under Section 354 of the IPC for which the trial Court

convicted the accused/appellant which is not liable to be interfered

with by this Court and the conviction of the appellant under Section

354 of the IPC is hereby affirmed. Again, lurking house-trespass by

night is an offence which is punishable under Section 456 of IPC.

Conviction of the appellant under Section 456 of IPC is also hereby

affirmed.

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14) Now the point for consideration is what sentence may be

awarded to the accused/appellant proportionate to the offence,

without considering its effect on the social order, the imposition of

sentence will be futile exercise. When the offence is involving moral

turpitude or moral delinquency which has great impact on social

order, and public interest, the same requires exemplary treatment.

Any liberal attitude by imposing meager sentence on account of lapse

of time in respect of such offences will be result-wise counter

productive in the long run and against societal interest. The trial Court

awarded sentence of six months that cannot be termed as harsh,

disproportionate or unreasonable and the same is not liable to be

interfered with by this Court.

15) Accordingly, the appeal being devoid of merit is liable to be and

is hereby dismissed. The appellant is reported to be on bail. His bail

bonds shall stand canceled. The trial Court will prepare supersession

warrant and issue warrant of arrest against the appellant. After his

arrest, he be sent to concerned jail to serve out the remaining part of

the jail sentence. The trial Court shall submit the compliance report

before this court on 31-1-2019.

Sd/-

(Ram Prasanna Sharma)
JUDGE
Raju

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