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
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For Appellant(s) : Mr. SG Ojha
For Respondent(s) : Mr. Rajesh Bhati, PP
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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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[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.
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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/-