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Mohammad Rafique vs State Of Chhattisgarh 14 … on 30 October, 2018

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HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 325 of 2010

Reserved on : 06.10.2018

Delivered on : 30.10.2018

Mohammad Rafique, aged about 50 years, S/o Late Abdul Kadir,
Occupation General Store, R/o Bakharupara, Narayanpur, District-
Bastar (C.G.)
—- Appellant
Versus
State of Chhattisgarh, Through: Police Station Chhote Donger,
District- Bastar (C.G.)
—- Respondent
——————————————————————————————-

For Appellant : Mr. Vishnu Koshta, Advocate.
For State/respondent : Mr. Lav Sharma, Panel Lawyer.

——————————————————————————————-

Hon’ble Shri Justice Ram Prasanna Sharma

CAV JUDGMENT

1. This appeal is preferred under Section 374(2) of the Code of

Criminal Procedure, 1973 against judgment dated 08.04.2010

passed by Sessions Judge (Atrocities), Bastar at Jagdalpur

(C.G.) in Session Trial No. 85/2007, wherein the said court

convicted the appellant for commission of offence under

Sections 448 354 of IPC and Section 3(1)(xi) of Schedule

Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989

(for short “the Act, 1989”) and sentenced to R.I. for 6 month

and fine of Rs. 200/-, R.I. for 1 year and fine of Rs. 500/-

R.I. for 1 year and fine of Rs. 500/- respectively with further

default stipulations.

2. In the present case, prosecutrix are PW-3 PW-4. As per

case of the prosecution, both are member of Schedule Tribe
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and were living for study at Kanya Ashram, Dhodhai which is

situated within police station- Chhote Donger of Bastar

District. It is alleged that on 13.10.2006 at mid-night, when

they were sleeping, someone knocked the door. The In-

charge of the Ashram opened the door and found that 4-5

persons entered in the Ashram and they entered into room of

both the prosecutrix and took them in kitchen. They started to

open button of her shirt and used criminal force on their body.

The matter was reported and after completion of trial, the trial

court convicted the appellant as mentioned above.

3. Learned counsel for the appellant submits that as per

evidence of Sunil Kumar Vishwas (PW-1), it is not established

that the appellant committed any offence which is charged

against him. Statement of Raimati (PW-4), Karun Kumar Jain

(PW-6) is overlooked by the trial court and they do not support

the prosecution case. Evidence of prosecutrix (PW-3) is also

not reliable looking to the statement of Smt. Puple Nureti (PW-

5), therefore, finding recorded by the trial court is not

sustainable.

4. On the other hand, learned State counsel submits that the

finding arrived at by the trial court is based on proper

marshaling of evidence and the same does not warrant any

interference of this Court with invoking jurisdiction of the

appeal.

5. Prosecutrix (PW-3) lodged FIR on 16.10.2006 in which name

of the appellant is mentioned as culprit and act of the
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appellant regarding outraging her modesty is also mentioned.

This witness has deposed before the trial court that he

opened button of her shirt and touched her breast. Version of

this witness was subjected to searching cross-examination,

but nothing could be elicited in favour of the defence. This

witness is firm in her statement from date of incident and she

is stable in it till date before the court. It is settled law that for

proving any guilt, no minimum number of witnesses shall be

required as per Section 134 of the Indian Evidence Act, 1872.

It has enshrined the well recognized maxim that evidence has

to be weighed and not counted. As the witness is stable for

the charge since date of incident, there is nothing to discard

her testimony and she is fully reliable witness.

6. Now, the point for consideration in whether the act of the

appellant falls within the mischief under Section 354 of IPC.

As per Section 354 of IPC- 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. 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.
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7. In the matter of State of Punjab Vs. Major Singh reported in

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 lordship 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 the matter of Rupan Deol Bajaj (Mrs.)

and Anr. Vs. Kanwar Pal Singh Gill Anr., reported in 1995

(6) SCC 194.

8. Looking to the evidence of the prosecutrix (PW-3), it is

established that the appellant entered into Kanya Ashram

which was established for students studying in the school and

outraged her modesty by using criminal force. Act of the

appellant clearly falls within mischief of Section 354 of IPC.

Again, he entered into said Ashram with intent to commit

offence against the prosecutrix, his act falls for the offence

punishable under Section 448 of IPC.

9. There is no material contradiction in the statement of the

prosecutrix which go to the route of the case. Any minor

contradiction which do not go to the route of the case is

insignificant and on the basis of any minor contradiction, case

of the prosecutrix cannot be doubted with, therefore,
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argument advanced on behalf of the appellant is not

acceptable.

10. The case laws cited on behalf of the appellant in the matter of

Udai Singh Vs. State of C.G. reported in 2011 (3) CGLJ 455,

Jhamman alias Jayman Vs. State of C.G. reported in 2011

(3) CGLJ 458, Surendra Agrawal Vs. State of Chhattisgarh

reported in 2017 SCC OnLine Chh 243 Tribhuwan

Ramadhar Kashyap Vs. State of Madhya Pradesh (now

Chhattisgarh), reported in ILR 2017 Chh 2283 decided by

this Court in CRA No. 1420/2000, are distinguishable in the

facts and circumstances of the case, because all the cases

are not related to the offence against student residing at

Ashram. In the present case, offence is committed after

entering into Ashram which is serious in nature because the

same is threat to the institution at large, therefore, citations

have no help to the present appellant.

11. So far as offence under Section 3(1)(xi) of the Act, 1989 is

concerned, no one examined on behalf of the prosecution that

prosecutrix is member of Schedule Tribe. Unless she is

member of Schedule Tribe, offence under Section 3(1)(xi) of

the Act, 1989 is not established. Conviction of offence under

Section 3(1)(xi) of the Act, 1989 is set aside and he is

acquitted of the said charge.

12. Conviction of the appellant for commission of offence under

Sections 354 448 of IPC is not liable to the interfered with

and the same is hereby affirmed.

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13. The trial court awarded sentence of 1 year for commission of

offence under Section 354 of IPC and 6 months for

commission of offence under Section 448 of IPC. Looking to

the fact that the appellant has committed crime against the

institution, it cannot be said that the sentence awarded by the

trial court is harsh, disproportionate or unreasonable and the

same is not liable to be interfered with. The sentence part is

also not liable to be interfered with. Accordingly, the appeal is

hereby dismissed.

14. The appellant is reported to be on bail and his bail bonds are

cancelled. The trial court will prepare super-session warrant

and issue warrant of arrest against the appellant and after his

arrest, he be sent back to the concerned jail for serving out

the remaining part of the jail sentence. The trial court shall

submit compliance report on or before 29th January, 2019.

Sd/-

(Ram Prasanna Sharma)
Judge

Arun

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