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-
State of Chhattisgarh, Through: Police Station Chhote Donger,
District- Bastar (C.G.)
For Appellant : Mr. Vishnu Koshta, Advocate.
For State/respondent : Mr. Lav Sharma, Panel Lawyer.
Hon’ble Shri Justice Ram Prasanna Sharma
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
2. In the present case, prosecutrix are PW-3 PW-4. As per
case of the prosecution, both are member of Schedule Tribe
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
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
5. Prosecutrix (PW-3) lodged FIR on 16.10.2006 in which name
of the appellant is mentioned as culprit and act of the
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.
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,
argument advanced on behalf of the appellant is not
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.
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
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.
(Ram Prasanna Sharma)