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Sita Ram vs State Of Chhattisgarh 38 … on 29 October, 2018

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 192 of 2010
Judgement reserved on 4-9-2018
Judgement delivered on 29-10-2018

• Sita Ram S/o Loknath aged about 23 years, R/o. Village Chichiya
Police Station Deobhog, District Raipur (CG)
—- Appellant.
oVersus
• State of Chhattisgarh through Station House Officer, Police
Station, Debhog, District Raipur (CG).
—- Respondent
———————————————————————————————

For Appellant : Mr. Ajay Kumar Chandra Advocate.

For Respondent/State : Ms. K. Tripti Rao, Panel Lawyer

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

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

order of sentence dated 24-2-2010 passed by Special Judge

(Scheduled Castes and Scheduled Tribes (Prevention of Atrocities )Act,

1989 (for short, “the Act, 1989”), Raipur, District Raipur in Special Case

No. 72/2008, wherein the said Court convicted the accused/appellant

under Sections 341, 354 of the IPC and Section 3 (1)(xi) of the Act,

1989 and sentenced him to undergo SI for one month, RI for six

months and RI for six months and fine of Rs.200/- with default

stipulations.

2) As per prosecution case, on 30-3-2008 at about 6.00 pm,

prosecutrix is a student of Class 10 to whom the accused teased about
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her caste and when she went to Shiv temple with her friend namely

Vishakha for the purpose of worship, the appellant reached near

canal and while she was returning from the said temple, appellant

caught hold her and dragged her towards canal. Thereafter she

shouted and her friend ran away from the place of incident. The

matter was reported and 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) Prosecutrix has not submitted written report
before the Police Station and written report was
submitted by her maternal uncle;

ii) The trial Court has discarded the statement of
Vishakha PW/3 who was single eye-witness as
well as important witness.

Iii) As per version of prosecutrix she cut the hand of
the accused by teeth, but the Doctor has not
found any injury on the body of the accused.

iv) Present is a case of consent and story of crime
developed later on, therefore, finding of the trial
court is liable to be reversed.

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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.

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 30-3-

2008 and the report was lodged on the same day at Police Station

Deobhog as per Ex.P/12. Place of incident is village Chichiya which is

distance of 12 kms from Police Station Deobhog. Name of the

appellant is mentioned in FIR as culprit and his act is also mentioned.

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

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

defence witness namely Kaleshwar (DW/1).

8) As per version of prosecutrix, on the date of incident she went to

Shiv temple for worship with her friend Vishakha and while she was

returning from the said temple, appellant came there from behind,

caught hold her and dragged her towards canal. She tried to release

herself from the clutches of the appellant and make teeth bite on his

hand and cried. Thereafter, her father came there and the appellant fled
4

away from the spot. This witness has been subjected to searching cross

examination, but nothing could be elicited in favour of defence. Version

of prosecution is supported by version of PW/2 Narhari who is father of

the prosecutrix. Again her version is supported by the statement of

Tulsi Bai (PW/5). All the witnesses have been subjected to incisive

cross examination, but they are unshaken. Version of all these

witnesses is supported by FIR which is lodged on the date of incident in

which act of the appellant is clearly mentioned.

9) DW/1 Kaleshwar though deposed that on hearing the cries of

the prosecutrix, appellant reached there, but this witness has not

answered the question that at whose instance he came to quote for

deposition. The trial Court has noted demeanour of this witness and

opined that witness has made false statement. This court has no reason

to see the witness, therefore, demeanour recorded by the trial Court

cannot be substituted by some other way.

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
will thereby outrage her modesty shall be punished.
The essential ingredients of offence under
Section 354, IPC are;-

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(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.

10) 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”.

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, the prosecutrix is firm in reporting the matter

to the people of locality and firm in lodging the FIR in Police Station
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on the same 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 act of the appellant

amounts to outrage her modesty.

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 is hereby

affirmed. Again, the appellant caught the prosecutrix when she was

moving towards her home and restraining a person from free

movement is mischief of wrongful restraint which is punishable under

Section 341 of IPC. Conviction of the appellant under Section 341 of

IPC is also hereby affirmed.

14) From the evidence of PW/1 prosecutrix, PW/2 Narhari and PW/3

Vishakha, PW/4 Jaising Sandiyal, PW/5 Tulasi Bai and certificate

(Article 1-C), it is established that the appellant is Gond by caste

which is included in Scheduled Tribe and using criminal force to

outrage of the prosecutrix (member of Schedule Tribe) is also

punishable under Section 3 (1)(xi)of the Act, 1989 as he is not a

member of scheduled tribe/caste for which the trial Court convicted
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the appellant as mentioned above and this court has no reason to

record contrary finding. Conviction of the appellant under Section 3

(1)(xi) of the Act, 1989 is also hereby affirmed.

15) Heard on the point of sentence.

The trial Court has awarded minimum sentence for offence

under Section 3(1)(xi) of the Act, 1989 and less than minimum

sentence cannot be awarded. The trial Court has also directed that all

the sentences shall run concurrently which is not liable to be

interfered with by this Court.

16) 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 24-1-2019.

Sd/-

(Ram Prasanna Sharma)
JUDGE

Raju

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