IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 27TH DAY OF JULY, 2012 BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA CRIMINAL REVISION PETITION NO.2086/2005 BETWEEN:
Sannaiah alias Basavaraju,
Aged about 35 years,
Mysore Taluk. ... PETITIONER (By Sri P. Nataraju, Adv.)
State of Karnataka,
By Jayapura Police,
Represented by State Public Prosecutor, High Court Building,
Bangalore. ...RESPONDENT (By Sri Vijayakumar Majage, HCGP)
This Crl.R.P. is filed under Section 397(1) Cr.P.C. praying to set aside the judgment and order passed by the P.O., Fast Track Court-III, Mysore, in Crl.A.No.93/2002 dated 01.10.2005 and the judgment and order passed by the JMFC-II Court, Mysore, in C.C.No.1944/1999 dated 30.5.2002 and acquit the petitioner. This Crl.R.P. coming on for hearing this day, the Court made the following:
Petitioner faced trial for alleged commission of offences punishable under Ss.354 and 448 of Indian Penal Code, 1860. He was convicted and sentenced to pay fine of `500/-, in default, to undergo simple imprisonment for 15 days for the offence under S.448 IPC and was sentenced to undergo simple imprisonment for 3 months and pay fine of `500/-, in default, to undergo S.I. for 15 days for the offence under S.354 IPC. Feeling aggrieved, accused has filed this criminal revision petition.
2. Prosecution case which led to trial is as follows:
On 24.04.1999, at 1.00 p.m., at Mandanahalli Village, while CW1 - complainant was wearing clothes after taking bath, accused trespassed into her house, caught hold of her with intent to outrage her modesty and when she made hue and cry, he ran away and thus committed the offences under S.448 and 354 of IPC. 3
3. CW-1 / PW-1 lodged complaint - Ex.P1. Case was registered vide Ex.P6 for offences under Ss.448 and 354 of IPC. After investigation, charge-sheet was lodged against the accused. During trial, 10 witnesses were examined and Exs.P1 to P6 were marked to prove the prosecution case. Accused was examined under S.313 Cr.P.C. Defence is one of denial. No defence evidence was adduced. On consideration of the evidence, learned Magistrate found the accused guilty and convicted and sentenced him as aforesaid. Appeal filed by the accused was dismissed on 01.10.2005.
4. Sri P. Nataraju, learned Advocate, firstly, contended that the Courts below have erred in convicting the petitioner, by relying upon the interested, untrustworthy and unreliable testimony of prosecution witnesses. He submitted that the evidence brought on record by the prosecution when taken on its face value, does not make out a case to convict the petitioner for the alleged offences. Secondly, the judgment of conviction 4
has been passed on assumptions and presumptions and not on the basis of correct appreciation of evidence. Thirdly, the prosecution having failed to prove its case beyond all reasonable doubts, petitioner is entitled to the benefit of doubt.
5. Sri Vijayakumar Majage, learned High Court Government Pleader, on the other hand, submitted that evidence of PW-1/ victim and that of PWs 3 to 7, the eye- witnesses and the doctor, examined as PW-9, through whom Ex.P5, the wound certificate was marked, clearly makes out case of the prosecution beyond all reasonable doubts and hence, the Courts below are justified in convicting the accused and in sentencing him.
6. Keeping in view the rival contentions and the record of the case, which I have perused, point for consideration is, whether the Courts below are justified in convicting the petitioner for offences under Ss.448 and 354 IPC?
7. Prosecution version is that, at about 1.00 p.m., on 24.04.1999, accused entered into the house of PW-1, when she was wearing clothes after taking bath, caught hold her with intent to outrage her modesty. PW-1 is a married woman. Complaint vide Ex.P1 was lodged at 3.30 p.m., on the same day.
8. Section 354 IPC 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."
9. So far as the offence under Section 354 IPC is concerned, intention to outrage the modesty of a woman or knowledge that the act of the accused would result in outraging her modesty is the gravamen of the offence. The ultimate test for ascertaining whether the modesty of a woman has been outraged, assaulted or insulted is that, the action of the offender should be such that, it may be 6
perceived as one which is capable of shocking the sense of decency of a woman.
10. In order to constitute offence under S.354 IPC, mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. In STATE OF PUNJAB VS. MAJOR SINGH - 1967 Cri L.J. 1, the Apex Court has held that, there is no abstract conception of modesty that can apply to all cases.
11. Court while dealing with a case alleging outrage of modesty of a woman under S.354 IPC, has to find out, whether the following ingredients have been made out:
(a) That the person assaulted is a woman; (b) Accused must have used criminal force on her; and (c) The use of criminal force on the woman was to outrage her modesty.
12. In the case of AMAN KUMAR AND ANOTHER Vs. STATE OF HARYANA - (2004) 4 SCC 389, with regard to 7
the essential ingredients of the offence punishable under S.354 IPC, it has been held as follows: " 13. ... Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. 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 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 dress 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 Oxfrod Dictionary (3rd Edn.) defines the word "modesty" in relation to a woman as follows:
"Decorous in manner and conduct; not forward or lewd; Shamefast; Scrupulously chaste."
14. Modesty can be described as the quality of being modest, and in relation to a woman, "womanly propriety of behaviour, scrupulous chastity of thought, speech and 8
conduct". It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patteson in R.v. James Lloyd (173 ER 141) in order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her."
13. The victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight. In this case, the victim lodged complaint vide Ex.P1 and has deposed as PW-1. PW-2 is the husband of the victim. PWs 3 to 7 are the eye witnesses. PW-9 is the doctor who issued Ex.P5 - wound certificate. PW-10 is the investigating Officer.
14. Ss.441 and 448 IPC read as under: 9
S.441. Criminal trespass.- whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
S.448. Punishment for house-trespass.- Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
15. S.448 IPC provides for punishment relating to house trespass. To convict a person under S.448 IPC, it must be shown that the intention of the accused was to commit an offence or to intimidate, insult or annoy the complainant. There must be unlawful entry and there must be proof of one or the other of the intentions mentioned in S.441 of IPC. Evidence brought on record by the prosecution through PWs 1 to 7 and Ex.P4, the 10
demand register extract, clearly establishes the commission of offence by the accused under S.448 of IPC. The Trial Court and Appellate Court, after detailed consideration of the evidence, have concurrently found the accused guilty.
16. On evaluation of the evidence brought on record of the prosecution, petitioner is clearly guilty of the offences under Ss.354 and 448 IPC. The Courts below Annexure-Annexure-Annexure-Annexure-`have not committed any error or illegality in holding the accused guilty and convicting him for the said offences. The sentence imposed is not harsh.
In the result, petition being devoid of merit, is dismissed.