Penal Code, 1860 – Ss. 354, 375 & 376 – Rape – ‘modesty’ – Consent of Victim – Essential ingredients of – It is to be remembered that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process – It is not the case of the accused that there was the consent of victim – Moreover, the girl was below 16 years, hence the consent was immaterial and accused was rightly convicted by the trial court.
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
CRIMINAL APPEAL No. – 285 of 2011
Appellant :- Jag Mohan S/O Ram Lal
Respondent :- State Of U.P.
Counsel for Appellant :- Manoj Kumar Dixit,Badrus Sahar, Bhanu Pratap Singh
Counsel for Respondent :- G.A., Mohd. Asif Khan
Hon’ble Dr. Vijay Laxmi,J.
Heard Shri Bhanu Pratap Singh, learned counsel for the appellant and Shri Mohd. Asif Khan, learned A.G.A. for the State and gone through the evidence on record.
2. The challenge in this appeal is to the judgment rendered by Additional Sessions Judge/FTC-9, Lucknow where the appellant was found guilty of offence punishable under
Sections 354 and 376of the Indian Penal Code, 1860
( in short ‘the IPC’).
3. Prosecution version as unfolded during trial is as follows:-
The victim (P.W.-1) had gone in the field for reaping Junahari (grass) at about 2.00 PM on 22.10.2009 where the appellant came in the field, pulled her down and committed rape on her. On her outcry, the complainant, Hari Ram Yadav, the brother of the victim rushed the scene of the occurrence along with Harish Chandra, son of Bhagauti Yadav, of his village and had seen the appellant running away therefrom.
4. Learned Sessions Judge after careful appraisal of the evidence on record found that the appellant had committed the offence of outraging the modesty of women and rape and sentenced him to suffer rigorous imprisonment for a period of 7 years and fine of Rs.2000/- for the offence under Section 376 I.P.C and rigorous imprisonment for six months and fine of Rs. 100/- for offence under Section 354 IPC.
5. On completion of investigation, the charge sheet was submitted under Sections 354 and 376IPC. The accused faced trial. In order to establish accusation, the prosecution examined 7 witnesses. The accused pleaded innocence and false implication. According to him, a false case was posed against him due to enmity. The trial court found evidence of the victim, the complainant and Harish Chandra to be cogent and credible and accordingly as noted above, it found the accused guilty.
6. In support of the appeal, learned counsel for the appellant submitted that the trial court failed to take notice of first FIR of 22.10.2009 which was lodged under Section 354 IPC and inconsistencies in the evidence of the witnesses and in any event no case under Section 376 IPC is made out. Strong reliance is placed on the first FIR dated 22.10.2009 and the medical evidence to contend that at the most the offence can be in the terms of Section 354 IPC.
7. Per contra, learned counsel for the respondent-State submitted that the trial court has analyzed the evidence in great detail and had rightly concluded that offence punishable under Sections 354and 376 IPC was fully proved.The first FIR was lodged by the complainant, the brother of the victim on 22.10.2009 making allegation against the accused of using criminal force to outrage modesty of the victim. According to Learned AGA, the prosecution has fully explained the circumstances under which the complainant was misguided and compelled by the police of the PS concerned to lodge the FIR on 22.10.2009 only under Section 354 IPC in place of Section 376IPC. It was fully proved by the complainant, P.W.-2, the victim P.W.-1 and Harish Chandra P.W.-3 that they were compelled by the Darogaji at police station on 22.10.2009 to lodge a report under Section 354 IPC in place of Section 376 IPC who told them that otherwise it would cast stigma on her sister and will create obstruction in her marriage. When no action was taken by the police for two days, the application was given by the complainant to the SSP stating actual facts about the commission of rape on the sister of the complainant. The police of the Thana concerned did not permit the complainant to write actual facts in the first FIR on 22.10.2009. Thus, the FIR was made by the complainant to the SSP on 24.10.2009 and the action was taken by the police thereafter. It is argued by learned AGA that there is nothing on record to disbelieve this version of the prosecution.
8. Coming to the question as to whether Sections 354 and 376 of the IPC have any application, it is to be noted that the provision of Section 354 makes penal assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of the offence under Section 354 IPC are as under:
(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.
What constitutes an outrage to female modesty is nowhere defined in IPC. 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, 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. The Shorter Oxford Dictionary (Third Edn.) defines the word ‘modesty’ in relation to woman as follows: