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IN THE COURT OF SPECIAL COURT FOR TRIAL OF CASES RELATING TO
ATROCITIES AGAINST WOMEN-CUM-IX-ADDL.DISTIRCT & SESSIONS COURT ::
MEDAK AT SANGAREDDY
PRESENT: Smt. J. Maithreyi II Additional District & Sessions Judge (FTC) FAC IX Additional District & Sessions Judge Medak at Sangareddy
THURSDAY, THIS THE 12th DAY OF AUGUST, 2021
S.C. No. 06 of 2018
CRIME No. 49 of 2017
Name of the complainantThe State of Telangana through, PS. Kulcharam Description of the accusedSadala Praveen, S/o. Shekulu, Aged: 21 years, Caste: Mudiraj, Occ: Hamali, R/o: Appajipally (V), Kulcharam Mandal. Charge/sUnder Sections 376 R/w.511 of IPC. Plead of accusedAccused pleaded not guilty Finding of the judgeAccused found not guilty for the offence punishable under section 376 R/w. 511 of IPC. Accused is found guilty for the offence punishable under section 354 of IPC Sentence or orderIn the result, the accused is found not guilty for the offence punishable under Section 376 R/w. 511 of IPC. The accused is found guilty for the offence punishable under section 354 of IPC and accordingly, he is convicted under section 235 (2) of Cr.P.C., for the said offence. He is sentenced to undergo rigorous imprisonment for a period of one (01) year and fine of Rs.1,000/- (Rupees One Thousand only). In default of payment of fine, he shall undergo simple imprisonment for a period of two (02) months for the offence punishable under section 354 of IPC. The accused is informed of his right to file appeal against the judgment of this Court. The accused is also informed of his right to free legal aid for filing appeal in the event if, he does not have means to file appeal. The period of detention undergone by the accused in judicial custody shall be set off against the terms of imprisonment imposed on him and the accused shall undergo the remaining sentence as provided under section 428 of Cr.P.C. (The accused was in jail from 08.09.2017 to 15.09.2017). Prosecution conducted bySri. G. Prabhu Danyam, Addl. Public Prosecutor Accused defended bySri. Rajaram, Advocate.
This case is coming on before me for final hearing in the presence of Sri. G. Prabhu Danyam, Public Prosecutor for the state and Sri Rajaram, Advocate for Accused, upon perusing the material on record and upon hearing the arguments the court delivered the following:-
:: J U D G M E N T ::
The Inspector of police, PS Kulcharam filed charge sheet against the accused 2 of 20 SC No. 06 of 2018 for the offence punishable under Section 376 R/w. 511 of IPC.
2.The brief facts of the case as per charge sheet is that on 05.08.2017 at 2130 hours, PW.1/victim came to police station and lodged a report stating that on 02.08.2017 after noon at about 02.30 PM to 3.00 PM while she was proceeding to the river (Vagu) near to their house, the accused came to her noticing that nobody was there in the vicinity, tried to commit rape on her, due to which she made hue and cries and return to her house. After arrival of her husband she informed the matter to her husband. Hence, she lodged a report.
3.Basing on this report, PW.8/D.Vittal, Head Constable registered a case in Cr.
No. 49/2017 under section 376 r/w 511 of IPC and during the course of investigation, he examined and recorded the statements of PW.1./victim. The next day
PW9/G.Rama Krishna took up the investigation. He visited the scene of offence and conducted scene of offence panchanama in the presence of PW.6/Chandrashekar and
PW.7/M.Nagaiah. He examined and recorded the statements of PW2/husband of victim, PW3/Uncle of victim LW4/Mother in-law of victim, LW5/Brother in-law of victim,
PW4/Yadaigir and PW5/Krishna. On 8-09-2017 the accused was arrested and produced before the court for judicial custody. After completion of investigation he has filed charge sheet.
4.Cognizance was taken under sections 376 R/w. 511 of IPC against the accused by the Leaned Additional Judicial First Class Magistrate at Medak and numbered as
PRC No. 27 of 2017 on the file of the Judicial First Class Magistrate at Medak.
5.On appearance of the accused, the Learned Magistrate furnished copies of the charge sheet and other connected documents to him under section 207 of Cr.P.C.
before the Committal Court.
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6.This case is committed to Court of Sessions at Sessions Division, Medak at
Sangareddy and the same is taken on file as SC No. 6 of 2018 and made over to this
Court.
7.After appearance of the accused before this Court and after hearing the Learned
Additional Public Prosecutor and the defence counsel, charges under section 376 R/w.
511 of IPC has been framed against the accused under section 228 (2) of Cr.P.C., read over and explained to him, he pleaded not guilty and claimed to be tried.
8.The prosecution has examined PW.1 to PW.9 and got marked Ex.P.1 to Ex.P.7.
9.The accused was examined under section 313 of Cr.P.C. he denied evidence and reported no defence witnesses.
10.Heard both sides. The matter stood for judgment.
11.Now the point for determination is:-
1. Whether the prosecution has proved that the accused tried to commit rape on the victim woman?
2. Whether the prosecution proved the guilt of the accused beyond all reasonable doubt?
12.Point No.1 :-
Whether the prosecution has proved that the accused tried to commit rape
on the victim woman?
Point No.2 :-
Whether the prosecution proved the guilt of the accused beyond all
reasonable doubt?
13.The prosecution examined PW.1 to PW.9 and got marked documents Ex.P.1 to
Ex.P.7. PW.1 is victim, PW.2 is Husband of victim, PW.3 is younger Father in-law of victim, PW.4/Yadagiri, PW.5/Krishna are circumstantial witnesses, PW.6/Chandra 4 of 20 SC No. 06 of 2018
Shekar and PW.7/Nagaiah are panch witnesses for scene of offence. PW.8/D.Vittal and PW.9/G.Ramakrishna are investigating officers.
14.PW.1/victim deposed on 02-08-2017 at 2.30 PM nobody was in her house.
When she was going outside of village nearest to stream (Vagu) for attending nature calls. At that time the accused caught hold her hand then she forcibly removed her hand from his hand and ran away from that place. After 3 days of incident when her husband came, she informed the matter to him. Her husband discussed the matter with PW.3 and elders later they lodged a report under Ex.P1.
15.In the cross examination she deposed she did not give written complaint to the police. She used to wear bangles. When the accused caught hold her hand the bangles were not broken. She admits the area where she went for nature calls is agriculture land. At that time the lands were not cultivated so the public are not available. She denied suggestion that there were money disputes in between accused and her husband so that they foisted false case and the accused never misbehaved with her. She further deposed her mother in-law and her younger brother in-law are residing in her house. She did not inform the matter to them. The distance between police station and her village may be 2 kms. A person can go to police station within ½ an hour by walk. She denied suggestion that the police station is nearest to her village and her in-laws are available but after 3 days she lodged false report with false allegations.
16.PW.2/Husband of victim deposed on 02.08.2017, he went to Hyderabad on his work. He return back to home on 5-8-2017. PW.1 informed when she went to outside of village for attending nature calls, the accused caught hold her hand and tried to misbehave with her. He threatened to kill her. He inform the matter to PW.3 and villagers later they lodged report.
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17.In the cross examination, he deposed he can write and read in Telugu language.
There are agriculture fields nearest to the stream (Vagu) where the PW.1 had gone for attending nature calls. At the relevant time he was having small phone and there was no phone in his house. He denied suggestion that due to money disputes the PW.1 lodged false report, if such incident occurred she would have made phone call to him as there was no such incident so she did not inform the matter to him and to his mother or brother.
18.PW.3/Younger Father in law of the victim deposed that on 02.08.2017, he went to Srisailam, on 3-8-2017 he came back to village, PW.1 informed the accused misbehaved with her. He said after return of PW.2 they will discuss the matter. After returning of PW.2 they went to police station and lodged a report on 5-8-2017.
19.In the cross examination, he deposed that he is elder of family of Pw.1 and
PW.2. If anythings either good or bad happens in the house of PW.2 they used to inform the matter to him. On 3-8-2017 his wife inform the matter to him. The public used to move in the area of stream and also in the way of his house. The persons used to move on their vehicles in that area at any time. The stream is at a distance of 200 mtrs. away from the house. He denied suggestion that no such incident occurred as such they did not lodge any report on 3-8-2017, due to money disputes the PW.1 lodged false report.
20.PW.4/Yadagiri and PW.5/Krishna circumstantial witnesses, they did not support the prosecution case and categorically stated they do not know anything about this case and police never examined them. The learned P.P. request the court to declare the witness as hostile and cross examined the witness with the permission of court by explaining the contents of 161 Cr.P.C. statements, even though they did not support prosecution case. So, the evidence of PW.4 and PW.5 Are not helpful to the prosecution.
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21.PW.6/Chandrashekar, PW.7/Nagaiah panch witnesses for scene of offence they did not support the prosecution case and categorically stated they do not know anything about the panchanama and police obtained their signatures on some papers.
The learned P.P. request the court to declare the witness as hostile and cross examined them by explaining the contents of panchanama even though they did not support prosecution case. So the evidence of PW.6 and PW.7 are not helpful to the prosecution.
22.PW.8/D. Vittal, Head Constable deposed that on 05.08.2017 at 2130 hours, he received complaint from PW.1 and registered a case in Cr. No. 49 of 2017. Later, he handed over CD file to PW.9/G. Rama Krishna. In the cross examination, he deposed the offence took place on 2-8-2017 but the complaint was lodged on 5-8-2017. There is a delay of 3 days in lodging report. As per his investigation the crime No.49/2017.
The received time is mentioned as 1200 hours. He denied suggestion that due to financial disputes the husband of PW.1 met with him and on his wrong suggestion a false complaint has been filed.
23.PW.9/G. Rama Krishna deposed that he recorded the statements of PW.1 to 3
LW.4, LW.5, PW4 and PW.5, he has conducted scene of offence panchanama. After completion of investigation, he has filed charge sheet. In the cross examination, PW.9 denied suggestion that he did not examine independent witness and the accused never touched the body of PW.1 and never misbehaved with her. He denied suggestion that the accused never committed offence and he registered a false case.
24.The above discussion shows the Pw1 to 3 i.e. complainant and independent witnesses/her relatives supported the prosecution case. Later on the police officials
PW8 and PW9 supported the prosecution case, PW4 and PW5 who are alleged to be eye witnesses to the incident, PW6 and PW7 alleged to be panch witnesses for scene 7 of 20 SC No. 06 of 2018 of offence did not support prosecution case.
25.The defence counsel contended that PW2 and PW3 are not eye witnesses to the incident, their evidence is hearsay evidence, when the evidence of PW2 and PW3 kept aside, the evidence of PW1 alone is available. The defence counsel contended that basing on the sole testimony of PW1 this court cannot convict the accused. No doubt PW2 and PW3 are circumstantial witnesses. PW2 is husband of PW1, PW3 is
Junior paternal uncle of PW2, both are stated they were not present at the time of incident but they came to know of incident through PW1. It means Pw2 and PW3 are not having personal knowledge of the incident. They came to know of incident through
PW1 only. Admittedly, the evidence of PW2 and PW3 does not fall under Sec.6 of
Indian Evidence Act in other words it is not forming part of same transaction. The
PW2 and PW3 were not informed the incident by the PW1 on the date of offence, at the time of incident and not immediately after the incident. So, their evidence is hearsay evidence which is not admissible as per evidence act. So, this court has to rely upon the sole testimony of PW1.
26.Now the point arose whether the court can rely upon the sole testimony of
PW1 to connect the accused with the alleged offence. The PW1 stated on 02.08.017 at 2.30 PM when she went to outside of village nearest to stream (Vagu) for attending nature calls. The accused caught hold her hand then she forcibly removed her hand from his hand and ran away from that place. The evidence of PW1 shows the accused misbehaved with the PW1 and caught hold her hand. Whether the PW1 evidence is reliable or not? is to be looked into. While coming to the conclusion whether the evidence of PW1 is reliable or not, this court has to look into the cross examination portion of PW1, the careful scrutiny of cross examination of PW1 shows she used to wear bangles on that day the accused caught hold her hand but the bangles were not broken. She deposed the area where she went for nature calls is agriculture land. At that time the lands were not cultivated so the public are not 8 of 20 SC No. 06 of 2018 available. Later on in the cross the defence counsel has given several suggestions that there was money dispute in between her husband and accused so that they foisted false case. She denied this suggestion later on she was given suggestion that though the police station is nearest to her village and her in-laws are available but after 3 days complaint was lodged with false allegation. The cross examination of PW1 shows that nothing has been elicited against the PW1 to disbelieve her evidence.
27.As per her evidence when the accused caught hold her hand, the bangles were not broken so there is no question of injury over her hand. Therefore there is no question of medical certificate. Further there is no allegation of penetrative sexual assault on PW.1. So there is no question of injuries over the area of vagina. The allegation is that the accused caught hold her hand and she forcibly removed her hand from the hands of accused and fled away. Under such circumstances, we cannot expect any medical certificate. The oral testimony of PW1 alone is available to connect the accused with the alleged offence. Whether the evidence of PW.1 is reliable or not depends upon the facts elicited in the cross examination of PW.1. Generally, when there are omissions and contradictions, the evidence of victim is totally contradictory to the prosecution case, the Court can say that the evidence of PW.1 is not reliable and trustworthy. When we looked into the cross of PW1, the defence intended to say that due to money disputes this false case has been foisted. The same suggestion was given to PW2 and PW3 however PW1 to 3 denied said suggestion. This suggestion appears to be vague, no where the defence stated what was the exact amount due by the accused. In fact, it is not clear whether the PW2 borrowed the amount or the accused borrowed the amount. It is not stated whether the amount was given under any document and when it was given and who denied the payment of amount. In the absence of eliciting said material facts, how can the court come to the conclusion that due to money disputes, the PW1 lodged false report. Therefore, the defence failed to prove that due to the money disputes the false case has been filed. The defence has to explain what was the strong motive for PW1 to lodge false report against accused.
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In the cross examination of PW1 to 3 no where such suggestions are given to them to form an opinion that due to strain relations a false case has been foisted. Therefore the defence failed to prove the motive for filing false case.
28.The defence intended to say that the scene of offence is the area which is situated in the agriculture field so the public are available at scene, the prosecution has examined PW4 and PW5, they turned hostile and did not support prosecution case. When the offence took place in the public place, definitely the public are available. In the cross of PW1 she deposed the public are not available at that time.
PW2 stated public used to move on that area. PW3 deposed the public used to move in the area of stream and also in the way of his house. The persons used to move on their vehicles in that area at any time. The defence by relying on the evidence of Pw2 and PW3 contended it is the public place and the public are available so there is no question of committing offence at public place. No doubt the PW2 and PW3 stated the public used to move in that area but the scene of offence panchanama shows that the scene of offence are was shown in sy.No.972 nearest to stream (Bobbili cheruvu vagu). In the panchanama it mention that there are thick bushes nearest to stream (Vagu) and the public used to go to nature calls nearest to that stream. The police had mentioned the boundaries, as per boundaries after this vagu, the land of one Syed
Miraj Pasha, the land of Kanneboina Kistaiah, Bojja Narayana, Reddy Hanumanthu is situated. On southern side there is mud road used to go agriculture field by the villagers. The scene of offence panchanama shows there are thick bushes nearest to vagu, as there are bushes so that the public are going to that place for attending nature calls. We cannot expect public at that place. The public may be available on the mud road shown on southern side. The public may be in the agriculture field but the PW1 stated at the relevant time there was no agriculture operations and it was in afternoon hours so nobody was available. If it is so it cannot be say that when the public are available how can the accused do such activities in the open place. Infact in the cross of investigating officer PW9, the defence has not elicited anything by 10 of 20 SC No. 06 of 2018 disputing scene of offence panchanama. Further he has not asked any questions to the investigating officer about the presence of public at the place. In the absence of it, at the time of arguments he cannot ask the court to give benefit.
29.As regards the sole testimony of PW1, it is settled law that ‘the conviction for offence u/Sec.376 IPC can be based on the sole testimony of a rape victim is a well- settled proposition. In State of Punjab Vs. Gurmit singh 1996 2 SCC 384, referring to
State of Maharastra V. Chandraprakash Kewalchand Jain 1990 1 SCC 550 this court held that it must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. It has also been observed in the said decision by Dr.Jutice A.S Anand (as His Lordship then was), speaking for the court that the inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.
30.In State of H.P V.Gian Chand 2001 6 SCC 71 the court observed that the court has first to assess the trustworthy intention of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on, then the testimony has to be accepted and acted on though there may be other witnesses available who could have been examined but were not examined.
31.The above discussion made it clear that when the evidenced of PW1 is reliable 11 of 20 SC No. 06 of 2018 and trustworthy the court can rely on it without corroboration from other independent witnesses. More particularly in the offences of sexual assault it is not possible to produce eye witnesses or direct witness. Nothing has been elicited against PW.1 to believe that she deposed false with an intention to implicate the accused in false case.
There is no such strong motive for PW.1 to lodge false report against the accused.
Therefore the contention of defence holds not good.
32.As regards to the plea of delay in lodging report was raised by defence, as per version of PW1, on the date of incident the PW2/her husband was not available in the village, he was working as lorry driver so he went to outside of the village on work.
On 2-8-2017 he went to his work and the incident occurred on that day. On 5-8-2017 her husband came back on that day she informed the matter to him. Her husband
Pw2 discussed the matter with PW3 and also elders later on they lodged report against the accused. It means on the day of incident she has not informed the matter either to PW2 or to PW3. The PW3 stated on 2-8-2017 he went to Srisailam, the next day on 3-8-2017 he came back to village at the time PW1 inform the matter to him.
Then he said they will discuss the mater with her husband and later on they will lodge a report. However in the cross examination he came to know of the incident through his wife. His wife informed the matter, later on after arrival of PW2 they discussed the matter and lodged a report. The PW1 stated on the day of incident she did not inform the matter to anybody. In the chief examination she deposed her mother in-law and her younger brother in-law went to agriculture field and they are not available in the house. However in the cross examination she deposed her mother in-law and younger brother in-law are residing in her house. She did not inform the matter to them. At first time after arrival of her husband she informed the matter to her husband.
The defence contended that the PW3 admitted he is the elder of family of PW1 and
PW2 they used to discuss the family affairs either good or bad with him. The PW1 did not informed the matter either to PW3, or to her mother in-law and brother in-law who are available in the house. If said incident would have occur, she would have inform 12 of 20 SC No. 06 of 2018 the matter to them. There was no such incident as such she did not inform the matter to them. As per evidence of PW3, the wife of PW3 is aware of this incident and she inform the matter to him. In the chief he said on 3-8-2017 itself the PW1 informed the accused misbehaved with her but he said after return of PW2 they will discuss the matter. It means the PW1 has informed the matter to PW3 and his wife before informing the matter to her husband PW2. Though she informed the matter to PW2 but he has not taken any responsibility and he said they will discuss the matter after arrival of PW2. Therefore the contention of defence that the Pw1 has not lodged report immediately, there is a delay of 3 days in lodging report. No doubt there is a delay of 3 days in lodging report. The PW1 and PW2 stated the PW2 was not in the village so after arrival of PW2 they lodged a report. It is settled law that in case of sexual assault generally there will be a delay because of several reasons. The general tendency is that it involves the family reputation so the woman will not come forward to lodge report immediately. Some times they will wait for the arrival of male persons because already one incident was occurred and they will not directly go to the police station because of fear. Therefore the court just like in all cases, in case of rape cannot take the general view that as there is a delay so that it is fatal to the prosecution case.
33.In the decision of Hon’ble Supreme court in State of H.P. Vs. Prem Singh (2009) (1) SCC.420, held that ‘so far as the delay in lodging the FIR is concerned, the delay in cases of sexual assault cannot be equated with the case involving other offences.
There are several factors which weigh in the mind of prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly in rural areas, it would be quiet unsafe to through out the prosecution case merely on the ground that there is some delay in lodging FIR’.
34.In rape cases the prosecutrix remains worried about her future. She remains in traumatic state of mind. The family of victim would be generally be so reluctant to go 13 of 20 SC No. 06 of 2018 to the police station because of society attitude towards such a woman. In judgment state of Punjab Vs. Gurmit Singh AIR.1996 SC 1393 it was held that ‘the FIR is to be filled more promptly and if there is any delay the prosecution must furnish a satisfactory explanation of the same for the reason that in case the substratum of the evidence given by the complainant is found to be unreliable, the prosecution case has to be rejected in its entirety but so far as the case on hand is concerned immediately on the next day of incident the FIR was lodged there is no unreasonable delay in lodging FIR’.
35.The above decisions made it clear that in case of delay if the prosecution explains sufficient reason the court has to accept it and the court cannot take the general tendency that the delay is fatal to the prosecution case. In the instant case there is a delay of 3 days in lodging report. The prosecution stated the husband of
PW1 was not available so she did not approach the police and not lodged report. As per the record it appears the PW1 inform the matter to PW3 but the PW3 has not taken responsibility and asked to wait till the arrival of PW2. So it cannot be said that there is a delay.
36.The above discussion shows there is no such previous enemity to lodge false report against the accused. The testimony of PW1 is not shaken by way of cross examination. The prosecution has explained the reasons for delay. So, it is not fatal to the prosecution case. Now the court has to come to the conclusion whether the case falls under Sec.376 R/w 511 IPC or not. The defence counsel contended that the ingredients of section 376 IPC is not applicable. So, there is no question of attempt to commit rape on PW.1.
37.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
14 of 20 SC No. 06 of 2018 connection with her.
38.Now the question which arises for considerationis
Whether the facts narrated above falls within the purview of section
376/511 IPC or not?
39.In order to arrive at the correct conclusion, it is appropriate to examine the basic ingredients of section 375 IPC.
Rape. − A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :−
First. − Against her will.
Secondly. − Without her consent.
Thirdly. − With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly. − With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. − With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. − With or without her consent, when she is under sixteen years of age.
Explanation. − Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception. − Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
40.The important ingredient of the offence under Section 375 punishable under section 376 IPC is penetration which is altogether missing in the instant case. No offence under Section 376 IPC can be made out unless there was penetration to some extent. In absence of penetration to any extent would not bring the offence of the accused within the four corners of Section 375 of the Indian Penal Code. Therefore, the basic ingredients for proving a charge of rape are the accomplishment of the act with force. The other important ingredient is penetration of the male organ within the 15 of 20 SC No. 06 of 2018 labia major or the vulva or pudenda with or without any emission of semen or even any attempt at the penetration into the private part of the victim completely, partially or slightly would be enough for the purpose of Sections 375 and 376 IPC. Hon'ble Apex
Court had an occasion to deal with the basic ingredients of this offence in the case of
State of UP v. Babul Nath, (1994) 6 SCC 29. In this case, Hon'ble Apex Court dealt with the basic ingredients of the offence under section 375 in the following words :− “It may here be noticed that Section 375 of the IPC defines rape and the explanation to
Section 375 reads as follows :- "Explanation :− Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."
41.From the explanation reproduced above it is distinctly clear that ingredients which are essential for proving a charge of rape are the accomplishment of the act with force and resistance. To constitute the offence of rape neither Section 375 of IPC nor the explanation attached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of sections 375 and 376 of IPC. That being so, it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains. But in the present case before us as noticed above there is more than enough evidence positively showing that there was sexual activity on the victim and she was subjected to sexual assault without which she would not have sustained injuries of the nature found on her private part by the doctor who examined her."
42.Tarkeshwar Sahu v. State of Bihar, JT 2006 (12) SC 559 was also a case where a minor girl aged 12 years was forcibly taken by the accused with the intention of committing rape. But before he could execute his intentions, on hearing the cries of 16 of 20 SC No. 06 of 2018 the girl villagers including the Sarpanch rush in and accused was apprehended. Under these circumstances, it was held by Hon'ble Apex Court that it was a case of section 354 IPC and not that of section 376/511 IPC. In the backdrop of settled legal position, the conclusion becomes irresistible that the charge under section 376/511 IPC is not proved. What to talk about the penetration, there has not been any attempt of penetration to slightest degree.
43. In the instant case, the accused has been charged with Sections 376/511 IPC only. In absence of charge under any other section, the question now arises - whether the accused should be acquitted; or whether he should be convicted for committing any other offence pertaining to forcibly outraging the modesty of a lady. In a situation like this, section 222 of the Code of Criminal Procedure can be invoked which provides that in a case where the accused is charged with a major offence and the said charge is not proved, the accused may be convicted of the minor offence, though he was not charged with it.
44.Section 222 Cr.P.C. reads as under :−
When offence proved included in offence charged. − (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied."
45.A three−Judge Bench of Hon'ble Apex Court in the case of Shamnsahed M.
Multtani v. State of Karnataka, 2001 (1) RCR (Crl.) 617 : (2001) 2 SCC 577, had an occasion to deal with Section 222 of the Code of Criminal Procedure. The Court came 17 of 20 SC No. 06 of 2018 to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. In this view of the matter, it has become imperative to examine the legal position whether the offence of the accused falls within the four corners of other provisions incorporated in the Indian Penal Code relating to outraging the modesty of a woman/girl under section 354 IPC.
46.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."
47.So far as the offence under Section 354 IPC is concerned, intention to outrage the modesty of the women or knowledge that the act of the accused would result in outraging her modesty is the gravamen of the offence.
48.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 is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex.
49. 'Modesty' is given as "womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions".
50.In State of Kerala v. Hamsa, (1988) 3 Crimes 161, it was stated as under :
"What the legislature had in mind when it used the word modesty in Sections 354 and 18 of 20 SC No. 06 of 2018 509 of the Penal Code was protection of an attribute which is peculiar to woman, as a virtue which attaches to a female on account of her sex. Modesty is the attribute of female sex and she possesses it irrespective of her age. The two offences were created not only in the interest of the woman concerned, but in the interest of public morality as well. The question of infringing the modesty of a woman would of course depend upon the customs and habits of the people. Acts which are outrageous to morality would be outrageous to modesty of women. No particular yardstick of universal application can be made for measuring the amplitude of modesty of woman, as it may vary from country to country or society to society." possesses the modesty which is the attribute of her sex."
51.Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under Section 354. The culpable intention of the accused is the crux of the matter.
52. The High Court of Delhi in Jai Chand v. State [1996 Cri LJ 2039 (Del)] observed as under:- "The accused in another case had forcibly laid the prosecutrix on the bed and broken her pyjama's string but made no attempt to undress himself and when the prosecutrix pushed him away, he did not make efforts to grab her again. It was held that it was not an attempt to rape but only outraging of the modesty of a woman and conviction under
Section 354 was proper."
53. In Raja v. State of Rajasthan [1998 Cri LJ 1608 (Raj)] it was stated as under:
"The accused took the minor to a solitary place but could not commit rape. The conviction of the accused was altered from Sections 376/511 to one under Section 354."
54. The Court in State of Karnataka v. Khaleel [2004 Cri LJ (NOC) 10 (Kant)] 19 of 20 SC No. 06 of 2018 stated as follows: The parents reached the sugarcane field when accused was in process of attempting molestation and immediately he ran away from the place. There was no evidence in support of allegation of rape and accused was acquitted of charge under Section 376 but he was held liable for conviction under Sections 354/511 IPC.
55.The Court in Bisheshwar Murmu v. State of Bihar [2004 Cri LJ 326 (Jhar)] stated as under: "The evidence showed that the accused caught hold of the hand of the informant/victim and when one of the prosecution witnesses came there hearing alarm of the victim, offence under Sections 376/511 was not made out and conviction was converted into one under Section 354 for outraging the modesty of the victim."
56.The facts of above case is similar to the facts of present case. In the instant case, there was no such penetration or attempt to penetration, the accused caught hold the hand of PW.1, thereby outraged the modesty of PW.1. So, it is an offence punishable under section 354 of IPC. Though, there are no charges against the accused for the offence punishable under section 354 of IPC but in view of section 222, 223 of Cr.P.C., it is a minor offence compared with the offence punishable under section 376 R/w. 511 of IPC. So, the conviction is recorded for the offence under section 354 of IPC.
57.In the result, the accused is not found guilty for the offence punishable under section 376 R/w. 511 of IPC and accordingly he is acquitted for the same under section 235 (1) of Cr.P.C. The accused is found guilty for the offence punishable under section 354 of IPC and accordingly, he is convicted for the same under section 235 (2) of Cr.P.C.
Typed by the Stenographer Grade-III, corrected and pronounced by me in the open Court, on this the 12 th day of August, 2021.
II Additional District and Sessions Judge FAC IX Additional District and Sessions Judge Medak at Sangareddy 20 of 20 SC No. 06 of 2018
ON HEARING THE QUANTUM OF SENTENCE
58.The accused is present. The learned counsel for the accused and learned PP also present. Heard on sentence, the accused submits that he never committed any offence. He is having old aged parents. Therefore, he prays the Court to show lenient view while awarding the punishment.
59.On the other hand, the learned PP specifically argued that the accused has committed the offence on the victim lady. He is not entitled for any plea bargaining in the offence and further submitted that the accused has not made out any grounds to award minimum quantum of punishment. Hence, without extending leniency, the accused may be awarded maximum punishment.
60.With due consideration of arguments putforth by learned PP and the learned counsel for accused and also the accused with reference to his family and status and poverty and earning source etc., this Court heard its quantum of sentence and passed the sentence after taking into consideration of his financial condition and social back ground and age of accused. This Court feels that the interest of justice will meet if the accused is punished with rigorous imprisonment for a period of 01 (one) year and fine of Rs.1,000/- (One Thousand only) in default of payment of fine, simple imprisonment for 02 months.
61.In the result, the accused is not found guilty for the offence punishable under section 376 R/w. 511 of IPC, he found guilty for the offence punishable under section 354 of IPC and accordingly, he is convicted for the same under section 235 (2) of
Cr.P.C and sentenced to undergo rigorous imprisonment for a period of one (01) year and fine of Rs.1,000/- (Rupees One Thousand only). In default of payment of fine, he shall under go simple imprisonment for a period of two (02) months for the offence punishable under section 354 of IPC. The accused is informed of his right to file 21 of 20 SC No. 06 of 2018 appeal against the judgment of this Court. The accused is also informed of his right to free legal aid for filing appeal in the event if, he does not have means to file appeal.
The period of detention undergone by the accused in judicial custody shall be set off against the terms of imprisonment imposed on him and the accused shall undergo the remaining sentence as provided under section 428 of Cr.P.C. (The accused was in jail from 08.09.2017 to 15.09.2017) .
Typed to my dictation to the Stenographer Grade-III, corrected and pronounced by me in the open Court, on this the 12 th day of August, 2021.
II Additional District and Sessions Judge FAC IX Additional District and Sessions Judge Medak at Sangareddy
APPENDIX OF EVIDENCE
WITNESS EXAMINED
For Prosecution For Defence
PW.1: Victim woman NIL PW.2: Husband on victim woman PW.3: Father in law of victim woman PW.4: Yadagiri PW.5: Krishna PW.6: Chandrashekar PW.8: Nagaiah PW.9: G. Rama Krishna
EXHIBITS MARKED
For Prosecution For Defence
Ex.P.1: Complaint NIL Ex.P.2: Section 161 Cr.P.C. statement of PW.4 Ex.P.3: Section 161 Cr.P.C. statement of PW.5 Ex.P.4: Signature of PW.6 on scene of offence panchanama Ex.P.5: Signature of PW.6 on rough sketch Ex.P.6: Signature of PW.7 on scene of offence panchanama Ex.P.7: FIR
MATERIAL OBJECTS
NIL
II Additional District and Sessions Judge FAC IX Additional District & Sessions Judge Medak at Sangareddy