Premiya @ Prem Prakash vs State Of Rajasthan

conviction for offence punishable under Section 376 of the Indian Penal Code, 1860 (in short the `IPC') and sentence of 7

years imprisonment as was imposed by learned Additional

Sessions Judge No.2, Hanumangarh.

3. We do not propose to mention name of the victim.

Section 228-A of IPC makes disclosure of identity of victim of

certain offences punishable. Printing or publishing name of

any matter which may make known the identity of any person

against whom an offence under Sections 376, 376-A, 376-B,

376-C or 376-D is alleged or found to have been committed

can be punished. True it is, the restriction, does not relate to

printing or publication of judgment by High Court or Supreme

Court. But keeping in view the social object of preventing

social victimization or ostracism of the victim of a sexual

offence for which Section 228-A has been enacted, it would be

appropriate that in the judgments, be it of this Court, High

Court or lower Court, the name of the victim should not be

indicated. We have chosen to describe her as `victim' in the

judgment. (See State of Karnataka v. Puttaraja (2003 (8)

2 Supreme 364 and Dinesh alias Buddha v. State of Rajasthan

(2006 (3) SCC 771).

4. Background facts in a nutshell are as follows:

On 26.8.1987 at 1.30 p.m. the prosecutrix filed a report

(Ex.P-1) that on the preceding day i.e. 25.8.1987 in the

morning at about 9.00 or 9.30 a.m. that when she went to the

field of Bhinya Raika and was returning back to village

Biradhwal, accused Premiya all of a sudden came and caught

hold of her. Thereafter, the accused Premiya threw her on the

ground, put off his "Paijama", lifted her "Ghaghra" and

committed rape on her. When she tried to resist, accused

Premiya gave a blow on her eye and threatened to kill her, if

she made any sound. When she again cried for help, her aunt-

in-law Mst. Chandkauri (PW.2) came and challenged him.

Upon this, accused Premiya fled away from the place of

occurrence. The medical examination of prosecutrix was got

conducted on 26.8.1987 by doctor at 2.00 PM. After

investigation, the challan was filed against the accused. The

3 accused was charged for offence punishable under Section

376 IPC to which he pleaded not guilty. During trial, the

prosecution examined seven witnesses. The statement of

accused Premiya was recorded under Section 313 of the Code

of Criminal Procedure, 1973. He produced one Ramlal as DW1

in his defence. After hearing, the learned trial Judge convicted

and sentenced the accused Premiya as noted above.

5. The learned trial Judge relied on the evidence of victim

and Chandkauri (PW-2) who was stated to be an eye witness.

6. In appeal, the conclusions of the learned Additional

Sessions Judge for convicting the appellant and sentencing

him were affirmed.

7. In support of the appeal, learned counsel for the

appellant submitted that the High Court did not consider very

relevant aspects viz. the delay in lodging the First Information

Report, absence of injury and the admitted enmity between

4 PW-2 and accused as affirmed by Laxman, the husband of the

prosecutrix.

8. Learned counsel for the respondent-State on the other

hand supported the judgments of the trial Court and the High

Court.

9. Certain factual aspects need to be noted. There was no

unexplained delay in lodging the FIR. So far as absence of the

injury on the private parts of the prosecutrix is concerned,

admittedly she was a married lady. But on a close reading of

the evidence of the prosecutrix, it is clear that the accused

outraged the modesty but had not raped her. Prosecutrix has

not stated specifically about the act, but has loosely described

as "fondling"

10. So far as the enmity with aunt of Laxman (PW-4) the

husband of the prosecutrix is concerned it is un-natural that

a married lady belonging to the rural areas would falsely

implicate the accused with whom she or her husband had no

enmity.

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11. The offence of rape occurs in Chapter XVI of IPC. It is an

offence affecting the human body. In that Chapter, there is a

separate heading for `Sexual offence', which encompasses

Sections 375, 376, 376-A, 376-B, 376-C, and 376-D. `Rape' is

defined in Section 375. Sections 375 and 376 have been

substantially changed by Criminal Law (Amendment) Act,

1983, and several new sections were introduced by the new

Act, i.e. 376-A, 376-B, 376-C and 376-D. The fact that

sweeping changes were introduced reflects the legislative

intent to curb with iron hand, the offence of rape which affects

the dignity of a woman. The offence of rape in its simplest

term is `the ravishment of a woman, without her consent, by

force, fear or fraud', or as `the carnal knowledge of a woman

by force against her will'. `Rape' or `Raptus' is when a man

hath carnal knowledge of a woman by force and against her

will (Co. Litt. 123-b); or as expressed more fully,' rape is the

carnal knowledge of any woman, above the age of particular

years, against her will; or of a woman child, under that age,

with or against her will' (Hale PC 628). The essential words in

6 an indictment for rape are rapuit and carnaliter cognovit; but

carnaliter cognovit, nor any other circumlocution without the

word rapuit, are not sufficient in a legal sense to express rape;

1 Hon.6, 1a, 9 Edw. 4, 26 a (Hale PC 628). In the crime of

rape, `carnal knowledge' means the penetration to any the

slightest degree of the organ alleged to have been carnally

known by the male organ of generation (Stephen's "Criminal

Law" 9th Ed. p.262). In `Encyclopoedia of Crime and Justice'

(Volume 4, page 1356) it is stated "......even slight penetration

is sufficient and emission is unnecessary". In Halsbury's

Statutes of England and Wales (Fourth Edition) Volume 12, it

is stated that even the slightest degree of penetration is

sufficient to prove sexual intercourse. It is violation with

violence of the private person of a woman-an-outrage by all

means. By the very nature of the offence it is an obnoxious act

of the highest order.

12. In order to constitute the offence under Section 354 IPC

mere knowledge that the modesty of a woman is likely to be

outraged is sufficient without any deliberate intention of

7 having such outrage alone for its object. There is no abstract

conception of modesty that can apply to all cases. (See State of

Punjab v. Major Singh (AIR 1967 SC 63). A careful approach

has to be adopted by the court while dealing with a case

alleging outrage of modesty. The essential ingredients of the

offence under Section 354 IPC are as under:

(i) that the person assaulted must be a woman;

(ii) that the accused must have used criminal force on

her; and

(iii) that the criminal force must have been used on the

woman intending thereby to outrage her modesty.

13. Intention is not the sole criterion of the offence

punishable under Section 354 IPC, and it can be committed

by a person assaulting or using criminal force to any woman,

if he knows that by such act the modesty of the woman is

likely to be affected. Knowledge and intention are essentially

things of the mind and cannot be demonstrated like physical

objects. The existence of intention or knowledge has to be

8 culled out from various circumstances in which and upon

whom the alleged offence is alleged to have been committed. A

victim of molestation and indignation is in the same position

as an injured witness and her testimony should receive the

same weight. In the instant case after careful consideration of

the evidence, the trial court and the High Court have found

the accused guilty. But the offence is Section 354 IPC.

14. In the instant case we alter the conviction of the accused

from Section 376 IPC to Section 354 IPC. The accused has

undergone nearly two years of sentence. The occurrence is of

1987. Custodial sentence shall be the period already

undergone. Appellant shall be released forthwith unless

required in custody in connection with any other case.

15. The appeal is allowed.

.........................................J. (Dr. ARIJIT PASAYAT)

9 ..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, September 22, 2008

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