N.S. Shiva vs State

V. Jagannathan, J.—This petition is disposed of finally after hearing learned Counsel Sri. S.K. Manjunath for the Petitioner and Sri. P. Karunakar, learned Government Pleader, who took notice for the Respondent-State.

The Petitioner herein is aggrieved by the judgment and conviction passed by the trial court in respect of the offence punishable u/s 354 of the IPC and consequent sentence of one year imprisonment and Rs. 2,000/- fine imposed upon the Petitioner. The said judgment was confirmed by the lower appellate court by dismissing the appeal preferred by the Petitioner.

The facts in brief are that, on 5.2.2008 at around 12 noon when the victim girl Nagarathna was in her house at Nagavala village, the accused-Petitioner herein tapped the door and the door being opened by the victim girl, the accused closed the door and thereafter closed the mouth of the victim with his hands and also tore her nighty, apart from hugging her. The complaint lodged by the mother of the girl led to the case being registered against the Petitioner for the offence punishable u/s 354 of IPC. Following the completion of investigation and filing of charge sheet and consequent to the Petitioner not pleading guilty, the prosecution led evidence by examining eight witnesses and producing five documents apart from producing the nighty as per M.O.1.

Upon evidence appreciation, learned trial judge was convinced of the case being proved beyond reasonable doubt by the prosecution and in arriving at the conclusion, the evidence of PW-1 the mother of the girl and PW-2 Nagarathna who is the victim, was taken into consideration apart from the other evidence of the official witnesses. The conviction of the Petitioner was the result and consequent sentence referred to earlier. The lower appellate court had dismissed the appeal preferred by the Petitioner.

Learned Counsel for the Petitioner argued that the victim girl herself was in love with the Petitioner and therefore the question of any offence being committed by the Petitioner does not arise and in this regard he referred to the evidence of PW-1 and PW-2 who are the material witnesses and submitted that the trial court was in error in convicting the Petitioner.

On the other hand, learned Government Pleader for the State, referring to the evidence of some more witnesses, argued that the testimony of PW-1 and PW-2 leaves no doubt as to the commission of the offence of outraging the modesty by the accused and the evidence of PW-2 also shows that she was not in love with the Petitioner. As such, the conviction ordered by the trial court calls for no interference.

After hearing both sides and after going through the material witnesses placed for my perusal by the learned Counsel for the Petitioner and taking note of the evidence of PW-2 the victim girl in particular, it is found that the said witness has stated, when nobody was in the house, the accused came and bugged her and also tore her nighty. The witness has denied the suggestion that the accused did not commit the said act. The said evidence is supported by the evidence of PW-1, who is the mother of the victim.

I therefore see no error being committed by the trial court nor by the lower appellate court in accepting the prosecution case as having been proved beyond all reasonable doubt. The conviction of the Petitioner u/s 354 of the IPC does not call for any interference.

Coming to the question of sentence, the trial court had sentenced the Petitioner to undergo S.I for one year and to pay a fine of Rs. 2.000/- and submission made by the learned Counsel for the Petitioner is that, the offence u/s 354 of IPC permits either imprisonment or fine being imposed and therefore the sentence of imprisonment be modified with that of fine.

The submission made is opposed by the learned Government Pleader by submitting that the offence is a serious one as the Petitioner has tried to outrage the modesty of PW-2.

Taking note of the above submission put forward concerning the sentence, in my view, as the Petitioner had outraged the modesty of the girl and the incident is said to have been taken place in the village, the sentence to be imposed cannot be a flea bite sentence and on the other hand it should be one which would balance the interest of the accused on the one side and that of the Society on the other. Therefore, the sentence of imprisonment at the most could be reduced from one year to six months and at the same time, the fine amount can be increased by a further sum of Rs. 8,000/-.

For the aforesaid reasons, the following order is passed:

The conviction of the Petitioner for the offence punishable u/s 354 of IPC is confirmed.

As far as the sentence is concerned, instead of one year imprisonment, the Petitioner shall undergo simple imprisonment for a period of six months and shall also pay a fine of Rs. 10,000/-including the fine amount imposed by the trial court. Fine amount, if paid, shall be paid to PW-2 the victim girl as compensation. In the event of default of payment of fine, the Petitioner shall undergo S.I for a further period of three months.

The Petitioner is entitled to set off for the period, if he has spent in custody.

The petition therefore stands disposed of with the aforesaid modifications.