State of Maharashtra vs Manohar Alias Manya Kanhaiya Bairagi

The question in this appeal against acquittal by the State is as to whether the test of a woman''s individual reaction to the act of the accused with regard to outraging of modesty is the test, or, that the essence of a woman''s modesty is her sex. In the process, the question is as to whether the Court has to consider a woman''s modesty as lying in her sex and exposing through her instantaneous reactions irrespective of the intention of the accused as regards the matter. Reaction of a woman instantaneously is very relevant together with the position that it is her sex that clothes with a born sense of modesty. In fact, these principles are laid down by the Supreme Court and even thereafter. They are to the effect that the body of a female of a tender age may be immature at a given point of time, but development of a sense of shame, an awareness of her sexual characteristics, although get postponed to a particular age, the Court has regard that from her very birth, she possesses the modesty, which is the attribute of her sex. These principles are well-settled and even then, in a short but cryptic order of acquittal, even though the prosecutrix is a young woman of 20 years of age, in spite of there being evidence of instantaneous resistance and shouts, the order is passed on a solitary reasoning that the accused-respondent did not possess the necessary intention of outraging the modesty of the prosecutrix. This is obviously a legally erroneous conviction.

Although it is elementary, the provisions of Section 354, Indian Penal Code, need a passing reference for the completeness of this judgment. The provision creates a criminal liability of the person assaulting or using the criminal force to any woman, not only intending, but also knowing it to be likely that the result would be an outrage of the modesty of a woman. It is equally elementary that intention or knowledge is provided by the factual matrix.

The prosecutrix Kamlabai is a resident of village Dhondwade. She was in the early hours at 5.30 a.m. of December 4, 1985, setting out for getting water from the village well. The well is situate near the village temple of Maruti. The accused-respondent caught her hand and pulled her towards him to be taken to a wada nearby. She raised a hue and cry of resistance. Some persons gathered; the first one was her neighbour Shalik (P.W. 2). The second one to follow was her another neighbour Dhanabai (P.W. 3). The evidence shows that Shalik saw the accused-respondent holding the hand of the prosecutrix Kamlabai (P.W. 1) and Dhanabai (P.W. 3) is contradicted in regard to this aspect of holding the hand. In fact, Dhanabai has turned hostile in the cross-examination. In the process, Kamlabai''s bangles were broken and the breakage caused injuries. Kamlabai tells the Court that injuries were bleeding, in regard to which there is no support of the medical officer, Dr. Narwade (P.W. 9) of the Primary Health Centre at Pahur. His evidence is only to the effect that he found bruises. However, the spot panchnama (Exh. 12) proved through the panch Badgujar (P.W. 4) cleasentions finding of the broken bangle pieces of the same orange colour, which was of the intact bangles on the person of the prosecutrix Kamlabai.

The defence is one of total denial.

The evidence of the prosecutrix is as follows :-

"...... Accused all of a sudden came there. Accused shut my mouth by one of his hands and held me by holding my hand. Accused was trying to pull me by force towards Tapari. There is a kondwada towards that side. I gave a jerk to his hand and raised shout. Due to the jerk given by me, the hand of the accused on my mouth got away and therefore, I raised shout. One Shalik Patil came there running, and questioned the accused. Accused ran away from the spot. In the meantime, Dhanabai also came there. At the time of incident, I was wearing bangles of Narangi colour and the bangles from my left hand got broken ........."

This evidence has remained completely unshaken in the cross-examination. In the cross-examination, what has been asked is about the distances of various places and houses of the witnesses in the village. She is cross-examined that at this time of early hours of the morning at 5.30 a.m., woman folk in the village gathered around the village well and although there are three other wells in the village, this well of the village near the Maruti temple is in use. In the cross-examination, various denied suggestions, which have not been probabilised at all, either in the cross-examination of the prosecutrix, or, by any other manner, have been asked. Kamlabai is asked and she has admitted that Dhansing is the husband of Dhanabai and their agricultural field is adjacent to that of the accused-respondent. She is also asked and she stated that Dhanabai actually arrived after the accused-respondent fled away, and it was Shalik Patil, who was in the vicinity at the time of the incident. She was holding an empty Ghagar in her right hand. Reading the evidence, there is no dent to her evidence in any manner.

Her evidence is also well supported by the first information report (Exh. 9) and in her cross-examination, not a single variation has been brought on record in any manner.

The evidence of Shalik (P.W. 2) shows that he had seen actually the accused-respondent pulling the complainant by holding her hand and the incident took place near a tapari situated near the village par. Shalik tells the Court that the wada where the accused-respondent wanted to drag Kamlabai was for tying cattle and was possessed by the accused-respondent. Shalik saw Dhanabai and tells the Court that she had seen the incident. In the cross-examination also, except asking him about the situation of the electricity pole, no other material is brought out, which has a strength of impeaching the credit of the witness, especially with regard to the evidence given by the witness in examination-in-chief. His evidence shows that his house is almost near the spot and he was cleaning the courtyard of his house in the early morning hours. It is the practice of the villagers to do this job of cleaning the court-yard in the early morning hours because of the belief that compound should be seen clean by the rising Sun God.

The evidence of Dhanabai (P.W. 3), as stated above, with regard to the holding of the hand of Kamlabai, as having been seen by the witness, has been withdrawn by her in her cross-examination. At any rate, even Shalik in his evidence has told the Court that Dhanabai arrived slightly later. At any rate, Dhanabai''s presence cannot be challenged and has not been challenged on behalf of the accused-respondent in the cross-examination.

The panch has proved the spot panchnama (Ex. 12) and the documentary record of the finding of the broken bangles.

The medical officer, as stated above, has deposed to about the finding of bruises as having been recorded in the medical certificate (Ex. 18) contemporaneously.

Taking the resume of the oral evidence on record, with relevance, the impugned order of acquittal is obviously bad in law. The facts that are established by the prosecution evidence are that the respondent-accused did not know or had any contact as far the prosecutrix Kamlabai is concerned, like all other woman folk of the village, Kamlabai was a villager. At odd hours in the early morning, the accused-respondent caught her at a lonely place and held her hand, which was resisted by the prosecutrix, which is established by the injuries as well as broken pieces of bangles. Additionally, the evidence shows that she also raised shouts. These factors are more than enough to spell out the necessary intention, or, at least, sufficient enough to fix the necessary knowledge.

The learned Magistrate has committed a legal error in recording an order of acquittal only on the basis that the accused-respondent had no intention. The facts on record fail to show that the accused-respondent had any noble intention in catching hold of the hand of a lonely woman in the early hours of the morning of a small hamlet, known as Dhondwade.

Shri Kadam, learned Additional Public Prosecutor, pressed for a substantive and maximum sentence. The learned Counsel submitted that the action was such that the progress and advances of the accused-respondent were stopped by the arrival of Shalik, followed by Dhanabai. The learned Counsel submitted that the facts are more eloquent to show that the accused-respondent would have completed his job in the early hours of the morning. The learned Counsel, therefore, submitted that this is a case where this Court should consider award of maximum sentences of rigorous imprisonment for two years and also fine.

I have given a careful consideration and, in the process, I have to take into consideration that this is an event of 1985, for which this Court is considering the sentencing process in 1994. This does not call for the award of any substantive sentence as such; but, at any rate, the offence has to be dealt with with an amount of deterrence and obligations of social accountability of the Court.

Taking all these aspects into consideration, the appeal stands allowed. The accused-respondent stands convicted of the offence u/s 354, Indian Penal Code, and is sentenced to pay a fine of Rs. 5,000/-, in default to undergo R.I. for six months. The accused-respondent is directed to deposit the amount of fine of Rs. 5,000/- in the trial Court the Court of the Judicial Magistrate, First Class, Jamner - on or before May 10, 1994. On deposit of the amount of Rs. 5,000/-, the amount of Rs. 3,000/- is hereby ordered to be paid to the complainant Kamlabai (P.W. 1), who is the resident of village Dhondwade, taluka jamner district Jalgaon, u/s 357, Cr.P.C., 1973, by way of compensation. The learned Magistrate is directed to comply with the order of compensation within a period of three weeks from the deposit of the amount of fine, as ordered above. Ordered accordingly.

Appeal allowed.