Vikas Motiram Ghodke vs State of Maharashtra

A.P. Bhangale, J.—By this revision, the revision applicant questions legality, propriety and correctness of the judgment and order dated 29.03.2011 passed by the learned Sessions Judge Akola in Criminal Appeal no 18 of 2009 dismissing the appeal which arose from the conviction of the applicant for the offence punishable u/s 354 of the Indian Penal Code in Summary Criminal Case No. 9602 of 2006 decided by the learned Judicial Magistrate, First Class, Akola.

The facts, stated in brief, are as under:

That the first informant Ku. Swati Mhaisne lodged a report on 14.02.2006 at about 9 a.m. that she had gone to Shivam General Stores at Vardhman Nagar Kaulkhed, Akola to buy refill for the Pen. The applicant who was the shopkeeper was present in the shop. She gave Rs. 1/-to the applicant and asked for the refill. The applicant asked her name and called her inside and outraged her modesty by putting his hand on her cheek and also put his hand inside her petticoat, touching her private part. The girl frightened by the incident went to her house and narrated the incident to her aunt and to her uncle. She lodged report to the police on 16.02.2006 giving rise to the Crime registration No. 94 of 2006. The applicant was charge sheeted and charged u/s 354 of the Indian Penal Code in the Case bearing SCC No. 9602 of 2006.

The prosecution had examined five witnesses. The applicant, in defence, examined himself and one witness. The trial Magistrate found the applicant guilty of the offence punishable u/s 354 of the Indian Penal Code and sentenced him to suffer simple imprisonment for three months and to pay a fine in the sum of Rs300/-and in default of payment of fine, he was sentenced to suffer simple imprisonment for 15 days. The applicant challenging the conviction preferred Criminal Appeal No. 18 of 2009, which was dismissed by the impugned judgment and Order dt. 29.03.2011.

I have heard the submissions canvassed by the learned Advocates for the respective parties at length and perused the record and proceedings. In the present case, the learned Advocate for the Applicant submitted that there was delay of about two days to lodge FIR and it is not explained by the prosecution. Secondly, it is submitted that there was no independent witness to corroborate the version of the alleged victim girl. Thirdly, it is submitted that the prosecution has failed to prove the offence punishable u/s 354 of the Indian Penal Code beyond reasonable doubts. According to the learned Advocate for the applicant, the evidence of the PW 1, 3 and 4 was of hearsay nature and could not have been relied upon by the Courts below as corroborating evidence. Alternatively, it is submitted that leniency be shown and benefit of the Probation of Offenders Act be granted to the applicant since he is now a married man and would suffer irreparably if sentenced to imprisonment.

The learned A.P.P. opposed the prayer for leniency and supporting the impugned Judgments delivered by the courts below, submitted that the conviction ought to be confirmed.

Regarding the submission as to delay of two days to report the FIR to the police, it has to be considered that it is a difficult decision to take the matter to the court. Ordinarily when honour of the family is involved, the family of the victim girl would not like any stigma to be attached to her and her family. Delay in such a case is normal. As to the probability of false implication of the accused, I find it difficult to digest that a school girl will prefer to put her character at stake only in order to take revenge upon a Shopkeeper or in order to falsely implicate the accused. The submission of the learned Advocate for the applicant is that the independent witnesses are not examined. But, the incident of outraging modesty of the woman has taken place inside the shop itself and there was no person present in the shop to see the said incident and therefore, non-examination of independent witness from the neighborhood of the shop cannot be said to be something going against the prosecution.

It is a settled legal position that in order to constitute the offence punishable u/s 354 of the Indian Penal Code, mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. There is no abstract conception of modesty that can apply to all cases. (See State of Punjab Vs. Major Singh, . 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 u/s 354 of the Indian Penal Code 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.

Intention is not the sole criterion of the offence punishable u/s 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 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.

I think that there would be no justification for this Court to interfere with the concurrent Judgments by the courts below unless

(i) the decision is grossly erroneous

(ii) There was no compliance with legal provisions

(iii) Findings recorded are perverse/ without evidence.

(iv) There was arbitrary exercise of discretion/discretion not tenable according to law.

The sentence is required to be proportionate to the crime committed. It must also ensure the adequate deterrence for like-minded prospective offenders: the commission of crime. The object of punishment is to protect the society by stamping out the offender by imposing sterner sentence where it should be and tempered with mercy if so warrants.

For the reasons stated above, no case is made out to warrant interference. The revision application lacks merits and stands dismissed.