Premiya @ Prem Prakash v. State of Rajasthan
Dr. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned
Single Judge of the Rajasthan High Court at Jodhpur dismiss
ing the appeal filed by the appellant and upholding his convic
tion for offence punishable under Section 376 of the Indian Pe-
G nal 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 narr:e of the victim. Sec
tion 228-A of IPC makes disclosure of identity of victim of cer
H tain offences punishable. Printing or publishing name of any
A 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 Ses-
sions Judge for convicting the appellant and sentencing him
were affirmed.
7. In support of the appeal, learned counsel for the appel-
!ant 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 PW-2 and
c accused as affirmed by Laxman, the husband of the prosecu-
trix.
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 roted. 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, ad-
mittedly she was a married lady. But on a close reading of the
E 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 "fon-
dling"
10. So far as the enmity with aunt of Laxman (PW-4) the \r
F husband of the prosecutrix is concerned it is un-natural that a
married lady belonging to the rural areas would falsely impli-
cate the accused with whom she or her husband had no enmity.
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
G 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 sub-
stantially changed by Criminal Law (Amendment) Act. 1983, and
several new sections were introduced by the new Act, i.e. 376-
H A, 376-8, 376-C and 376-0. The fact that sweeping changes
PREMIYA @ PREM PRAKASH v. STATE OF
RAJASTHAN [DR. ARIJIT PASAYAT, J.)
775
were introduced reflects the legislative intent to curb with iron A
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 B
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 es
sential words in an indictment for rape are rapuit and carnaliter C
cognovit; but carnaliter cognovit, nor any other circumlocution
without the word rapuit, are not sufficient in a legal sense to
express rape; 1Hon.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 0 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.Stat
utes of England and Wales (Fourth Edition) Volume 12, it is
stated that even the slig~test degree of penetration is sufficient E
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 F
IPC mere knowledge that the modesty of a woman is likely to
be outraged is sufficient without any deliberate intention of hav-
ing such outrage alone for its object. There is no abstract con
ception of modesty that can apply to all cases. (See State of
Punjab v. Major Singh (AIR 1967 SC 63). A careful approach G
has to be adopted by the court while dealing with a case alleg-
ing 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;
A (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.
B 13. Intention is not the sole criterion of the offence punish-
able under Section 354 IPC, and it can be committed by a per
son assaulting or using criminal force to any woman, if he knows
that by such act the modesty of the woman is likely to be af
fected. Knowledge and intention are essentially things of the
c 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 of
fence is alleged to have been committed. A victim of molesta
tion and indignation is in the same position as an injured wit-
D ness 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 ac-
E cused 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 under
gone. Appellant shall be released forthwith unless required in
custody in connection with any other case.
F 15. The appeal is allowed.
N.J. Appeal allowed.