Judgment

VENKATARAMA AYYAR, J.: The appellant was convicted by the First Class Magistrate, Hoogly for an offence under section 354, I.P.C. and sentenced to two years rigorous imprisonment. On appeal the Sessions Judge, Hoogly, confirmed both the conviction and the sentence, and a revision petition preferred to the High Court was rejected. This matter now comes before us on special leave under Article 136.

2. The facts which are not in dispute may first be stated.

Smt. Parul Bhattacharya, P.W. 6, is the wife of C.W. 1, who was employed in the Sodepur colliery. She came to Calcutta for confinement, and after delivery she started to rejoin her husband and boarded the Moghalsarai Passenger on 11-9-1951. She was escorted by a relation of hers, Rabindra Narayan Chakrabarti, P.W. 5. They got into an interclass compartment.

Another lady, Jyotsna Das, P.W. 9, travelling by the same train to see her father who was ill at Barakar, got into the same compartment at Howrah. She was escorted by P.W. 1, a friend of her father. There were some other passengers besides; but they go down at Panduah, leaving P. Ws. 1,5,6 and 9 as the sole occupants of the compartment.

The appellant who was also travelling by the same train but in a different compartment got down at Panduah for the reason that that was overcrowded and changed over to the compartment occupied by P. Ws. 1,5,6 and 9.

After the train started, differences arose between the appellant on the one hand and the other passengers on the other; a scuffle ensued; P.W. 1 pulled the alarm chain, and the train stopped at Boinchi. The police came on the scene, and found that P.W. 6 who had got down on the platform was weeping and that inside the compartment the appellant was standing with his hands clutching the chains attached to an upper berth and violently kicking the passengers. The constables who went in were also kicked, but somehow managed to pull him out of the compartment. Meantime, the people who had collected on the platform began to belabour the appellant with shoes and umbrellas until the police took him into safe custody.

3. The charge against the appellant was that he assaulted P.W. 6, Parul Bhattacharya, with intent to outrage her modesty. That she was assaulted by the appellant is established beyond all doubt. P.W. 6 deposed; "The accused kicked me. I got injuries on my arm, hand and back." This is corroborated by the evidence of P. Ws. 1 and 5.

P.W. 2 is the doctor who examined her shortly after the incident, and he stated that he found scratches above the wrist in the right forearm and contusion below the shoulder in the right arm. Indeed, counsel for the appellant did not seriously challenge the correctness of the finding of the courts below that the appellant did assault P.W. 6. He only threw out a suggestion that P.W. 6 might have intervened on the side of P. Ws. 1 and 5 when they were engaged in a scuffle with the appellant and chance blows might have descended on her. This is a wholly gratuitous suggestion, and is opposed to the evidence on the side of the prosecution, and must accordingly be rejected. The finding of the Courts below that the appellant assaulted P.W. 6 must therefore be accepted.

4. The next question is whether he did so with intent to outrage her modesty, or with the knowledge that it would be outraged. Having gone through the entire evidence, we are not satisfied that that has been established.

The most serious allegation against the appellant on this part of the case is that he forcibly held the two ladies to his breast. The first information report given by P.W. 5 stated that he "in his naked condition clasped both of them on to his breast". The evidence in the case, however, does not bear this out. P.W. 1 stated that the two ladies became frightened at the attitude of the appellant and went down to the floor of the compartment for safety, and then the appellant caught hold of them and embraced them. P.W. 5 deposed that the appellant caught hold of both the ladie