IMPORTANT POINT
Sine qua non of offence of rape is penetration & not ejaculation.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Leave granted.

2.Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Madhya Pradesh High Court at Jabalpur, dismissing the appeal filed by the appellant against the judgment of the learned III Additional Sessions Judge, Satna. Appellant was found guilty of offences punishable under Section 376 of the Indian Penal Code, 1860 (in short the ‘IPC’) and was sentenced to undergo RI for seven years.

3.Prosecution version as unfolded during trial is as follows :

Victim (PW-1) had gone in the field near Makararbandh to bring green grass and after collecting the green grass she was on her way back to her home. The appellant came to her and proposed for sexual intercourse. The victim protested and told that she will inform her mother in respect thereof. The appellant induced her not to say so to her mother as he will provide Rs.10/- to her. The appellant felled her on the ground and removed her undergarment and ravished her. She was crying in pain and at this the appellant had stuffed her mouth by clothes. The genital of the appellant had penetrated in her genital which gave immense pain to her and, thereafter, the appellant left her. She saw blood oozing from her private part which has besmeared her undergarment. After the return from the said field she has narrated the incident to the brothers and their wives.

4.On completion of investigation the charge-sheet was placed. Accused faced trial. In order to establish the accusations the prosecution examined 10 witnesses. The accused pleaded innocence and false implication. According to him, a false case was posed at the instance of Rambhan Singh, Sarpanch (PW-3). The Trial Court found the evidence of the prosecutrix to be cogent and credible and accordingly as noted above, it found the accused guilty.

5.In appeal, the conclusions of the Trial Court were affirmed by the High Court.

6.In support of the appeal, Ms. Promila, learned Amicus Curiae appearing for the appellant submitted that the Trial Court and the High Court failed to notice inconsistencies in the evidence of the witnesses and in any event no offence under Section 376 IPC is made out. Strong reliance is placed on the evidence of the doctors PW-7 and PW-8 to contend that at the most the offence can be in terms of Section 354 IPC or Section 511 IPC.

7.Per contra, learned counsel for the respondent-State submitted that the Trial Court and the High Court have analysed the evidence in great detail and have rightly concluded that offence punishable under Section 376 IPC.

8.Coming to the question as to whether Section 354 of the Act has any application, it is to be noted that the provision makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are:

(a)That the assault must be on a woman.

(b)That the accused must have used criminal force on her.

(c)That the criminal force must have been used on the woman intending thereby to outrage her modesty.

9.What constitutes an outrage to female modesty is nowhere defined in IPC. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word ‘modesty’ is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word ‘modesty’ in relation to woman as follows:

“Decorous in manner and conduct; not forward or lower; Shame-