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1998 (2) Crimes 335
MADHYA PRADESH HIGH COURT
TEJ Shankar, J.
Kripan Singh - Appellant
versus
The State of Madhya Pradesh - Respondent
Criminal Appeal No. 282-1989
Decided on 22-9-1997
Counsel for the parties:
For the Appellant: Shri B. Raj Sharma, Advocate.
For the Respondent: Shri S.P. Bhatnagar, Panel Advocate.
IMPORTANT POINT
In order to constitute offence u/ s 354 of IPC, it must be shown that the use" of criminal force to any woman is with the intention to outrage or knowing it to be likely that he will thereby outrage the modesty of the woman.
Headnote:Indian Penal Code, 1860 - Section 354 - Testimony of prosecutrix - Prosecutrix alleging in 1st FIR that accused pushed her - Prosecutrix in 2nd written FIR alleging rape by accused and also changing time of incident - Allegation of rape rightly disbelieved by trial court - Essential ingredients of offence u/s 354 - Not made out by prosecutrix by 1st FIR Prosecutrix concocting the case and not coming with clean hands - 2nd written FIR cannot be relied on Conviction of accused by Trial court - Set aside and accused acquitted.
Held: In the earlier F.I.R., Ex. D-1, the only allegation was that the appellant had pushed her. Later on, in the, written F.I.R. which was addressed to the S.P. Ex. P-2 she changed the time of occurrence and asserted that the time was 2 P.M. Apart from it allegation of rape was also made, It can, therefore; safely be said that it was an after thought. The learned Court below rightly discarded the story of commission of rape by the appellant. As far as the offence u/s 354 I.P.C, is concerned, it may, be mentioned' that in view of averments made in F.I.R., Ex D-1, it cannot be said that the essential ingredients of the offence u/s 354 are made out. The only allegation is that the accused had pushed her. Under Section 354 I.P.C. it must be shown that the use of criminal force to any woman must be with the intention to outrage or knowing it to be likely that he will thereby outrage the modesty of the lady. There is no such averment in the F.I.R. Ex. D-1 which was earliest document written by the prosecution on the report of 'the prosecutrix. As' the statement, of the prosecutrix appears to have been developed and she did not come with clean hands and concocted, the case in the latter F.I.R. her statement cannot be believed even for a moment. I have already said above that essential in gradients of S. 354 are also not made. In view of the fact that her statement has been disbelieved and I find that no reliance can be placed on her testimony. I am of the view that the appellant cannot be convicted u/s 354 or u/s 323 I.P.C. as no reliance can be placed upon her testimony. (Para 4)
Result: Appeal allowed.
JUDGMENT
Tej Shankar, J. - This appeal is directed against the order dated 25-9-1989 passed by Shri Shambhu Singh, the then Sessions Judge, Guna, whereby the appellant has been convicted u/s 354 I.P.C. and he was released on probation and he was further directed to pay compensation of Rs. 1,000/- to Mst. Sugrabai u/s. 5 of the Probation of offenders Act, 1958.
2. The facts leading to the prosecution of the appellant shortly narrated are that the prosecute P.W. 2 Sugrabai claimed that on 26-3-1989 at 12 hours she was returning after giving food to her grandson when appellant Kripan Singh met her. She lodged an F.I.R. initially wherein she alleged that when the appellant met her he asked her where she was going whereupon the prosecutrix told as to who was he to put that question. The appellant thereafter pushed her and she sustained injury. It is claimed by the prosecution that on 30-3-1989 a written report Ex. P-2 was given by the prosecutrix to the S.P. Guna alleging that on the aforesaid date i.e. 26-3-198.9 at about 2 P.M. in the noon when she was going to give food to her grant son the accused Kripan met her and caught hold of her with evil intention. He committed rape upon he whereby Mishrya Adiwasi who was going to Sonkhara reached there and then the appellant escaped. She went to Sirsi for lodging report after the report was lodged the officer-in-charge went to the spot but she was not medically go examined. She waited for the action being taken but when action was not taken she moved this application. On this application a case was registered at No; 0/89 u/s. 376 I.P.C. and she was got medically examined by Dr. Sneh Agrawal. Usual investigation look place and ultimately charge - sheet was submitted against the appellant. The accused denied the charge and alleged that he was falsely implicated. He had paid Rs. 200/- but when he demanded from Sugrabai she did not return. Hence he was prosecuted. The prosecution examined the prosecutrix. PW. 2. PW 1 Dr. Agrawal, PW 3 Banshi, Dr. Kushwah, PW 5 Sardar, PW 6 Fosu, PW 7 D.K. Chhari. Officer-in-charge P.S. Sirsi and P.W. 8 Chandrapal Singh, Bride these witnesses documents Ex. P-14 to P-11 have also been relied upon. The accused – 2 also entered upon his defence and filed documents. The accused was tried u/s 376 but the learned trial Court convicted him u/s 354 I.P.C. Instead of imposing any sentence he was given benefit of the Probation of offenders Act. The learned Court also imposed a fine of Rs. 1.000/- under the Probation Act which was directed to be paid to Sugrabai. Hence this appeal.
3. The learned counsel for the appellant contended that the acquittal of appellant u/s 376 I.P.C. has become final and no appeal has been preferred by the State. He also contended that there is no evidence other than the statement of the prosecutrix against the appellant on the basis of which he has been convicted u/s 354 IPC. The learned counsel pointed out that once the statement of the prosecutrix is not believed the appellant could not be convicted u/s 354 and in support of his contention he pressed into in service, Haratlal v. State, of M.P.1 white this Court took the view that here commission of rape is disbelieved the offence u/ s 354 cannot be found proved on the solitary testimony of prosecutrix in absence of corroboration. The other authority relied upon is Kailash v. State of M.P.2. In that case too same view was taken by this court. In the end the learned counsel contended that if the court comes to the consultation that any offence is made though no offence is made, in that case the only offence which can be said to have been made is U/8 323 IPC because in the earlier F.I.R. Ex D-1 the only allegation was that the accused had pushed the prosecutrix. The learned counsel for the State contended that the statement of the prosecutrix makes out the case u/s 354.
4. I have considered the contentions raised before me. It does not appear necessary to detail the evidence adduced by the p
