Important point
Test to determine if modesty of woman was outraged was whether action of offender was such as could be perceived as one which was capable of shocking the sense of decency of a woman.

Judgment

Arijit Pasayat, J.—Appellant calls in question legality of the conviction recorded in terms of Sections 342 and 354 read with Section 34 of the Indian Penal Code, 1860 (in short ‘the IPC’) by the Trial Court, and affirmed in appeal by the impugned judgment by learned Single Judge of the Bombay High Court, Aurangabad Bench. Two appeals were disposed of by a common judgment. Criminal Appeal No. 3 of 98 was filed by the present appellant along with one Pankaj, while the connected Criminal Appeal No. 50/98 was filed by Raju @ Rajesh S. Kopekar.

2. Four accused persons faced trial. The appellants before the High Court were present appellant Raju Pandurang Mahale (A-1), Gautam (A-2), Pankaj (A-3) and Rajesh S. Kopekar (A-4). A-1 to A-4 were convicted for offences punishable under Sections 376 (2) (g) IPC and each of A-1, A-3 and A-4 was sentenced to suffer RI for 10 years and to pay fine of Rs. 500/- with default stipulation; but Gautam (A-2) was awarded 2 years RI. Additionally, A-1, A-2 and A-4 were found guilty for offences punishable under Sections 342 read with Section 34 IPC. Gautam (A-2) did not prefer any appeal questioning his conviction. A-3 alone was convicted for offence punishable under Section 292 IPC, while A-4 was convicted for offence punishable under Section 323 IPC. A-1, A-3 and A-4 were convicted for offences punishable under Sections 354 read with Section 34 IPC. For offences relatable to Section 342 read with Section 34 IPC, six months RI and for the offence punishable under Section 354 IPC one year custodial sentence was imposed.

3. The High Court by the impugned judgment set aside the conviction and sentences of A-1 and A-3 for the offences punishable under Section 376(2)(g). So far as the appeal filed by A-4 is concerned, he was convicted for the offence punishable under Section 376 IPC, though his conviction in terms of Section 376 (2)(g) was set aside. The conviction of A-1 and A-2 and A-4 for the offences punishable under Sections 342 read with Section 34 IPC, and the conviction of A-1, A-3 and A-4 for the offences punishable under Section 354 read with Section 34 IPC was also maintained with the sentence imposed. Conviction of A-4 in terms of Section 323 IPC was maintained. In essence so far as the appellant is concerned, his conviction for the offence punishable under Section 342 read with Section 34 IPC and Section 354 read with Section 34 IPC; was maintained as noted above.

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

The alleged occurrence took place on 12th and 13th January, 1996. Husband of the prosecutrix (PW-5), at the relevant time, was undergoing imprisonment for life after his conviction in a murder case. The prosecutrix, along with a daughter of two years age, was residing with her sister (PW-6). Accused No. 4 - Raju @ Rajesh s/o Sudakar Kopekar and accused No.1 - Raju s/o Pandurang Mahale were friends of the husband of prosecutrix. It was for this reason that the prosecutrix was known to them. Both these accused persons were on visiting terms with the prosecutrix and her husband used to go to their house. Raju @ Rajesh 3, Kopekar (accused No.4) was working in Railways and was required to go out of station sometimes. The prosecutrix, on request, by him, used to stay with his wife during his absence in connection with his duties.

5. The incident occurred during the midnight of 12.1.1996 and 13.1.1996. At about 9.30 p.m. of 12.1.1996, appellant Raju Pandurang Mahale came to the house of the prosecutrix and told her that Raju @ Rajesh S. Kopekar (accused No.4) had gone for night duty, and that his wife was alone at home. She was also told that wife of Raju (A-4) had called her to stay with her. The prosecutrix was reluctant to go to the house of Raju (A-4). She, however, relented on persistence of appellant Raju (A-1). She agreed to go, also for the reason that earlier, appellant Raju had taken her daughter and she had been left at the house of Raju @ Rajesh S. Kopekar