IMPORTANT POINT
The culpable intention of the accused and the reaction of the woman are crucial in determining the outrage of modesty, and early recognition, prevention, and intervention are crucial in safeguarding children's rights and well-being.

JUDGMENT :

Shampa Dutt (Paul), J.

THE APPEAL:-

1. The present appeal has been preferred against a Judgment and Order of conviction dated 19th day of April, 2016 and sentence dated 19th day of April, 2016 passed by the Learned Additional Sessions Judge (IE Act), Berhampore, Murshidabad in Sessions Serial No. 463 of 2010 (S.T. No. 6 of March, 2012) arising out of Berhampore Police Station Case No. 86/2010 dated 12.02.2010 under Section 376(2)(f)/511 of the Indian Penal Code, 1860 convicting the appellant and sentencing him to suffer rigorous imprisonment for two years and to pay fine of Rs.10,000/- i.d. to suffer R.I. for 2 months for the offence punishable under Section 354 of Indian Penal Code and in case of payment of fine amount, the same is to be given to the victim girl as compensation under Section 357 of the Indian Penal Code. Period of detention already undergone by the convict, if any, be set-off under Section 428 of the Code of Criminal Procedure.

THE PROSECUTION:-

2. The prosecution case in brief is that:-

“On 12.02.2010 at about 6 a.m. in the morning, the victim girl went to answer nature’s call beside the primary school of her village and while she was returning to her house, she was caught hold of by the abovenamed appellant on her way and the accused tried to commit rape on her, but due to her timely shouting, the local people rushed to the spot and the accused person fled away.”

3. On the basis of the said allegations, the de facto complainant who happens to be the mother of the victim girl, lodged F.I.R. with the I.C., Berhampore Police Station on that very date and the I.C., Berhampore initiated Berhampore P.S. Case No. 86/2010 dated 12.02.2010 under Sections 376(2)(f)/511 of the Indian Penal Code against the above named appellant. The investigation culminated in filing of the Charge-sheet for the offences punishable under Sections 376(2)(f)/511 of the Indian Penal Code against the above named appellant, before the Court of the Learned Chief Judicial Magistrate, Berhampore, Murshidabad on 12.03.2010.

4. On completion of trial, the Appellant was convicted and sentenced as above.

5. 11 witnesses were examined. Documents Exhibited are, the written Complaint (Exhibit-1), statement of the victim under Section 164 Cr.P.C. (Exihibit-2), ossification report (Exhibit-3), Medical Report of the victim (Exhibit-4).

THE EVIDENCE:-

6. The victim in this case was aged only 10 years at the time of incident.

7. The ossification report (Exhibit-3) shows her age is above 9-12 years but below 14 years.

8. Prosecution witness no. 1 is the de facto complainant and father of the victim.

9. The incident occurred at around 6 a.m., when the victim child went to answer nature’s call.

10. P.W. 4 has proved the written complaint.

11. The victim has been examined as P.W. 7 in this case. She has identified the accused on dock. She has categorically stated that when she went to the toilet at about 6 a.m. on the date of incident and when she was returning, the accused/appellant hugged her from behind and touched her breasts. She has further stated that the accused touched her breasts only once and he did nothing else. She has also proved her statement made her under Section 164 Cr.P.C. and her signature on the ossification report.

12. The petitioner has relied upon judgment in Santosh Giri vs State, 2012(4) CHN (CAL) 453, decided on June 25, 2012, High Court of Calcutta, (Para 16, 17).

13. The facts and circumstances in the present appeal is entirely different from the facts & circumstances in the Judgment referred to.

14. The Supreme Court in the case of Tarkeshwar Sahu vs State of Bihar (Now Jharkhand), Appeal (Crl.) 1036 of 2005, on 29.09.2006, laid down the ingredients required to prove charge under Section 354 IPC. The Bench of Justice S. B. Sinha and Justice Dalveer Bhandari, held:-

“Section 354 IPC reads as under:-

"354. Assault or criminal force to woman with intent to outrage her modesty.- Whoever assaults or uses criminal force to any woman, intending