The importance of scrutinizing evidence from interested witnesses and exercising caution in reappreciating evidence during revisional jurisdiction.

ORDER :

The petitioner has challenged his conviction and sentence of RI for 2 years under section 354 of the Indian Penal Code (in short, 'IPC') passed in Sessions Trial Case No. 70 of 2009.

2. Criminal Appeal No. 58 of 2011 filed by the petitioner against the aforesaid order of his conviction and sentence has been dismissed by the judgment dated 22nd April 2015.

3. On an allegation that the petitioner entered the house of Feku Nayak in the night of 23rd December 2007 in drunken condition, caught his wife and tore her blouse and attempted to sexually assault her, a complaint case was filed by the victim lady. After inquiry under section 202 of the Code of Criminal Procedure (in short, CrPC), the learned Magistrate found a prima facie case made out under section 376/511 IPC and the case was committed to the Court of Sessions.

4. A charge was framed under section 376/511 IPC against the petitioner and the trial commenced in which the prosecution has examined four witnesses in support of the charge – complainant has examined herself as PW1.

5. The witnesses who were produced by the defence stated that Dashrath Rautia was assaulted by Feku Nayak, Yogender Nayak and one another near the house of Keswar Nayak at about 8:00 pm in the night of 23 rd December 2007. On the basis of such evidence by DW1 and DW2, the defence has set up a case that as a counter-blast to the aforesaid incident the complainant has lodged a false case after seven days.

6. As noticed above, Criminal Appeal No. 58 of 2011 filed by the petitioner has been dismissed.

7. The offence under section 354 IPC involves assault or use of criminal force on a woman to outrage her modesty. Assault has been defined under section 351 IPC to mean any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person. The offence of “criminal force” means intentional use of force to any person without that person's consent in order to committing of any offence or intending by the use of such force to cause or knowing it to be likely that by use of such force it will cause injury, fear or annoyance to the person to whom the force is used.

8. The modesty of a woman which is reflected in her conduct and behaviour is a kind of virtue of a woman. It is recognised in all religions and the law also protects modesty of a woman. The acts of the petitioner to catch hold of the victim lady, tearing her clothes and attempting to undress her would undoubtedly attract the offence under section 354 IPC.

9. In “Aman Kumar v. State of Haryana” (2004) 4 SCC 379 the Hon'ble Supreme Court has explained the offence under section 354 IPC, as under:

“13. There is no material to show that the accused were determined to have sexual intercourse in all events. In the aforesaid background, the offence cannot be said to be an attempt to commit rape to attract culpability under Sections 376/511 IPC. But the case is certainly one of indecent assault upon a woman. Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined. 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 dress 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 suc