JUDGMENT

S.K. MISHRA, J. — The petitioner assails the confirming judgment passed by the learned Additional Sessions Judge-cum-Special Judge, Bhubaneswar in Criminal Appeal No.52 of 1993, wherein he confirmed the conviction recorded by the learned J.M.F.C., Bhubaneswar in G.R. Case No. 2514 of 1998 convicting the present petitioner for the offence under Sections 354 and 323 of the Indian Penal Code, 1860 (hereinafter referred to as the “I.P.C.” for brevity).

2. The case of the prosecution was that on 01.10.1988 at about 9.00 A.M., the present petitioner Kelu Charan Behera along with other co-accused persons, who have since been acquitted by the learned J.M.F.C., assaulted the informant with the intention to outrage her modesty and due to such assault, she sustained injuries on her nipple, neck and other parts of her body. That night she went to the house of Sapani Mallik, the Grama Rakhi and narrated about the incident. She took shelter in his house for that night. On the next day, she lodged a report before the Inspector in Charge of Bhubaneswar Police Station on the basis of which Bhubaneswar P.S. Case No. 23 of 1988 was registered and the S.I. of Police took up investigation of the case and submitted charge-sheet against the present petitioner and three others.

In course of trial, prosecution examined six witnesses and defence examined none. Learned trial Court having considered the evidence adduced on behalf of the prosecution came to the conclu¬sion that the prosecution has been able to prove its case for commission of offence under Section 323 and 354 of the I.P.C. against the present petitioner Kelu Charan Behera and according¬ly, he convicted him for both the offences and sentenced him to undergo rigorous imprisonment for six months on each count and to pay fine of Rs.500/- on each count, in default, to undergo rigorous imprisonment for one month on each count.

3. The present petitioner challenged his conviction before the Additional Sessions Judge-cum-Special Judge, Bhubaneswar. The Addl. Sessions Judge as per his judgment dated 07.06.1996 in Criminal Appeal No. 52 of 1993 upheld the findings recorded by the learned trial Court and dismissed the appeal with a modifica¬tion of sentence. Learned Addl. Sessions Judge reduced the sub¬stantive imprisonment for the offence under section 354, I.P.C. to undergo rigorous imprisonment for three months but did not disturb the imposition of fine of Rs.500/-, in default to undergo simple imprisonment for one month more. So far as the offence under section 323, I.P.C. is concerned, learned Addl. Sessions Judge modified the sentence and directed the petitioner to pay a fine of Rs.500/- only thereby setting aside the sentence of imprisonment for the offence under section 323, I.P.C. Such confirming judgment with modification of sentence is challenged in this Revision.

4. In course of hearing, learned counsel for the petition¬er assailed the finding of the appellate Court by raising the following points:-

(i) The prosecution case cannot be believed as there are material infirmities in it and there are contradictions in the evidence of P.W.4.

(ii) The prosecution has failed to prove that the petitioner assaulted the informant with intent to outrage her modesty or with the knowledge that her modesty would be outraged; and

(iii) That the sentence imposed is excessive.

5. The learned trial Court accepted the version of P.W.4 i.e. the injured as her evidence was corroborated by the testimo¬ny of P.W.1 and medical evidence on record. Such finding of fact has been accepted by the learned appellate Court. So there is no cogent reason to disturb the findings of fact recorded by the Courts below, wherein they have come to the concurrent find¬ings that on 01.10.1998 at about 9 P.M., the petitioner assaulted the informant. But the contention of the learned counsel for the petitioner is that, even if such findings of fact is accepted, an offence under section 354 is not made out, in as much as, the pr