The culpable intention of the accused and the reaction of the woman are relevant in determining the offence under Section 354, I.P.C. Presence of physical injury is not essential, and the modesty of a woman can be outraged without it.

S. P. WANGDI, Actg. C. J. - This is an appeal under Section 378 of the Code of Criminal Procedure against acquittal of the respondent/accused of the charges under Section 376/511, I.P.C. in S.T. Case No. 11 of 2009, passed by the learned Sessions Judge, South and West Sikkim at Namchi by the impugned judgment dated 4-5-2012.

2. The respondent/accused had been charged-sheeted under the aforesaid provisions by the Sombaria P.S., West Sikkim, consequent to a written FIR submitted by one Phurba Sherpa of lower Ribdi, West Sikkim, stating that his daughter aged about 13 years had been sexually abused by the Respondent/Accused. Resultantly a case under Section 376, I.P.C. was registered against him under Sombaria Police Case No. 4(3)09 dated 23-3-2009. Upon completion of the investigation, charge-sheet under Section 376, I.P.C. was filed against the Respondent/Accused for being tried in accordance with law.

3. During the trial, the prosecution examined as many as 17 witnesses and exhibited 25 documents. The learned trial Court after considering the evidence on record came to a finding that the prosecution had failed to prove not only the charge under Section 376/511, I. P. C. but also the minor offence under Section 354, I.P.C. even if it exercised its powers under sub-section (2) of Section 222 of the Code of Criminal Procedure. These facts are sufficient for disposal of the present appeal.

4. In the appeal, the Appellant-State has sought to assail the impugned judgment only to the limited extent of the finding of the learned trial Court of having found the respondent/accused not guilty even in respect of the offence under Section 354, I.P.C. by application of its powers under sub-section (2) of Section 222 of the Code of Criminal Procedure.

5. It is relevant to note that this Court having found prima facie case had granted leave to appeal and upon hearing the State had admitted the Appeal for hearing.

6. Mr. Karma Thinlay Namgyal, the learned Additional Public Prosecutor, while pressing the Appeal submitted that the learned Trial Court while coming to the finding under challenge had failed to appreciate the overwhelming evidence appearing against the Respondent/Accused of having outraged the modesty of the victim and that the finding was perverse to the evidence on record, inasmuch as, the only ground of rejection of bringing down the charge to Section 354, I.P.C. against the respondent/accused was the absence of injuries on the body of either the accused or the victim. The learned Additional Public Prosecutor drew the attention of this Court to the evidence of PW 2-Passang Dawa Sherpa, PW 4-the victim, Passang Lhamu Sherpa, PW 5-Nim Chikey Sherpa and PW 6-Lalit Tamang and submitted that it had been established from their evidence that the victim PW 4 had been lured by the respondent/accused away from her home to a fair distance in the late evening and committed the offence of outraging the modesty of the victim. As per him, the learned trial Court had overlooked the evidence of these witnesses completely and had acquitted the respondent/accused on a ground not contemplated by law. Reference was made by him to the case of Tarakeshwar Sahu v. State of Bihar (now Jharkhand) : (2006) 8 SCC 560 and Premiya alias Prem Prakash v. State of Rajasthan : (2008) 10 SCC 81 : (AIR 2009 SC 351) in support of his contention.

7. Mr. S. S. Hamal, the learned Legal Aid Counsel representing the Respondent/Accused, supporting the impugned judgment, submitted that no reliance could be placed upon the evidence of PW 4 who was a deaf and dumb witness and in her evidence she has not stated of her being sexually assaulted by the respondent/accused in so many words. Relying upon the case of Kashiram v. State of Madhya Pradesh, AIR 2001 SC 2902 (para 21) it was submitted that the High Court while exercising its jurisdiction under Section 401, Cr. P. C. ought not to interfere with the decision of the trial Court and displace his acquittal by conviction if