Shekara Vs. State of
Karnataka  INSC 365 (18 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.479 OF 2002 Shekara
.....Appellant Versus State of Karnataka ....Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the Karnataka
High Court upholding the conviction of the appellant for offence punishable
under Section 376 of the Indian Penal Code, 1860 (in short the (`IPC') and
sentence of five years rigorous imprisonment as imposed by learned IInd
Additional Sessions Judge Dakshina Kannada, Mangalore in SC No. 41 of 1993.
facts in a nutshell are as follows:
The appellant with
three other accused stood tried before the IInd Additional Sessions Judge,
Mangalore in S.C. No.41 of 1993 on the accusation that the accused No.1 about
nine months earlier to 16.10.1992 at House No.2/92, Vishnunagar of
Kelarkalabettu, Udupi Taluk committed rape of PW8, daughter of the complainant
Kalyani Bai (PW1) by inducing her to have sexual intercourse on the false
promise of marrying her and committed the offence punishable under Section 376
IPC and accused nos.1 to 4 on 16.10.1992 at about 10 pm entered into the house
of complainant and committed criminal intimidation by threatening PW1 and her
daughter (PW8) with dire consequences and threatened to do away with their
lives and thereby committed offences punishable under Sections 448, 506 read
with Section 34 IPC.
All the accused
pleaded not guilty and claimed to be tried.
examined PWs. 1 to 12 and got marked Exs. P1 to P14. The statement of the
accused under Section 313 Code of Criminal Procedure, 1973 (in short the
`Cr.P.C.') was recorded. The accused did not lead any defence evidence.
stand before the High Court was that the victim was more than 16 years of age
and she had consented to the act. The High Court did not accept the plea and
upheld the conviction as recorded.
counsel for the appellant reiterated the submissions made before the trial
court and the High Court. Learned counsel for the State on the other hand
supported the judgment of the trial court as affirmed by the High Court.
is to be noted that PW1 had produced the transfer certificate (Ex.P9) and has
stated that it pertains to the victim and her name has been entered in the
certificate. Nothing has been elicited in her cross examination to discard her
evidence that Ex.P9 pertains to the victim that is the daughter of PW 1. PW 12
had issued the transfer certificate and also stated in his evidence that he was
working as head master of the school in question. He remembered to have seen
her when she came for applying for her transfer certificate for her children
and had issued the transfer certificate to her and that Ex.P9 the transfer
certificate was issued by him. It also bears the signature of the head master.
He categorically stated that Ex.P9 was issued on the basis of entries made in
the admission register and Ex.P10(a) as the relevant entry on the basis of
which Ex.P9 was issued. As per Ex.P9 the date of birth of the prosecutrix was
10.6.1977 and the date of incident i.e. nine months prior to 16.10.1992 clearly
established that the prosecutrix was below 16 years of age. The evidence of the
prosecutrix shows that she was aged about 8 to 9 years when she was sent to
work as a maid servant.
offence of rape occurs in Chapter XVI of IPC. It is an offence affecting the
human body. In that Chapter, there is a separate heading for `Sexual offence',
which encompasses Sections 375, 376, 376-A, 376-B, 376-C, and 376-D. `Rape' is
defined in Section 375. Sections 375 and 376 have been substantially changed by
Criminal Law (Amendment) Act, 1983, and several new sections were introduced by
the new Act, i.e. 376-A, 376-B, 376-C and 376-D. The fact that sweeping changes
were introduced reflects the legislative intent to curb with iron hand, the
offence of rape which affects the dignity of a woman. The offence of rape in
its simplest term is `the ravishment of a woman, without her consent, by force,
fear or fraud', or as `the carnal knowledge of a woman by force against her
will'. `Rape' or `Raptus' is when a man hath carnal knowledge of a woman by
force and against her will (Co. Litt. 123- b); or as expressed more fully,'
rape is the carnal knowledge of any woman, above the age of particular years,
against her will; or of a woman child, under that age, with or against her
will' (Hale PC 628). The essential words in an indictment for rape are rapuit
and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution
without the word rapuit, are not sufficient in a legal sense to express rape; 1
Hon.6, 1a, 9 Edw. 4, 26 a (Hale PC 628). In the crime of rape, `carnal knowledge'
means the penetration to the slightest degree of the organ alleged to have been
carnally known by the male organ of generation (Stephen's "Criminal
Law" 9th Ed. p.262). In `Encyclopoedia of Crime and Justice' (Volume 4,
page 1356) it is stated "......even slight penetration is sufficient and
emission is unnecessary". In Halsbury's Statutes of England and Wales
(Fourth Edition) Volume 12, it is stated that even the slightest degree of
penetration is sufficient to prove sexual intercourse. It is violation with
violence of the private person of a woman-an-outrage by all means. By the very
nature of the offence it is an obnoxious act of the highest order.
order to constitute the offence under Section 354 IPC mere knowledge that the
modesty of a woman is likely to be outraged is sufficient without any
deliberate intention of having such outrage alone for its object. There is no
abstract conception of modesty that can apply to all cases. (See State of
Punjab v. Major Singh (AIR 1967 SC 63). A careful approach has to be adopted by
the court while dealing with a case alleging outrage of modesty. The essential
ingredients of the offence under Section 354 IPC are as under:
(i) that the person
assaulted must be a woman;
(ii) that the accused
must have used criminal force on her; and (iii) that the criminal force must
have been used on the woman intending thereby to outrage her modesty.
is not the sole criterion of the offence punishable under Section 354 IPC, and
it can be committed by a person assaulting or using criminal force to any
woman, if he knows that by such act the modesty of the woman is likely to be
affected. Knowledge and intention are essentially things of the mind and cannot
be demonstrated like physical objects.
The existence of
intention or knowledge has to be culled out from various circumstances in which
and upon whom the alleged offence is alleged to have been committed. A victim
of molestation and indignation is in the same position as an injured witness
and her testimony should receive the same weight. In the instant case after
careful consideration of the evidence, the trial court and the High Court have
found the accused guilty. But the offence is Section 354 IPC.
the instant case we alter the conviction of the accused from Section 376 IPC to
Section 354 IPC.
the background facts and the position in law as indicated above, the inevitable
conclusion is that the appeal is without merit deserves dismissal which we
(Dr. ARIJIT PASAYAT)
(ASOK KUMAR GANGULY)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 479 OF 2002
Shekara .. Appellant(s) Versus State of Karnataka.. Respondent(s) ORDER In
paragraph 10 of judgment dated 18th February, 2009, it shall read that the
appeal is allowed to the extent that the custodial sentence would be the period
[ASOK KUMAR GANGULY]