Premiya @ Prem
Prakash Vs. State of Rajasthan  INSC 1610 (22 September 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising
out of (SLP (Crl.) No.7428 of 2007) Premiya @ Prem Prakash ....Appellant Versus
State of Rajasthan ....Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the Rajasthan
High Court at Jodhpur dismissing the appeal filed by the appellant and upholding
his conviction for offence punishable under Section 376 of theIndian Penal
Code, 1860 (in short the `IPC') and sentence of 7 years imprisonment as was
imposed by learned Additional Sessions Judge No.2, Hanumangarh.
do not propose to mention name of the victim.
Section 228-A of IPC
makes disclosure of identity of victim of certain offences punishable. Printing
or publishing name of any matter which may make known the identity of any
person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D
is alleged or found to have been committed can be punished. True it is, the
restriction, does not relate to printing or publication of judgment by High
Court or Supreme Court. But keeping in view the social object of preventing
social victimization or ostracism of the victim of a sexual offence for which
Section 228-A has been enacted, it would be appropriate that in the judgments,
be it of this Court, High Court or lower Court, the name of the victim should
not be indicated. We have chosen to describe her as `victim' in the judgment.
(See State of Karnataka v. Puttaraja (2003 (8) 2Supreme 364 and Dinesh alias
Buddha v. State of Rajasthan (2006 (3) SCC 771).
facts in a nutshell are as follows:
On 26.8.1987 at 1.30
p.m. the prosecutrix filed a report (Ex.P-1) that on the preceding day i.e.
25.8.1987 in the morning at about 9.00 or 9.30 a.m. that when she went to the
field of Bhinya Raika and was returning back to village Biradhwal, accused
Premiya all of a sudden came and caught hold of her. Thereafter, the accused
Premiya threw her on the ground, put off his "Paijama", lifted her
"Ghaghra" and committed rape on her. When she tried to resist,
accused Premiya gave a blow on her eye and threatened to kill her, if she made
any sound. When she again cried for help, her aunt- in-law Mst. Chandkauri
(PW.2) came and challenged him.
Upon this, accused
Premiya fled away from the place of occurrence. The medical examination of
prosecutrix was got conducted on 26.8.1987 by doctor at 2.00 PM. After
investigation, the challan was filed against the accused. The 3accused was
charged for offence punishable under Section 376 IPC to which he pleaded not
guilty. During trial, the prosecution examined seven witnesses. The statement
of accused Premiya was recorded under Section 313 of the Code of Criminal
Procedure, 1973. He produced one Ramlal as DW1 in his defence. After hearing,
the learned trial Judge convicted and sentenced the accused Premiya as noted
learned trial Judge relied on the evidence of victim and Chandkauri (PW-2) who
was stated to be an eye witness.
appeal, the conclusions of the learned Additional Sessions Judge for convicting
the appellant and sentencing him were affirmed.
support of the appeal, learned counsel for the appellant submitted that the
High Court did not consider very relevant aspects viz. the delay in lodging the
First Information Report, absence of injury and the admitted enmity between
4PW-2 and accused as affirmed by Laxman, the husband of the prosecutrix.
counsel for the respondent-State on the other hand supported the judgments of
the trial Court and the High Court.
factual aspects need to be noted. There was no unexplained delay in lodging the
FIR. So far as absence of the injury on the private parts of the prosecutrix is
concerned, admittedly she was a married lady. But on a close reading of the
evidence of the prosecutrix, it is clear that the accused outraged the modesty
but had not raped her. Prosecutrix has not stated specifically about the act,
but has loosely described as "fondling"
far as the enmity with aunt of Laxman (PW-4) the husband of the prosecutrix is
concerned it is un-natural that a married lady belonging to the rural areas
would falsely implicate the accused with whom she or her husband had no enmity.
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 any 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 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 accused has undergone nearly two years of sentence. The
occurrence is of 1987. Custodial sentence shall be the period already
undergone. Appellant shall be released forthwith unless required in custody in
connection with any other case.
appeal is allowed.
(Dr. ARIJIT PASAYAT)
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