A Challenge has been made to the judgment dated 12.12.2002 passed in Session Case No.15/2002 (10/2002) titled State of Rajasthan Vs. Rajender @ Raju by the Court of Additional District and Sessions Judge (Fast Track), Behror, Alwar whereby and whereunder the accused Rajender @ Raju has been convicted for offence under Section 354 IPC and declined to grant the benefit of probation, sentenced to undergo rigorous imprisonment for a period of two years and a fine of Rs.10,000/-, in default to make payment of fine, to further undergo simple imprisonment for

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a period of six months, however, the accused has been acquitted for offence under Section 306 IPC.

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Hence, complainant-Hoshiyar Singh Yadav has filed SB Criminal Revision Petition No.388/2003, challenging the impugned judgment dated 12.12.2002 to the extent of acquitting the accused for offence under Section 306 IPC, whereas from the side of accused Rajender @ Raju, SB Criminal Appeal No.1687/2002 has been preferred, challenging his conviction and sentence for offence under Section 354 IPC. It may be noted that the accused was alleged to be boy of 18 years of age at the time of incident and during trial of criminal case, he was enlarged on bail, therefore, at the time of passing the final judgment of conviction and sentence him for a period of two years rigorous imprisonment vide judgment dated 12.12.2002, his bail bonds were continued for a period of one month, granting him opportunity to challenge his conviction and sentence by way of appeal, and on filing of the present criminal appeal, his sentence has been suspended vide order dated 07.01.2003, till the final disposal of appeal.

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Facts of the case, in brief, are that the complainant- Hoshiyar Singh submitted a written report at Police Station Behror on 15.08.2001, stating inter alia, that when her daughter Ms. Sharda went for defecation in the field at about 2:30 PM on 15.08.2001, a boy named Rajender @ Raju followed her and caught the girl and did some bad thing with her, due to which the girl screamed and hearing her cry, Smt. Subhanta Devi and Kumari Hemlata, daughter of Hoshiyar Singh (complainant) came out of their houses and saw that Rajender @ Raju was trying to do some bad

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act with Sharda, but as Rajender saw Subhanta, he ran away and due to this reason, girl came and jumped into the well and died. On receiving such written report, an FIR No.366/2001 for offences under Sections 354 and 306 IPC was registered against the accused Rajender @ Raju. After investigation, police submitted charge-sheet under Section 354 and 306 IPC before the concerned Judicial Magistrate, from where the case was committed to the Court of Session being Additional District and Sessions Judge, Behror for trial. The Sessions Court conducted trial and finally vide judgment dated 12.12.2002, has convicted the accused for offence under Section 354 IPC, but acquitted him for offence under Section 306 IPC, hence, both these petitions have come up before this Court.

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S.B. Criminal Revision Petition No. 388/2003:

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In respect of acquittal of accused from offence under Section 306 IPC, learned counsel for complainant has argued that there is evidence on record to prove that the accused outraged modesty of girl-Sharda for which accused has been held guilty for offence under Section 354 IPC and has been punished. The girl Sharda committed suicide after happening of such incident on 15.08.2001 itself by jumping into the well, therefore, the action of accused to outrage modesty of Sharda, has direct nexus with the action of Sharda to commit suicide, hence, the accused should also be held guilty for the offence of abetment of suicide by Ms. Sharda under Section 306 IPC. Learned counsel argued that findings of conviction of accused for offence under Section 354 IPC and acquittal for offence under Section 306 IPC are self contradictory

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and the trial Court has wrongly acquitted the accused for offence under Section 306 IPC, to this extent, the impugned judgment vitiates being based on misreading/ non-reading of material evidence. Therefore, it has been prayed that the impugned judgment to the extent of acquitting the accused for offence under Section 306 IPC be quashed and set aside and the accused be held guilty for offence under Section 306 IPC as well.

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Heard. Considered.

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It is settled proposition of law that in order to bring home a charge under Section 306 IPC, the prosecution has to prove that the accused abetted the victim for commission of such offence and the abetment must be in terms of Section 107 IPC. It has to be proved that the accused instigated the victim to commit suicide and had an intention that by his act, omission or conspiracy, the victim shall commit suicide. It has to be established that the act of instigation by the accused must be of such intention that it is intended to push the victim/ deceased to such a position under which he/ she has no choice except to commit suicide. Thus, to held the accused guilty for offence under Section 306 IPC, the abetment must be in the nature of being one under Section 107 IPC.

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The Hon’ble Apex Court in the case of Mariano Anto Bruno & Anr. Vs. The Inspector of Police, [2022 SCC OnLIne SC 1387] held in para No. 36 and 38 thus:

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“36. To convict a person a person under Section 306 IPC, there has to be clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide finding no other option and the act must be such reflecting intention of the accused to push

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deceased into such a position that he commits suicide. The prosecution has to establish beyond reasonsbale doubt that the deceaesd committed suicide and Appellant No.1 abetted the commission of suicide of the deceased. In the present case, both the elements are absent.

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This Court has time and again reiterated that before convicting an accused under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.

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In case of Mohit Singhal Vs. State of Uttrakhand, [2023

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SCC OnLine SC 1598], the Apex Court observed thus:

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“to attract the abatement of a thing in view of Section 107 read with 306 of IPC, there must be instigation in some form on the part of accused to cause the deceased to commit suicide. The accused must have mens rea to instigate the deceased to commit suicide. It has been observed that “the act of instigation must be of such intensity that it is intended to push the deceased to such a position under which he or she has no choice but to commit suicide.” Such instigation must be in close proximity to the act of committing suicide.”

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Learned trial Court in para No.18 of the impugned judgment has discussed the evidence of prosecution to prove the guilt of accused for offence under Section 306 IPC. On analytical analysis of the evidence of prosecution, more particularly, on the basis of statements of PW2 Hemlata, PW3 Subhanta who are eye witnesses to the incident and having adverted to statements of PW1 Hoshiyar Singh and PW4 Kamla, parents of deceased Sharda, it has been observed by the trial Court that after occurrence of

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incident on 15.08.2001 at agricultural field, the victim girl (now deceased) first went her home with her elder sister Hemlata and her Auntie Smt. Subhanta. It was observed that at home, her parents started beating their head by saying that due to such incident, their image and reputation in the society would ruin and thereafter only the girl went from home and jumped into the well. The trial Court observed that it is not that case where the girl soon after incident, directly went to the well for committing suicide and jumped therein, but it is a case where girl saw her parents to be screaming and beating their head having an apprehension to ruin their social reputation, thereafter having seen such circumstances, under overwhelming of her emotions, the girl went from home and jumped into the well to commit suicide. Learned trial Court has observed that the accused had no intention to instigate the victim to commit suicide, when he tried to outrage her modesty and there is no iota of evidence of prosecution in this regard. Thus, after due appreciation of the evidence on record as also considering the essential ingredients of Section 107 and 306 IPC so also having enlightened with the judicial precedence expounded in the judgments relied upon by the trial Court, a fact finding has been recorded bythe trial Court that mere act of the accused that he was clinging and embracing the girl may not be treated as an act of instigation, having an intention to push the girl to commit suicide. Accordingly, the trial Court concluded that there is no direct nexus of the act of accused, with the action of victim girl to commit suicide and essential element of instigation in terms of

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Section 107 are absent, hence, accused has not been held guilty for offence under Section 306 IPC.

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In revisional jurisdiction of High Court while examining an order of acquittal, scope of interference is extremely narrow and it ought to be exercised only in a case where the trial court has committed manifest error of law or procedure or overlooked and ignored relevant material from consideration thereby caused miscarriage of justice. Re-appreciation of entire evidence by the High Court, in exercise of its revisional jurisdiction, more particularly against the judgment of acquittal, ordinarily is not permitted. Such power can be exercised only in exceptional circumstances where grave injustice has occurred. The language of Section 401 CrPC makes it clear that no power vested in the High Court to convert a finding of acquittal into one of conviction. To buttress such proposition of law reference can be made to the judgment passed in case of Venkatesan Vs. Rani [(2013)14 SCC 207 ].

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In the present case the incident occurred on 15.08.2001, that is about 23 years ago, and the counsel for complainant could not point out any manifest error in following the procedure or law or occurrence of miscarriage of justice warranting interference with the impugned judgment to upset the finding of acquittal by the High Court in exercise of its revisional jurisdiction. In the judgment passed by the Apex Court in case of Johar vs. Mangal

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Prasad [(AIR 2008 SC 1165 ], the jurisdiction of High Court in criminal revision, against acquittal has been discussed. According

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to that principle, this Court is not inclined to interfere with findings of acquittal of the trial Court.

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In case of Ramu @ Ram Kumar v. Jagannath [AIR 1994 SC 26 ] the Apex Court has held that revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complainant.

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The Apex Court has also observed that the Revisional court would not interfere in revision petition simply because a different view other than the trial court’s view can be taken on reappreciation of evidence on record. 13. The State has not preferred any appeal against the acquittal of accused for offence under Section 306 IPC. 14. Therefore, in view of aforesaid discussion of fact and law, this Court is of the opinion that findings recorded by the trial Court to acquit the accused from offence under Section 306 IPC are well reasoned and within parameters of law. There is no legal infirmity or patent illegality in the judgment impugned, which warrants interference by this Court in exercise of its revisional jurisdiction. Re-appreciation of evidence by the High Court, in exercise of its revisional powers against the order of acquittal, is not permissible. The High Court, in the light of Sub-Section 3 of Section 401 Cr.P.C. is not authorized to convert a finding of acquittal into one of conviction. Therefore, for the afore-referred reasons, this Court is not inclined to interfere with the impugned judgment in respect of acquittal of the accused for offence under Section 306 IPC.

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Accordingly, the revision petition filed by the complainant is hereby dismissed.

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S.B. Criminal Appeal No. 1687/2002:

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This Criminal Appeal has been filed by the accused-Rajendra @ Raju, challenging his conviction and awarding sentence for a period of two years rigorous imprisonment with fine of Rs.10,000/-, holding him guilty for committing offence under Section 354 IPC.

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Counsel for accused-appellant contended that even if entire evidence of prosecution is believed in toto, then also at the most the allegation against the appellant comes to the effect that he tried to hug the girl in his arms and nothing more than that. Such an act of accused-appellant may not be assumed to constitute offence under Section 354 IPC. Counsel for accused-appellant submits that the term “Outrage modesty of a Woman” is not defined in law and the essential ingredients to held the appellant guilty for offence under Section 354 are not established, but the trial Court did not ponder over the proposition of law and committed an error of fact as also of law in convicting the appellant for offence so also awarding maximum sentence against the appellant to undergo rigorous imprisonment for a period of two years, for an act of hugging the girl. Thus, counsel for appellant prayed that firstly the conviction of appellant for offence under Section 354 IPC be quashed or in alternative, any other appropriate and just order be passed, reducing the sentence of appellant, by enhancing the amount of fine.

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Per contra, learned counsel for complainant and learned Pubic Prosecutor supported the impugned judgment, convicting

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the accused appellant for offence under Section 354 IPC and prayed to dismiss the appeal.

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Before dealing with the contention of counsel for accusedappellant, it would be appropriate to look into the essential ingredients of Section 354 IPC, which reads as under:-

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“ 354. Assault or criminal force to woman with intent to outrage her modesty.— Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.”

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From perusal of the provision of section 354 IPC, the essential ingredients to constitute an offence under this Section are as follows:

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(i) The assault must be of a woman,

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(ii) The accused must have used criminal force on her, and (iii) The criminal force must have been used by the accused on the woman, intending thereby to outrage her modesty.

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Thus, to constitute an offence under Section 354 IPC in

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respect of indecent assault of a woman, intention of accused must be to outrage her modesty and he used such criminal force or assault to fulfill his such an intention.

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Coming to the factual aspect of the present case, the allegation against accused is that he followed the girl, when she went for defecation in the field at about 2:30 PM on 15.08.2001 and caught the girl so also did some bad things with her. None of witness of prosecution states to see that the accused followed the girl. The eye witnesses to the incident is, Kumari Hemlala (Elder sister of girl) and Smt. Shubanta (Auntie of girl). According to

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statements of Kumari Hemlata (PW2) and Smt. Shubanta (PW3), both came out from their houses hearing the screaming and cries of girl-Sharda and saw that accused was clinging with her and trying to embrace her. According to their statements, the accused ran away soon after seeing Shubanta. Complainant Hoshiyar Singh, father of girl, and Smt. Kamla, Mother of girl, (PW1 and PW4) are not eye witnesses and they made statements as heard about the incident from Shubanta and Hemlata. Thus, if statements of eye witnesses PW2 and PW3 are accepted as it is, what the accused did bad act with the girl is that, he hold the girl tightly in his arms to hug with her. It is not that case, where the accused-appellant taken off his clothes or strip off clothes of girl, making an attempt to rape her or did any such intensified act, which may be treated to have an intention to do intercourse with the girl. Even both were not found in a laying posture on the ground of field but only it was noticed that accused was forcefully trying to hug the girl in his arms. There is no circumstantial evidence showing an intention of the appellant accused to use assault or criminal force on the girl to outrage her modesty, what to say to have an attempt to commit rape. There is no evidence that accused made any preparation even, tryingto have intercourse with the girl.

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The age of girl on the date of incident i.e. 15.08.2001 has been stated to be of 14 years and according to counsel for appellant, accused was of age below 18 years. Although, no plea to claim the age of accused being Juvenile i.e. below 18 years was

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taken before the trial Court, however, the admitted age of accused has been taken to be of 18 years.

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Be that as it may, the accused and victim girl fall in proximity of young age. The issue comes for consideration before this Court is whether for an act of hugging of a girl of 14 years by a young boy of 18 years, is amount to outrage her modesty in terms of Section 354 IPC, if yes, the punishment awarded to accused is just and proper? 22. It is true that essence of a woman’s modesty is her sex. An intention of the accused to outrage her modesty is must to constitute offence under Section 354. The code does not define term “modesty”. However, the modesty of a woman is more or less her physical body with her private parts and whosoever uses criminal force on woman, with an intention to outrage her modesty, may be held guilty to commit an offence punishable under Section 354 IPC. Thus, the culpable intention of accused, to outrage the modesty of woman is crux of the matter. Mere intention to commit an offence, not followed by an act, cannot constitute an offence. Unless the accused does some deeds by doing external acts which show the progress or preparation to fulfill his intention to outrage the modesty of a woman, it may not be held that the accused is guilty for committing the offence and in that situation, at the most he may be held guilty with the aid of Section 511 IPC. Nonetheless, even an incident assault by an accused on woman, may fall in the category of outraging the modesty of the woman.

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Having scrutinized the evidence of prosecution, more particularly statements of eye witnesses PW2 and PW3, it has come on record that the accused made an attempt to hug the girl forcefully to caught hold of her tightly in his arms. There is no more evidence to do any other external act like kissing, attempting to strip off her clothes or making her naked in any manner showing preparation to do intercourse with her. At the most, accused who is young boy of 18 years, hugged the girl of 14 years of age tightly in his arms to fulfill his lust of sex. In such view of the matter, accused committed an indecent assault on the minor girl, due to which she make hue and cry and soon thereafter having seen Smt. Shubanta, accused ran away from the spot. Thus, accused at least liable to be held guilty for commission of an offence under Section 354 IPC read with Section 511 IPC. Therefore, this Court is not inclined to set aside the findings of the trial Court to convict the accused appellant for an offence under Section 354 IPC.

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Coming to the issue of awarding sentence against the appellant accused in the present case, the trial Court has sentenced the appellant to undergo rigorous imprisonment for a period of two years along with fine of Rs.10,000/-. The trial Court did not extended the benefit of probation to the accused mainly for the reason that the victim girl committed suicide after such incident, although, it was his first offence and accused was a student, young boy of 18 years. It is an undisputed fact that young daughter of complainant, committed suicide after this incident but as has been discussed by the trial Court so also

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affirmed by this Court while upholding the acquittal of accused for offence under Section 306 IPC that the accused is not responsible for the suicide, rather there are several other attending circumstances, due to which the victim girl committed suicide by jumping into the well. Accused has already underwent to the custody from 20.10.2001 to 05.11.2001. The incident is of 15.08.2001 and thereafter about more than 22 years have passed. During these years, appellant-accused has suffered trauma of the criminal prosecution and his conviction.

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In case of Omanakkuttan Vs. State of Kerala [(2021)12 SCC 92 ], wherein the Apex Court reduced the sentence awarded to accused punished for offences u/s.308 and 326 IPC for the period already undergone. Reference may also been made to the judgment in case of Murali Vs. State [(2021)1 SCC 726 ] wherein the Apex Court considering the fact that appellants have no other criminal antecedent the punishment for offences u/s. 147, 148, 341, 352, 323, 324, 307 and 34 IPC was reduced to the period already undergone.

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The Apex Court in case of Alister Anthony Pareira Vs. State of Maharashtra [(2012) 2 SCC 648] , on the point of awarding sentence against the accused, made following observations:

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“There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstance.”

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In case of Haripada Das Vs. State of West Bengal

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[(1998) 9 SCC 678] , the Hon’ble Supreme Court on the point of awarding sentence, made following observations:

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“…. considering the fact that the respondent had already undergone detention for some period and the case is pending for a pretty long time for which he had suffered both financial hardship and mental agony and also considering the fact that he had been released on bail as far back as on 17-1-1986, we feel that the ends of justice will met in the facts of the case if the sentence is reduced to the period already undergone….”

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Taking into consideration the nature of accusation against the accused-appellant on account of which he has been convicted for offence under Section 354 IPC and all other attending circumstances referred hereinabove, as also in view of proposition of law, in the opinion of this Court that interest of justice would be served, if the period of sentence of accused-appellant is reduced to the period already undergone and the amount of fine of Rs.10,000/- is enhanced to the tune of Rs.50,000/-, which should be paid to the complainant party as compensation under Section 357 Cr.P.C., hence, the following order:

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While upholding the conviction of appellant accused for offence under Section 354 IPC, his sentence is reduced to the period already undergone, however, instead of fine of Rs.10,000/accused appellant shall pay an amount of Rs.50,000/-, which would be paid to the complainant party as compensation. The sentence awarded against the accused by the trial Court stands modified accordingly. The amount of compensation shall be paid by the appellant within period of 90 days.

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