PREMIYA @ PREM PRAKASHversusSTATE OF RAJASTHAN

                            [2008] 13 S.C.R. 769


                     PREMIYA @ PREM PRAKASH                                A
                                      v.
                         STATE OF RAJASTHAN
                   (Criminal Appeal No. 1504 of 2008)

  "                       SEPTEMBER 22, 2008
                                                                           8
          [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
                          SHARMA J.]

           Penal Code, 1860:

            s. 354 - Essential ingredients - Held: Person assaulted .      c
      must be a woman - Accused must have used criminal force
      on woman intending thereby to outrage her modesty - Mere
      knowledge that modesty of woman is likely to be outraged is
      sufficient without any deliberate intention of having such out-
      rage alone for its object - On facts, from the evidence of pros- D
      ecutrix, it is clear that accused outraged her modesty but did
      not raped her - Thus, taking into account the evidence and
      other aspects, conviction of accused u/s 376 altered to one u!
      s. 354 - Accused having undergone two years of sentence,
      custodial sentence would be the period already undergone.        E
            s. 228-A - Object of - Held: Is to prevent social victim-
      ization or ostracism of victim of sexual offence - It makes print-
      ing or publishing name of any matter which may make known
--1   the identity of any person against whom offence u/ss 376, 376-
      A, 376-B, 376-C or 376-D is alleged or found to have been            F
      committed punishable - It would be appropriate that in the
      iudgments of Supreme Court, High Court or lower Court, name
      of victim should not be indicated - Thus, on facts name of
      victim is not mentioned.
                                                                           G
           Offence of rape - Meaning of
            . According to the prosecution case, on the fateful
      day, the appellant committed rape on the prosecutrix. She                ~
      tried to resist but the accused threatened to kill her. She
                                  769                                      H
    770        SUPREME COURT REPORTS            [2008] 13 S.C.R


A again cried for help and PW-2-aunt-in-law came there.
  Thereafter, accused fled from the place of occurrence.
  Next day FIR was lodged. The prosecution was medically
  examined. The investigation was carried out. The wit-
  nesses were examined. Trial court relying on the evidence
B of prosecutrix and PW 2, convicted the accused u/s 376
  IPC and imposed 7 years imprisonment. High Court up-
  held the order. Hence the present appeal.
          Allowing the appeal, the Court
c       HELD: 1.1 On a close reading of the evidence of the
  prosecutrix, it is clear that the accused outraged the mod-
  esty but had not raped her. Prosecutrix has not stated
  specifically about the act, but has loosely described as
  "fondling". There was no unexplained delay in lodging
  the FIR. So far as absence of the injury on the private parts
0
  of the prosecutrix is concerned, admittedly she was a
  married lady. So far as the enmity with aunt of husband of
  the prosecutrix is concerned it is un-natural that a mar-
  ried lady belonging to the rural areas would falsely impli-
  cate the accused with whom she or her husband had no
E enmity. [Paras 9 and 10) [774-D-F]
        1.2 In 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 in-
F tention of having such outrage alone for its object. There is
  no abstract conception of modesty that can apply to all
  cases. 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
G are that the person assaulted must be a woman; that the
  accused must have used criminal force on her; and that the
  criminal force must have been used on the woman intend-
  ing thereby to outrage her modesty.(Para 12) [775-F-G]
          State of Punjab v. Major Singh AIR 1967 SC 63 - re-
H ferred to.
        PREMIYA@ PREM PRAKASH v. STATE OF                771
                   RAJAS THAN

     1.3 Intention is not the sole criterion of the offence A
punishable under Section 354 IPC, and it can be commit-
ted 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 demon- B
strated like physical objects. The existence of intention
or knowledge has to be culled out from various circum-
stances 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 wit-     c
ness and her testimony should receive the same weight.
In the instant case after careful consideration of the evi-
dence, the trial court and the High Court have found the
accused guilty. But the offence is under s. 354 IPC. The
conviction of the accused is altered from Section 376 !PC
                                                            0
to Section 354 IPC. The accused has undergone nearly
two years of sentence. The occurrence is of 1987. Custo-
dial sentence shall be the period already undergone.
[Paras 13 and 14] [776-B-E]
     Co. Litt. 123-b; 1 Hon.6, 1a, 9 Edw. 4, 26 a, Hale PC 628; E
"Criminal Law" by Stephen 9th Ed. p.262; 'Encyclopoedia of
Crime and Justice' Volume 4, p 1356; Halsbury's Statutes of
England and Wales Fourth Edition Volume 12 - referred
to.
      2. Section 228-A IPC makes disclosure of identity of F
victim of certain offences punishable. Printing or publish-
ing name of any matter which may make known the iden-
tity of any person against whom an offence under Sec-
tions 376, 376-A, 376-B, 376-C or 376-D is alleged or found
to have been committed can be punished. The restriction G
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 ostra-
cism of the victim of a sexual offence for which Section
228-A has been enacted, it would be appropriate that in H
    772       SUPREME COURT REPORTS                [2008] 13 S.C.R.


A   the judgments, be it of this Court, High Court or lower
    Court, the name of the victim should not be indicated. It is
    chosen to describe her as 'victim' in the judgment. [Para
    3] (772-H; 773-A-C]
       State of Karnataka v. Puttaraja 2003 (8) Supreme 364;
B Dinesh alias Buddha v. State of Rajasthan 2006 (3) SCC 771
    - referred to.
                           Case Law Reference
          2003 (8) Supreme 364      Referred to.       3
c         2006 (3) SCC 771          Referred to.       3
          AIR 1967 SC 63            Referred to.       12
         CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
    No. 1504 of 2008
D
         From the final Judgment and Order dated 3.07.2007 of
    the High Court of Judicature for Rajasthan at Jodhpur in S.B.
    Criminal Appeal No. 243 of 1988
          Ajit Kumar Pande for the Appellant.
E
         Kumar Kartikay, Ranivijay and Jatinder Kumar Bhatia for
    the Respondent.
          The Judgment of the Court was delivered by
          Dr. ARIJIT PASAYAT, J. 1. Leave granted.
F
        2. Challenge in this appeal is to the judgment of a learned
  Single Judge of the Rajasthan High Court at Jodhpur dismiss-
  ing the appeal filed by the appellant and upholding his convic-
  tion for offence punishable under Section 376 of the Indian Pe-
G nal Code, 1860 (in short the 'IPC') and sentence of 7 years
  imprisonment as was imposed by learned Additional Sessions
  Judge No.2, Hanumangarh.
        3. We do not propose to mention narr:e of the victim. Sec-
  tion 228-A of IPC makes disclosure of identity of victim of cer-
H tain offences punishable. Printing or publishing name of any
    774       SUPREME COURT REPORTS                 [2008] 13 S.C.R.


A        5. The.learned trial Judge relied on the evidence of victim
    and Chandkauri (PW-2) who was stated to be an eye witness.
         6. In appeal, the conclusions of the learned Additional Ses-
    sions Judge for convicting the appellant and sentencing him
    were affirmed.
B
          7. In support of the appeal, learned counsel for the appel-
    !ant 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 PW-2 and
c   accused as affirmed by Laxman, the husband of the prosecu-
    trix.
         8. Learned counsel for the respondent-State on the other
    hand supported the judgments of the trial Court and the High
    Court.
                                                                        ~·
D
        9. Certain factual aspects need to be roted. 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, ad-
  mittedly she was a married lady. But on a close reading of the
  evidence of the prosecutrix, it is clear that the accused outraged
E the modesty but had not raped her. Prosecutrix has not stated
  specifically about the act, but has loosely described as "fon-
  dling"
        10. So far as the enmity with aunt of Laxman (PW-4) the
                                                                         \r
F husband   of the prosecutrix is concerned it is un-natural that a
  married lady belonging to the rural areas would falsely impli-
  cate the accused with whom she or her husband had no enmity.
        11. The offence of rape occurs in Chapter XVI of IPC. It is
  an offence affecting the human body. In that Chapter, there is a
G 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 sub-
  stantially changed by Criminal Law (Amendment) Act. 1983, and
  several new sections were introduced by the new Act, i.e. 376-
H A, 376-8, 376-C and 376-0. The fact that sweeping changes
               PREMIYA @ PREM PRAKASH v. STATE OF                775
                 RAJASTHAN [DR. ARIJIT PASAYAT, J.)

    were introduced reflects the legislative intent to curb with iron A
    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 B
    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 es-
    sential words in an indictment for rape are rapuit and carnaliter C
    cognovit; but carnaliter cognovit, nor any other circumlocution
    without the word rapuit, are not sufficient in a legal sense to
    express rape; 1Hon.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
                                                                        0
    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.Stat-
    utes of England and Wales (Fourth Edition) Volume 12, it is
    stated that even the slig~test degree of penetration is sufficient E
    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.
          12. In order to constitute the offence under Section 354 F
    IPC mere knowledge that the modesty of a woman is likely to
    be outraged is sufficient without any deliberate intention of hav-
    ing such outrage alone for its object. There is no abstract con-
    ception of modesty that can apply to all cases. (See State of
    Punjab v. Major Singh (AIR 1967 SC 63). A careful approach G
    has to be adopted by the court while dealing with a case alleg-
    ing 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;
                                                                       H
    776           SUPREME COURT REPORTS              [2008] 13 S.C.R.


A          (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.
B       13. Intention is not the sole criterion of the offence punish-
  able under Section 354 IPC, and it can be committed by a per-
  son assaulting or using criminal force to any woman, if he knows
  that by such act the modesty of the woman is likely to be af-
  fected. Knowledge and intention are essentially things of the
c 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 of-
  fence is alleged to have been committed. A victim of molesta-
  tion and indignation is in the same position as an injured wit-
D ness 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.
         14. In the instant case we alter the conviction of the ac-
E   cused 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 under-
    gone. Appellant shall be released forthwith unless required in
    custody in connection with any other case.
F          15. The appeal is allowed.
    N.J.                                            Appeal allowed.