REPORTABLE

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

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge 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  the

Indian Penal 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  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)

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Supreme 364 and Dinesh alias Buddha v. State of Rajasthan

(2006 (3) SCC 771).  

4. Background 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

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accused  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 above.  

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

Sessions  Judge  for  convicting  the  appellant  and sentencing

him were affirmed.  

7. In  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

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PW-2 and accused as affirmed by Laxman, the husband of the

prosecutrix.   

8. Learned counsel  for the respondent-State on the other

hand supported the judgments of the trial Court and the High

Court.  

9. Certain 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”  

10. So 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.  

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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

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

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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.  

12. 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  intention  of

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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.

13. Intention  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

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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.  

14. In 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.    

15. The appeal is allowed.  

……..…………………..……….J. (Dr. ARIJIT PASAYAT)

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…….…………………….……….J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, September 22, 2008

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