JUDGMENT
A. Pasayat, J.
1. Petitioner challenges his conviction Under Section 376 of the Indian Penal Code, 1860 (in short IPC) and sentence of five years rigorous imprisonment and fine of Rs. 500/-, in default to undergo R. I. for a further period of five months, as awarded by the learned Assistant Sessions Judge-cum -Additional Subordinate Judge, Puri and affirmed by the learned 2nd Additional Sessions Judge, Puri.
2. Background facts as indicated by the prosecution are that on 17-6-1986 at about 9 p. m. taking, advantage of absence of inmates of the house of informant Baratun Bibr (PW 1), the petitioner committed rape 00 her. According to the informant at about 9 p. m. she went to the backyard to attend the call of nature and while returning, the petitioner suddenly caught hold of her from her backside and carried her to the verandah,, gagged her mouth and committed sexual intercourse with her forcibly. It is stated that the husband of the informant who had been to attend a feast came back and found the act and tried to assault the accused, who fled away. The matter was immediately brought to the notice of villagers, who wanted to amicably settle the matter and therefore, there was some delay in lodging the information with the police. F. I. R. was lodged on 19-6-1986. During investigation1 the accused was arrested, both informant and accused were sent for medical examination and after completion of investigation, charge-sheet was submitted against the petitioner.
3. Accused petitioner took the plea of false implication.
4. In order to further its case prosecution examined eight witnesses. PW 1 is the prosecutrix, PW 2 is her husband, PWs 4, 5 and 6 are post-occurrence witnesses, PWs 3 and 7 are the doctors who examined the accused and the informant respectively and PW 8 is the Investigating Officer.
5. Both Courts below found that the charge against the accused was established beyond shadow of doubt and the accused was, therefore, convicted and sentenced as aforesaid.
6. Main plank of the petitioner’s argument is that the evidence is so discrepant that it would be travesty of justice if the petitioner is convicted It is submitted that there was no injury on either the informant or the accused which is apparently possible when there was consent by the informant. It is also submitted that the . prosecution version is so tainted, with falsehood that it would be unsafe to rely on it.
The learned counsel for the State, however, submits that there is no scope for taking a liberal view because the Courts below have come to a definite finding about guilt of the accused on a careful appraisal of the evidence.
7. In order to bring home the charge Under Section 376 consent is to be ruled out. The offence of rape is committed when (i) a man has sexual intercourse with a woman, not being his wife ; (ii) in any of the circumstances enumerated in the five clauses of Section 375. The offence of rape in its simplest terms may be stated as ravishment of a woman, without her consent, by force, fear or fraud. (See Mezley and Whitley’s Law-Dictionary, Seventh Edition). It is carnal knowledge of a woman by force against her will. (Wharton’s Law Lexicon, 14th Edition).
8. In cases involving rape the following two questions arise, i, e. (i) was the woman at the time of act under the prescribed age aforesaid ? and (ii) was there penetration ? To establish the offence of rape it must be proved that the accused had sexual intercourse with the woman in question and the said sexual intercourse was under circumstances falling under any of the five descriptions specified in Section 375, the woman was not the wife of the accused (or if she was his wife, she was under 15 years of age); and there was penetration, it is for the prosecution to prove each of the above elements. Undisputedly, in the instant case prosecutrix was more than 18 years of age at the relevant time Penetration being an essential ingredient of the offence of rape, there must be proof of actual penetration. The word penetration’ is not however, necessarily to be used. The only witness who can prove that is the prosecutrix. A conviction for rape depends almost entirely on the evidence of the prosecutrix so far as essential ingredients are concerned, the other evidence being only corroborative.
9. It is always desirable that the accused and the prosecutrix, in a case of rape, should be medically examined as soon as possible. If this is not done as quickly as possible, valuable evidence, bearing on the guilt of the accused, may be lost. In the instant case, admittedly, the medical examination was held after considerable lapse of time.
10. A conspectus of the evidence of the prosecutrix so far as the aspect of penetration is concerned shows that the same is not borne out from her statement. Even though the use of the word ‘penetration’ is not required, yet it must be inferable from the evidence that it was so meant. Vaguely stating that the accused had sexual intercourse would not be a substitute for the statutory mandate as contained in the Explanation to Section 375 without indication about penetration aspect. The evidence of the prosecutrix is lacking in this aspect Therefore, the offence of rape is not made out against the petitioner. But” the materials on record clearly make out a case Under Section 354, IPC. The essential elements of Section 354 and the requisite background facts exist in this case. The petitioner is also not prejudiced because while bringing to his notice the particulars relating to allegations of offence of rape, the materials which are essential ingredients of an offence Under Section 354 were also indicated. In order to constitute an offence Under Section 354, there must be an assault, or use of criminal force, to any woman with the intention or knowledge that the woman’s modesty would be outraged. The evidence on record clearly establishes the offence. Therefore, the charge Under Section 376, IPC is altered to one Under Section 354, IPC and the petitioner is convicted thereunder.
11. The residual question is what would be the appropriate sentence. The offence definitely is of a very indecent nature. Modesty is an attribute of a female human being and an offence is made out when a person assaults or uses criminal force on her, intending to outrage, or knowing it to be likely that he will thereby outrage her modesty. The section is intended to promote morality. The maximum sentence prescribed is two years’ imprisonment or fine or both. The admitted position is that the petitioner a married person who belongs to lower strata of society, is the sole bread earner of his family and has children. He was in his early twenties at the time of occurrence. He was in custody for about six weeks. No useful purpose whould be served by sending him to custody. The uncalled for heat of passion is likely to have been cooled of by social castigation. Considering the above aspects, I restrict the sentence to the period already undergone.
The criminal revision is, accordingly, disposed of.