JUDGMENT
B.G. Deo, J.
1 An interesting point involved in this appeal is when an accused has been acquitted of the offence under section 376 of the Indian Penal Code, i.e. for rape whether he can be convicted of the offence under section 354 of the Indian Penal Code on the same set of facts.
2. The appellant was acquitted of the offence under section 376 of the Indian Penal Code by the Additional Sessions Judge, Khamgaon, on 30-3-1982. There was one other accused by name Janardhan accused No. 2 who was similarly acquitted of the said charge. The allegation against both the appellants were that on 21-12-1981 at Shahapur they committed rape on P.W. 2 Rushikala. P.W. 2 Rushikala was born on 30-8-1966 and was 15 years and 8 months old on the day of the offence.
3. I have heard Shri Palshikar learned Counsel for the appellant and Shri Gadkari learned A.G.P. (Public Prosecutor) for the State.
4. The prosecution story about both the accused in secession having committed rape on P.W. 2 Rushikala was negatived by the learned Sessions Judge who observed as follows :
“P.W. 2 Rushikala was born on 30-8-1966 and was under 16 years of age on the date of the offence. Her consent is therefore not material in view of section 375. I.P.C. However, for want of corroboration from the medical expert regarding actual penetration of male organ in the private part of P.W. 2 Rushikala, I am inclined to give benefit of doubt to the accused person regarding the charge of rape or attempted rape. But the fact that each of the accused has indulged in some sort of sex play by exposing private part of Rushikala is proved beyond doubt. It is proved by the prosecution beyond doubt that the two accused must have conspired to molest Rushikala, who was major of the two girls and who had developed visible signs of female sex.”
5. Rushikala was examined four or five hours after the incident by Dr. Nalini Bala (P.W. 4). Rushikala had alleged that she was dragged and thrown on cement and she had sustained many injuries. This evidence was not supported by the medical examination. Similarly, the version of the girl that each of the two accused had completed sexual intercourse with her could not be accepted. The learned Sessions Judge observed as below :—
“It is improbable to take a view that when two young persons commit sexual intercourse with such a small girl, no injury will be caused to her private part. Absence of signs of violence on the body of Rushikala, particularly on her vulva, indicates that male organ was not thrusted inside. Perhaps no such attempt was made in this case. In any case, the matter becomes very doubtful. Because of such medical evidence, it is not possible to hold that the accused persons committed rape on the girl. Even finding of attempted rape cannot be reached without hesitation in this case.”
Having thus found that the evidence of P.W. 2 Rushikala was an exaggerated one, the learned Sessions Judge discussed the evidence of the other victim P.W. 3 Shakuntala and the circumstances of the case and came to the conclusion that some sexual play was indulged into by the appellant with Rushikala. For want of medical evidence, for showing that there was some resistance and, for want of other evidence showing that there was penetration, the learned trial Court thought it fit not to convict the appellant under section 376 of the Indian Penal Code. However, considering the offence under section 354 I.P.C., as a lesser offence than the one under section 376 of the Indian Penal Code, the learned trial Court proceeded to convict the accused under section 354 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for eighteen months and to pay fine of Rs. 200/- and in default of payment of fine to undergo rigorous imprisonment for two months Section 34, I.P.C. has also been applied by the trial Court which to my mind does not appear to be correct as it is an individual act of the appellant vis-a-vis P.W. 2 Rushikala that the alleged offence was committed.
6. The question now is whether having acquitted the accused of the offence under section 376 of the Indian Penal Code and having come to the conclusion that there was some sex play on the part of both the appellants and the victim, (the victim in all probability being the consenting party as the absence of resistance shows), whether the learned Sessions Judge was justified in convicting the appellants for the offence under section 354 of the Indian Penal Code.
7. There cannot be any gain saying of the fact that the offence under section 376 or the offence under section 354 are two distinct and different offences, the ingredients of the same being different. The offence under section 354 of the Indian Penal Code is of intentionally assaulting and using criminal force to any woman intending to outrage and knowing it to be likely that the accused will thereby outrage her modesty, while the offence under section 376, Indian Penal Code, is of committing rape. It is defined under section 375 of the Indian Penal Code. A man is said to commit “rape” who except in the case hereinafter excepted, has sexual intercourse with a woman against her will, without her consent, or with her consent obtained by putting her in fear of death, or of hurt and that penetration is sufficient to constitute the sexual intercourse necessary for the offence of rape. Obviously, the two offences are different.
8. For an offence punishable under section 354 of the Indian Penal Code, there must be (1) use of criminal force to any woman (2) intention to outrage modesty of that woman (3) knowledge that the act would outrage her modesty. The first ingredient is that of using criminal force and not merely “force”. Criminal force is defined in section 350 of the Indian Penal Code as follows:-
“Whoever intentionally uses force to any person, without the persons’ consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause, injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.”
The word consent has not been defined but what is not consent can be gathered from section 90 of the Indian Penal Code. Section 90 I.P.C. reads as follows :-
“A consent is not such a consent as is intended by any section of this Code. If the consent is given by a person under fear of injury or under a misconception of fact, and if the person doing the act knows or has reason to believe, that the consent was given in consequence of such fear or misconception; or if the consent is given by a person who, from unsoundness of mid, or intoxication is unable to understand the nature and consequence of that to which he gives his consent; of unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.”
9. The concept of consent given by the minor has undergone a modification in section 90. A person who is above twelve years of age can give a consent if there is no fear of injury or misconception of fact and if there is no unsoundness of mind and there is understanding of the nature and consequences to which the said person who is above twelve years of age but may be a minor gives his consent. Thus a girl of fifteen years can give a consent and thereby vitiate the prosecution of another person under section 354 of the Indian Penal Code for using criminal force calculated to outrage her modesty.
10. The criminal force which is necessary for being used under section 354 of the Indian Penal Code is therefore, under section 90 is not the one with consent which has been given by the victim who is under twelve year of age and who knows the consequences of the act and yet gives the consent. This aspect appears to have been lost sight of by the learned trial Court who erroneously thought that although acquitted of the offence under section 376, Indian Penal Code, the appellant could be convicted on the same set of facts and circumstances for the offence under section 354 of the Indian Penal Code for outraging modesty of P.W. 2 Rushikala. If P.W. 2 Rushikala had exaggerated and did not give evidence which was reliable enough, then every part of the story given by her should have been disbelieved and the appellant should have been also acquitted of the offence under section 354, I.P.C. That the evidence of P.W. 2 Rushikala shows traces of consent being given for sexual play should have been therefore a ground for not convicting the appellant under section 354, I.P.C.
11. The learned Public prosecutor Shri Gadkari referred me to State of Punjab v. Major Singh, , and contended that a reaction of woman outraged is not relevant consideration for the offence under section 354 of the Indian Penal Code. In that case the girl ravished was 7 1/2 months old. There was no question of any consent which therefore does not form part of the discussion of that case which is on a set of different facts. On the other hand, the learned Counsel of the appellant Shri Palshikar referred me to Sadanand Borgohain v. State of Assam and another, 1972 Cri.L.J. 658. In that case the Assam High Court has held that one of the ingredients of the offence under section 354, I.P.C. is that the accused assaults or uses criminal force to a woman intending to outrage or knowing it to be likely tat he will thereby outrage her modesty, is not proved when the victim is a consenting or voluntary party to the affair, and the accused cannot be convicted under section 354, I.P.C. In that case also a school teacher was prosecuted for the offence of rape of a female student aged about 13 or 14 years of age. The medical evidence completely belied the case of rape. While considering whether the offence under section 354 of the Indian Penal Code was made out is has been observed in that case as follows :
“One of the ingredients of this section is that the accused assaults or uses criminal force to a woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty. In this case the prosecution has not led any evidence to show that the accused intended to outrage the modesty of P.W. 6. Even if the prosecution story as deposed to by P.Ws. 2, 3 and 4, that the accused was “on the body” of P.W. 6 inside the room it would not be outraging of modesty of girl if the girl was consenting and voluntary party to the affair. There is no evidence or finding to show that she protested. But there is no finding of any of the Courts below to show that the girl was forcibly taken by the accused inside the room or that there was rape or an attempt to commit rape.”
12. The facts the aforesaid case and facts of the instant case are also some what similar. The prosecutrix has been disbelieved because there is no resistance. The story of rape on her is given a gogby for want of corroboration from the medical evidence. The fact deposed by her has been relied upon to convict the accused of the offence under section 354, I.P.C. without there being any proper case made out by the prosecuting about the same. The prosecutrix P.W. 2 Rushikala being a consenting party as it appears from the evidence and probabilities of the case, particularly in view of the medical evidence showing that there was no resistance at all and she being more than twelve years of age at the time of the incident she could not have been convicted of the offence under section 354 of the I.P.C. unless force was used against P.W. 2 Rushikala’s will and not with her consent.
13. If the prosecution under section 376 fails the same set of facts cannot ipso facto give rise to the offence under section 354, I.P.C. particularly when the victim is above twelve years and is a consenting party for the sexual play between the appellant and the victim.
14. In these circumstances I find that the learned Sessions Judge was in error in convicting the appellants under section 354, I.P.C.
15. The following order is passed. The appeal is allowed. The conviction and sentences of the appellant under section 354, I.P.C. are set aside and the appellant is acquitted of all the charges with which he was tried. He is hereby set at liberty. His bail-bond shall stand cancelled.
