Ujesh v. State of Kerala and Seema S.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 5[TH] DAY OF JULY 2022 / 14TH ASHADHA, 1944 CRL.REV.PET NO. 1337 OF 2016** **AGAINST THE ORDER/JUDGMENT IN SC 271/2013 OF DISTRICT** **COURT & SESSIONS COURT,KOTTAYAM** ## **REVISION PETITIONER/ACCUSED:** UJESH AGED 35 YEARS S/O. RAJENDRA PILLAI, THRIVENI VEEDU, MAZHUVANCHERIMOOLA AREA, VAZHAPPALLY WEST KARA, VAZHAPPALLY WEST VILLAGE, KOTTAYAM. BY ADVS. SRI.G.SREEKUMAR (CHELUR) SRI.NANDAGOPAL S.KURUP ## **RESPONDENT/COUNTER PETITIONER:** 1 STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 SEEMA S. AGED 42 YEARS AGED 42 YEARS, W/O. SATHYAN, KOLATHARA HOUSE, VAZHPALLY WEST VILLAGE, PARAL KARA, KADAMBADAM THEKKE BANDU BHAGOM, KOTTAYAM. SRI P G MANU-SR PP THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl. R.P No.1337 of 2016 ..2.. ## **ORDER** This Crl. R.P. has been filed by the accused in S.C. No. 271/2013 on the file of the Sessions Court, Kottayam (for short, “the Court below”) challenging the framing of charge against him under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, “the SC/ST Act”). 2. The petitioner is the accused in S.C. No. 271/2013 at the Court below. The 2[nd] respondent is the de facto complainant. The offence alleged against him are punishable under Sections 323, 324, 325, 341, 354 of the IPC and Section 3(1)(xi) of the SC/ST Act 3. The prosecution case in short is that the accused, who is not a member of SC/ST, with an intention to cause hurt to the 2[nd] respondent, and also to outrage her modesty, caught hold of Crl. R.P No.1337 of 2016 **==> picture [22 x 8] intentionally omitted <==** her hair and restrained her and thereafter, assaulted her with a stone. It is further alleged that the accused stabbed on her stomach and other parts of the body. 4. The crime was registered on the basis of the First Information Statement given by the 2[nd] respondent before the Changanasserry police. Annexure A1 is the FIS. After investigation, the police filed Final Report. Annexure A2 is the final report. 5. The petitioner appeared at the court below and he was enlarged on bail. According to the petitioner, even if the entire allegations in the FIS together with materials collected during the investigation are taken in its face value, no offence under Section 354 of the IPC and Section 3(1)(xi) of the SC/ST Act are attracted. Hence, he pleaded for discharge from those sections at the stage of hearing under Section 227 of the Cr.P.C. But, after hearing the petitioner as well as the Public Prosecutor, Crl. R.P No.1337 of 2016 **==> picture [22 x 8] intentionally omitted <==** the learned Magistrate found that there are sufficient ground for proceeding against the accused under the aforesaid sections as well. Accordingly, the charge was framed against the accused under Sections 323, 324, 325, 341, 354 of the IPC and Section 3(1)(xi) of the SC/ST Act. The petitioner in this revision challenged the charge framed by the Court below to the extent of charging him with Section 3(1)(xi) of the SC/ST Act. At the time of hearing the counsel for the petitioner submitted that he is challenging the charge framed under Section 354 of the IPC as well. 6. I have heard Sri. Nandagopal, the learned counsel for the petitioner and Sri. P.G.Manu, the learned Public Prosecutor. Even though notice has been served to the 2[nd] respondent, there is no appearance. 7. The learned counsel for the petitioner submitted that there is absolutely no allegation either in Annexure A1 First Crl. R.P No.1337 of 2016 **==> picture [22 x 8] intentionally omitted <==** Information Statement or in the subsequent statement of the 2[nd] respondent recorded by the police under Section 161 of the Cr.P.C., to suggest that her modesty was either outraged or dishonored so as to attract the provisions of Section 354 of the IPC or Section 3(1)(xi) of the SC/ST Act. 8. Both Section 354 of the IPC and Section 3(1)(xi) of the SC/ST Act deals with assault or using criminal force to a woman with intent to outrage her modesty. In order to attract Section 3(1)(xi) of the SC/ST Act additionally, it has to be established that the offender is a person who does not belong to SC/ST, and the victim is a person, who is a member of SC/ST. In both provisions, the essential ingredient to attract the offence is “the intention to outrage the modesty of the women”. 9. The Apex Court had occasion to examine the meaning of the term “modesty” in **State of Punjab v. Major Singh** (AIR 1967 SC 63). It was held that the essence of a Crl. R.P No.1337 of 2016 **==> picture [22 x 8] intentionally omitted <==** woman's modesty is her sex. An example has been given in the said decision that when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman, it amounts to outraging her modesty. The Apex court in **Rupan Deol Bajaj (MRS) and another v. Kanwar Pal Singh Gill and Another [** 1995 (6) SC 194] held that the ultimate test for ascertaining whether modesty has been outraged is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. The said dictum has later been reiterated in **Mahale v. State of Raju Pandurang Maharashtra and Another** [2004 (4) SC 371]. Thus, applying the above test to the facts of the case, let me examine whether the alleged act of the petitioner, in this case, would amount to outraging her modesty. 10. A reading of the FIS would show that the petitioner and the 2[nd] respondent knew each other and they are adjacent Crl. R.P No.1337 of 2016 **==> picture [22 x 8] intentionally omitted <==** property owners. It would further show that boundary disputes existed between them. The allegations in the FIS would further show that, on the previous day of the incident, there were some wordy altercations between the husband of the 2[nd] respondent and the petitioner in connection with the boundary dispute. The alleged incident took place on the next eve. 11. The prosecution allegation is that on 22.02.2013 while the 2[nd] respondent was proceeding to Changanasserry from her home and when she reached a place called Kuttisserykadavu, the petitioner came and asked her about the dispute he had with her husband. It is further alleged that, when she proceeded further without hearing what he said, the petitioner followed her and caught hold of her hair from her backside, and hit on her right eye with a stone. It is further alleged that, when she cried, the petitioner kicked on her abdomen. Again, he beat him with his right hand on her ribs. Crl. R.P No.1337 of 2016 **==> picture [22 x 8] intentionally omitted <==** She further stated that when the people of the locality gathered there, the petitioner ran away throwing away the stone. This is the sum and substance of the allegation levelled against the petitioner by the 2[nd] respondent in the FIS. In the further statement, the 2[nd] respondent has simply added that, on account of the above-mentioned act of the petitioner, she felt humiliated. Thus, on reading of the FIS as well as the 161 statement given by the 2[nd] respondent, it is evident that the petitioner attacked and assaulted her due to the property dispute between them. The sequence of events narrated by the 2[nd] respondent would not suggest any intention on the part of the petitioner to dishonor or outrage her modesty. As stated already, the test for ascertaining whether modesty has been outraged or dishonored is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. When the above test is applied in the present case, it cannot be held that Crl. R.P No.1337 of 2016 **==> picture [22 x 8] intentionally omitted <==** the alleged act of the petitioner amounts to either dishonoring or outraging of the modesty of the 2[nd] respondent. 12. For the reasons stated above, I am of the view that there is no sufficient ground for proceeding against the accused under Section 354 of the IPC or Section 3(1)(xi) of the SC/ST Act. Accordingly, the accused is discharged from the said offences. Since the offence under Section 3(1)(xi) of the SC/ST Act is not attracted, the Court below shall take steps to transfer the case to the Jurisdictional Magistrate's Court in accordance with law. The Crl.R.P. is allowed as above. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** RMV/05/07/2022 Crl. R.P No.1337 of 2016 ..10.. ## **APPENDIX OF CRL.REV.PET. 1337/2016** PETITIONER ANNEXURES Annexure A1 CERTIFIED COPY OF THE FIRST INFORMATION REPORT DATED 23.02.2013 ALONG WITH FIRST INFORMATION STATEMENT Annexure A2 CERTIFIED COPY OF THE FINAL REPORT DATED 27.06.2013 IN SC NO. 271/2013 ON THE FILE OF THE SESSIONS COURT, KOTTAYAM