S.K. Mishra, J.
1. The petitioner assails the confirming judgment passed by the learned Additional Sessions Judge-cum-Special Judge, Bhubaneswar in Criminal Appeal No. 52 of 1993, wherein he confirmed the conviction recorded by the learned J.M.F.C., Bhubaneswar in G.R. Case No. 2514 of 1998 convicting the present petitioner for the offence under Sections 354 and 323 of the Indian Penal Code, 1860 (hereinafter referred to as the 'I.P.C.' for brevity).
2. The case of the prosecution was that on 01.10.1988 at about 9.00 A.M., the present petitioner Kelu Charan Behera along with other co-accused persons, who have since been acquitted by the learned J.M.F.C., assaulted the informant with the intention to outrage her modesty and due to such assault, she sustained injuries on her nipple, neck and other parts of her body. That night she went to the house of Sapani Mallik, the Grama Rakhi and narrated about the incident. She took shelter in his house for that night. On the next day, she lodged a report before the Inspector in Charge of Bhubaneswar Police Station on the basis of which Bhubaneswar P.S. Case No. 23 of 1988 was registered and the S.I. of Police took up investigation of the case and submitted charge-sheet against the present petitioner and three others.
In course of trial, prosecution examined six witnesses and defence examined none. Learned trial Court having considered the evidence adduced on behalf of the prosecution came to the conclusion that the prosecution has been able to prove its case for commission of offence under Section 323 and 354 of the I.P.C. against the present petitioner Kelu Charan Behera and accordingly, he convicted him for both the offences and sentenced him to undergo rigorous imprisonment for six months on each count and to pay fine of Rs. 500/- on each count, in default, to undergo rigorous imprisonment for one month on each count.
3. The present petitioner challenged his conviction before the Additional Sessions Judge-cum-Special Judge, Bhubaneswar. The Addl. Sessions Judge as per his judgment dated 07.06.1996 in Criminal Appeal No. 52 of 1993 upheld the findings recorded by the learned trial Court and dismissed the appeal with a modification of sentence. Learned Addl. Sessions Judge reduced the substantive imprisonment for the offence under Section 354, I.P.C. to undergo rigorous imprisonment for three months but did not disturb the imposition of fine of Rs. 500/-, in default to undergo simple imprisonment for one month more. So far as the offence under Section 323, I.P.C. is concerned, learned Addl. Sessions Judge modified the sentence and directed the petitioner to pay a fine of Rs. 500/-only thereby setting aside the sentence of imprisonment for the offence under Section 323, I.P.C. Such confirming judgment with modification of sentence is challenged in this Revision.
4. In course of hearing, learned Counsel for the petitioner assailed the finding of the appellate Court by raising the following points:
(i) The prosecution case cannot be believed as there are material infirmities in it and there are contradictions in the evidence of P.W. 4.
(ii) The prosecution has failed to prove that the petitioner assaulted the informant with intent to outrage her modesty or with the knowledge that her modesty would be outraged; and
(iii) That the sentence imposed is excessive.
5. The learned trial Court accepted the version of P.W. 4 i.e. the injured as her evidence was corroborated by the testimony of P.W.1 and medical evidence on record. Such finding of fact has been accepted by the learned appellate Court. So there is no cogent reason to disturb the findings of fact recorded by the Courts below, wherein they have come to the concurrent findings that on 01.10.1998 at about 9 P.M., the petitioner assaulted the informant. But the contention of the learned Counsel for the petitioner is that, even if such findings of fact is accepted, an offence under Section 354 is not made out, in as much as, the prosecution has failed to prove that the accused petitioner had the intention of outraging the modesty of the injured. In this connection, it is apposite to refer to the evidence of P.W.4. P.W. 4 has stated in her examination-in-chief:
xxx accused Bimbadhar is my husband. Accused Dhruba is the younger brother of my husband. Accused Laxmidhar is my father-in-law, accused Kelu Charan is the uncle of my husband (Malasura). About two years back in the night at about 9 P.M. in our house, the incident took place. There was quarrel between my husband and myself. Accused Kelu came and told other accused persons to assault me by means of 'Katha' (i.e. Lathi). Accused Kelu put that Katha on my neck and stood on that Katha. I was on the ground. The wife of Kelu dragged away Kelu. I sustained bleeding injury on my left nipple due to action of the accused persons. I lodged the F.I.R. xxx
6. Coming to examine the contention that the above accepted fact does not constitute an offence under Section 354 of the I.P.C., it is apposite to refer to the said section, which reads as under:
354. Assault or criminal force to women with intent to outrage her modesty - Whoever assaults or uses criminal force to any women, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
The word 'modesty' has not been defined in the Indian Penal Code. Hon'ble Apex Court in the case of Rupan Deol Bajaj (Mrs.) and Anr. v. Kanwar Pal Singh Gill and Anr. 1995 S.C.C. (Crl.) 1059 has relied upon the dictionary meaning of the word 'modesty'. The Apex Court further relied upon the case of State of Punjab v. Major Singh : AIR 1967 SC 63, wherein the apex Court has held that when any act done, in the presence of a woman, is clearly suggestive of sex according to the common notions of mankind, it must fall within the mischief of Section 354, I.P.C. The Apex Court further held that it was needless to say, the 'common notions of mankind' referred to by the learned Judge have to be gauged by contemporary societal standards. It was observed that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. Thus, relying on earlier case, the Apex Court in Rupan Deol Bajaj's (supra) case 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. Applying the above test to the reported case, the Apex Court held that it must be held that the alleged act of the respondent in slapping the complainant on her posterior amounted to 'outraging of her modesty' for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady 'sexual overtones' or not, notwithstanding.
7. Applying the aforesaid principle of appreciation to this case, it is seen that the informant does not complain that the present petitioner aimed the blow to her breast. Rather, she has very categorically stated that the petitioner pressed the Lathi (Katha) on her neck and stood on it. Then the petitioner's wife dragged him. The injury was caused to her breast for the action of the accused persons. It thus, appears that the injury to her breast was caused accidentally. The injury, which was sustained by the injured on her breast has not been attributed particularly to the present petitioner in the sense that she has not stated that due to his assault she sustained the injury. Rather she has stated that due to the assault of the accused persons, she sustained the injury. In this case, this Court comes to the conclusion that applying to the standard laid down by the Apex Court in Rupan Deol Bajaj's case (supra), it cannot be held to be an affront to the normal sense of feminine decency. It is further noted that in this case there is no suggestive overtuous regarding sex. Therefore, the offence under Section 354 is not made out. The conviction of the petitioner under Section 354, I.P.C. is not sustainable. As far as offence under Section 323 is concerned, learned trial Court as well as the learned appellate Court has come to a concurrent finding of fact which requires no interference. Since the petitioner is sentenced to pay fine of Rs. 500/- for the offence under Section 323, I.P.C., it is not necessary to disturb the same as the learned appellate Court has already taken a sufficiently lenient view.
8. In the result, the appeal is allowed in part. The conviction and sentence for the offence under Section 354 of the I.P.C. are hereby set aside. However, the conviction and sentence for the offence under Section 323 of the I.P.C. are left undisturbed.