Santhosh Madhavan @ Amrutha Chaithanya Vs. C.i. of Police and anr. - Court Judgment

Excerpt:
- - she belongs to a financially poor family. when she failed in viiith standard, she could not pursue her studies. the entire allegations are cooked up only for the purpose of the case, with ulterior motive of certain powerful enemies of the petitioner who have axe to grind against the petitioner, it is strongly contended. 11. it was also argued that in the further statement given by the victim, entire acts committed by the petitioner are clearly stated arid she has, in clear and cogent terms, stated that she was 'raped' by the petitioner. the video cassettes were viewed by police officers and other responsible persons and it is clearly mentioned in the mahazar that a particular video cassette reveals that the petitioner was committing rape on the girl. it is also natural that any.....orderk. hema, j.1. a girl aged 14 years is the alleged victim in this case. she belongs to a financially poor family. when she failed in viiith standard, she could not pursue her studies. on knowing that the petitioner is running a hostel for such children by giving all financial aid, affording boarding facilities also, she joined petitioner's hostel and continued the studies, under his care and protection. after the results were out, she was residing with her parents and she was called by the petitioner to his flat. she was taken to the residential flat of the petitioner by his driver, from there, she was allegedly raped by the petitioner at the age of 14 years. she was procured for that purpose by the second accused who was his driver.2. the first incident occurred in may 2006. she was.....

Judgment:
ORDER

K. Hema, J.

1. A girl aged 14 years is the alleged victim in this case. She belongs to a financially poor family. When she failed in VIIIth standard, she could not pursue her studies. On knowing that the petitioner is running a hostel for such children by giving all financial aid, affording boarding facilities also, she joined petitioner's hostel and continued the studies, under his care and protection. After the results were out, she was residing with her parents and she was called by the petitioner to his flat. She was taken to the residential flat of the petitioner by his driver, from there, she was allegedly raped by the petitioner at the age of 14 years. She was procured for that purpose by the second accused who was his driver.

2. The first incident occurred in May 2006. She was again taken to the flat and rape was committed on her by the petitioner on about six occasions totally. The rape scenes were videographed and video cassettes were seized from the locker of the petitioner in the bank, pursuant to confession statement given to the police. Since the petitioner used to threaten the child, stating that her naked photos were taken, she did not divulge the matter to anybody, for fear of being exposed. But, when the media started reporting about petitioner's criminal activities, she took courage to go to the police station along with her mother and gave a statement to the police on 13-5-2008. Thus, a crime was registered against the petitioner and his driver under Sections 366A, 376 and 34 of Indian Penal Code.

3. Petitioner was arrested in connection with another crime and his arrest was recorded in this case also. He is injudicial custody. He seeks bail under Section 439 of the Code of Criminal Procedure. Learned Counsel for petitioner, Sri. S. Gopakumaran Nair submitted that the petitioner was taken into custody on 13-5-2008 and he is in custody for the past 77 days. He also submitted that the petitioner is totally innocent of the allegations made and the present complaint is cooked up at the instance of certain persons who are motivated against the petitioner, who could procure and plant the de facto complainant as a victim of rape. It was pointed out that petitioner was arrested at 9 am on 13-5-2008 and within one hour, at 10 am, the girl was at the Police Station with her mother, to lodge the present complaint. Even before the news of arrest reached his counsel, the girl had reached the station and given the complaint. This very circumstance will indicate that everything was stage-managed and she was only a planted victim, who filed a false complaint against the petitioner.

5. The delay in the complaint is also clinching in this context. The incident allegedly happened in the year 2006 and there were repeated instances of rape on six occasions also, but he alleged victim did not divulge the fact to anybody for a long period of two years, till the complaint was lodged in 2008. According to learned Counsel for petitioner, the complaint is highly belatedly and also concocted and the de facto complainant was only a scape goat at the hands of persons who are motivated to destroy the reputation of the petitioner. Hence, if petitioner is detained in custody any further, it will protect only the interest of the persons who have cooked up a false story against the petitioner, is the submission.

6. It was also strongly contended that even if the entire prosecution case is accepted, the offence allegedly committed by the petitioner will not constitute any non-bailable offence under Section 375 IPC which is punishable under Section 376 IPC. As per the materials available, the offence will only be under Section 354 IPC which is a bailable offence and hence, he is entitled to bail. The petitioner is handicapped at this stage, since the prosecution records are not within the reach of the petitioner, still, as it is understood during this proceedings, the findings in the medical certificate will strongly suggest that there was no penile penetration which is an inevitable requirement to constitute offence of rape under Section 375 IPC, it was submitted. It was also, argued, on the basis of the decision of the Supreme Court reported in Sakshi v. Union of India (2004) 5 SCC 518 that an offence under Section 376 IPC will be attracted only if there is penile penetration, but the medical certificate would negative possibility of any penile penetration.

7. If a 14 year old girl is raped, necessarily, there would be bleeding and also pain in the private part, but the child had not made any complaints of pain or bleeding or injury. Had she been subjected to a forcible sexual intercourse by the petitioner (who is an adult male aged about 33 years at the time of occurrence) necessarily, there would be evidence of violence but, she had no case that she had any pain, bleeding or injury. In such circumstances, in the absence of evidence of penile penetration, the offence falls only under Section 354 IPC, going by the admitted case of the prosecution itself, it was submitted. Statements of the girl were recorded by senior police officials and the omission made by the girl to mention anything regarding penile penetration is fatal to the prosecution, it is argued, it is also submitted that the mere allegation by the girl that she was 'raped' will not tilt the balance because, it is not the concept of the girl what is relevant, but the court is guided by the statute, language of the relevant provision and the precedents on the point. As per the law, as it stands now, there must be penile penetration to constitute rape, as clarified by the Supreme Court in Sakshi's case (Supra). The fate of the petitioner can be decided only in accordance with the law which is in force at the time of alleged occurrence, it is submitted.

8. It was also pointed out by learned Counsel for petitioner that according to prosecution the child was housed in the hostel run by the petitioner and one Purushothaman and Omana were the caretakers and they have given statement under Section 164 Cr.P.C. before the Magistrate Court to the effect that the children from the hostel had left the hostel only with their parents. It is not possible to infer from their statement that an incident of this nature would never take place. The entire allegations are cooked up only for the purpose of the case, with ulterior motive of certain powerful enemies of the petitioner who have axe to grind against the petitioner, it is strongly contended. Taking all these facts into consideration, it is submitted that the petitioner may be granted bail, to which, he is entitled also.

9. This petition is strongly opposed. It is submitted by Sri. P.G. Thampi, learned Director General of Prosecution that it is not correct to say that the medical evidence reveals anything in support of the petitioner. As per the certificate given by the doctor who examined the girl at the age of 16 years on 13-05-2008, there are 'findings suggestive of evidence of penetration', though there are no findings to suggest recent sexual intercourse. The opinion was reserved by the expert, pending the chemical analysis report on the sample of vaginal swab, smear etc. as seen from the wound certificate. Therefore, it cannot be stated, based on medical evidence, that the offence made out is only under Section 354 IPC, it was argued.

10. Referred to Modi's Medical Jurisprudence Twenty-third Edition, the following passage from pages 928 and 930 was read out;

in girls under 14 years of age, the vaginal orifice is usually so small that it will hardly allow the passage of the little finger through the hymen.... A girl of 10 years had contusions on the inner aspect of both thighs, a torn hymen, some slight blood discharge from the vagina, swelling over the labia majora and the vagina admitted a finger indicating that there was forced penetration'.

Reliance was also placed on H.W.V. Cox Medical Jurisprudence and Toxicology to fortify his arguments.

11. It was also argued that in the further statement given by the victim, entire acts committed by the petitioner are clearly stated arid she has, in clear and cogent terms, stated that she was 'raped' by the petitioner. Certain video cassettes were recovered, pursuant to the statement given by the petitioner from his locker in the bank and those are seized under a mahazar. The video cassettes were viewed by police officers and other responsible persons and it is clearly mentioned in the mahazar that a particular video cassette reveals that the petitioner was committing rape on the girl. The allegation now made by the child that she was raped itself would be more than sufficient to support the case set up by the prosecution; it is argued. Reliance was placed on a decision of this Court reported in Mohammed v. State of Kerala 1987 (2) KLT 565 wherein it is held as follows:

To constitute the offence of rape, it is not necessary that there' should be complete penetration of the penis with emission of semen rupture of the hymen, and even an attempt at penetration is sufficient. Partial penetration of the penis within the labid major a of the vulva or pudendum' with or without emission of semen is sufficient for other purpose of law.

12. Other decisions of the Supreme Court and this Court (vide Ranjit Hazarika v. State of Assam (1988) SCC (Cri.) 1725, Prabha v. State of Kerala 1992(2) KLT 892 and Aman Kumar and Anr. v. State of Haryana 2004 SCC (Cri) 1266 were also cited and the relevant extracts were read out to argue that even partial penetration would suffice to constitute rape. It was argued that non-rupture of hymen, absence of injury on victim's private part etc. do not belie the testimony of the victim, in the absence of her statement that she bled per vagina etc. (see Ranjit Hazarika's case). For all these reasons, it is strongly contended that offence under Section 376 IPC itself is attracted in this case and the argument that there is only an offence under Section 354 IPC which is bailable is without any merit or any basis.

13. Learned Director General of Prosecution also pointed out that the delay will not matter much, on the facts and circumstances of this case because the victim herself has given reasons for the delay in lodging the complaint. The explanation can only be accepted, on the facts and peculiar circumstances of this case. It is also natural that any girl or woman will be embarrassed because of her modesty to openly state such incident to the close relatives or to the police and it will be much more difficult if the assailant is an influential and powerful person, The petitioner was posing himself as a 'Godman' having divine powers and he was cheated not only this minor girl but other girls as well and the public also. Many have become helpless prey to the pretext of the petitioner's alleged divine powers. So, the petitioner cannot take shelter in the delay caused in lodging the FIR especially, since the delay occurred in the peculiar circumstances and it is satisfactorily explained also. It was also argued that the allegation that the present case is a cooked up one and that the victim is a planted one etc., are most repulsive, even to a layman's common sense.

14. It was further submitted that no reliance can be placed on the statement given under Section 164 Cr.P.C. since the said Omana is none other than the first cousin who is a close associate of the petitioner. When she was questioned by the police, she had given a different statement and she resiled from her case diary statement while the statement given under Section 164 Cr.P.C. This only confirms the influence of the petitioner and hence if the petitioner is released on bail, he would influence all other material witnesses also and prevail upon them to deviate from their earlier statements and the entire evidence Collected so far in this case would be destroyed at the tip of money, muscle and influence, it is submitted.

15. It is also pointed out that the petitioner is an accused in similar crimes. Two more minor girls and a major girl have already lodged complaints against the. petitioner, alleging rape. Other series of crimes are also committed by the petitioner and those crimes are under investigation. All these crimes were brought to light only after a complaint was filed by a non-resident Indian lady in 2003 regarding cheating committed by the petitioner. Because of petitioner's strong influence, petitioner was evading arrest warrant issued by interpol and despite the publication is considered by this Court and it is requested that in the interest of justice, for a smooth and effective investigation and trial, bail may not be granted to the petitioner.

16. I have heard both sides in detail and also gone through the case diary. On the facts and circumstances of the case, the contention whether the allegations made in this case constitute bailable offence under Section 354 IPC or whether it is a non-bailable offence under Section 376 IPC deserves due consideration. Since the liberty of the petitioner depends upon the decision on this question mooted, this Court is bound to consider the question in detail. The argument that the allegations constitute only offence under Section 354 IPC was advanced, mainly on the basis of a vital omission in the statement given by the girl regarding the details of penile penetration or attempt thereto, in clear and cogent terms.

17. On going through the case diary and statements given by the alleged victim, it is clear that she stated she was 'raped' by the petitioner. But it was not clarified by the investigators whether there was any penile penetration or an attempt of it. Needless to say that the victim may not know that ingredients constitute offence of rape defined under Section 375 IPC, She may not know what type of penetration or what extent of penetration would be required to constitute rape. Therefore, it will be ridiculous for the Bar or the Bench to expect a minor girl to know the legal complications which are yet to be unearthed in more details by precedents. It is only revealed from her statement that the petitioner removed her clothes and made her naked, lied on top of her, after removing his own dresses. The petitioner was allegedly caught on several parts of her body but she has not stated clearly whether there was penile penetration or not, though, according to her, she was 'raped'.

18. In 2004 the Supreme Court held, after considering the matter in detail that only penile penetration will constitute rape, but no other forms of penetration will attract offence under Section 375 IPC. It is seen from the judgment in Sakshi's case (supra) that the Supreme Court referred the matter oh 13-1-1998 to the Law Commission of India for its opinion whether all forms of penetration would come within the ambit of Section 375 IPC or whether any change in statutory provision need to be made and if so, in what respect.

19. The Law Commission considered some of the matters in its 156th Report and answered the reference by stating, 'sexual child abuse may be committed in various forms such as sexual intercourse, carnal intercourse and sexual assaults. The cases involving penile penetration into vagina are covered under Section 375 IPC. If there is any case of penile/oral penetration and penile penetration into anus, Section 377 IPC dealing with unnatural offences.... If acts such as penetration of finger or any inanimate object into vagina or anus are committed against a woman or a female child, the provisions of the proposed Section 354 IPC...would be attracted. A distinction has to be naturally maintained between sexual assault/use of criminal force falling under Section 354, sexual offences falling under Section 375 and unnatural offences falling under Section 377 of the Indian Penal Code. It may not be appropriate to bring unnatural offences punishable under Section 377 IPC or mere sexual assault or mere sexual use of criminal force which may attract Section 354 IPC within the ambit of 'rape' which is a distinct and graver offence with a definite connotation'. Paragraph 9.59 of the Report is extracted in the judgment in Sakshi's case (supra).

20. The Supreme Court held in Sakshi's case (supra) mat prosecution of an accused for an offence under Section 376 IPC on a radically enlarged meaning of Section 375 IPC as suggested by the petitioner in that case may violate the guarantee enshrined in Article 20(1) of the Constitution. It says that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The Supreme Court held, 'it will not be in the larger interest of the State of the people to alter the offence of rape as contained in Section 375 IPC to include penetration other than penile penetration, by a process of a judicial interpretation as is sought to be done by the petitioner' in that case.

21. In the light of the above interpretation given to Section 375 IPC, it is clear that offence under Section 375 IPC will not be attracted unless there is evidence of penile penetration. It is also well-settled that partial penile penetration will be sufficient to constitute rape. Any injury caused by penetration other than penile penetration will not suffice to attract offence under Section 376 IPC. In this case the medical certificate shows that 'vagina admits one finger'. The victim has not specifically stated that there was any penile penetration or an attempt of such penetration. There was no attempt from the side of the investigating agency to question the child to find out what exactly had happened. After receiving the medical report which shows only admission of one finger into the vagina, the child and the doctor ought to have been questioned to ascertain whether there was any 'penile penetration' or an attempt to it. But, neither the child nor the doctor was questioned from this angle.

22. Since as per the settled law, penile penetration or an attempt to such penetration into the pudendum may be required to constitute offence under Section 376 or 511 of 376 IPC, this particular fact has to be investigated into and materials have to be placed before Court for aiding the court to take a right decision. There appears to be an omission in investigation, but it may turn to be fatal in this case. Learned Director General of Prosecution requested this Court to view the video cassettes which are in the custody of the Magistrate Court to confirm whether there was only an offence under Section 376 IPC or under Section 354 IPC. I am not inclined to heed to this request, for reasons more than one. Firstly, this Court cannot identify either the petitioner or the victim by sight, since both are unknown to me. Secondly, it may not be proper for this Court to dome to a definite finding on the disputed question at this stage of investigation, by merely viewing the video cassettes, since it is likely to prejudice the right of the petitioner to have a fair trial.

23. Any way, it is evident that the child has not stated anything relating to 'penile penetration' or such attempt. The medical evidence shows that vagina admits only one finger. Hence, it is necessary that the matter is clarified by questioning the victim and the medical experts. The Supreme Court in Sakiri Vasu v. State of Uttar Pradesh and Ors. : AIR2008SC907 held hat in cases whether the Magistrate finds that the police has not done its duty of investigating the case at all or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. In the light of the dictum laid down by the Supreme Court in the above case, I am of view that it will not be beyond the powers of this Court to direct the investigating officer to question the de facto complainant and also the doctor or such other medical experts as may be necessary to clear the relevant doubts relating to the actual criminal act committed by the petitioner.

24. It will be worth to bear in mind that the omission on the part of the investigating agency has given rise to an explosion of argument on the question whether only a bailable offence under Section 354 IPC was made out in this case or not. Though the omission appears to me as an inadvertent one and not an intentional one, the omission is very vital, it is essential that this Court intervenes and directs the investigating officer to ascertain the necessary details in investigation so that the court can take a right decision in the matter. A person can be dealt with by a court of law only for the acts which he has actually committed. He will be answerable only for the act which is committed by him. Whatever be the noise created, the courts are bound by law and shall act only as per law. Therefore, it is highly necessary that the investigators find out as to what exactly was the nature of act committed by the petitioner on the victim.

25. The bare statement by a child, aged 16 years, that she was 'raped' alone may not be sufficient for the court to come to a finding that an offence under Section 376 IPC is committed. The court must be satisfied that she was subjected to penile penetration or that there was atleast an attempt of penile penetration. In the light of the medical evidence that the vagina admits only one finger, a more detailed investigation into the relevant details would be necessary. But, in the absence of it will be improper for this Court to enter a finding at this stage that the petitioner committed only an offence under Section 354 IPC and not under Section 376 IPC.

26. It is true, courts have no role in the investigation. But, in appropriate cases, in the interest of justice, it inessential that the courts intervene and alert the investigating agency to collect evidence before it is destroyed or delayed, to bring out the truth. The victims of sexual assaults may not know or realise the implication of the definition of 'rape' in Section 375 IPC was brought into the statute more man a century ago. It appears that even the investigators were not aware of the complications and the confusions which would arise in a case of this nature when it comes to the court. A criminal court is the guardian of not only the' victims alone. The courts in this country, even today work on the presumption that an accused is innocent until he is proved to be otherwise and insists for evidence. While the courts protects a genuine victim, it is equally the duty of the court to ensure that an accused is punished only for the act which he has actually committed.

27. However, the investigation is not complete in this case. In the nature of allegations made by the victim that she was raped and in the light of the medical evidence that there are findings to suggest evidence of 'penetration', it will be premature for this Court to arrive at a reasonable belief that the accused is not guilty of rape, merely because of a seemingly inadvertent omission on the part of the investigating agency to ascertain the required details by questioning the relevant witnesses. While liberty of the accused is of prime concern to the court, the right of the victim and the interest of the society are also equally important to it. The court has to balance both and, protect both, but it shall be done only within the framework of law. Hence, it may not be proper to release petitioner on bail, holding that the offence is only under Section 354 IPC. If he is released on bail at this stage it is likely that he my influence or intimidate witness or tamper with evidence.

28. Since detailed arguments were addressed on the question whether offence under Sections 376 or 354 IPC is made out in this case, I do not think that my duty is over by merely deciding whether the accused deserves to be released on bail or not. It is clear from the arguments advanced in this case that in cases where there is lack of evidence regarding penile penetration or attempt of the same, whatever be the nature of sexual assault made on a child or a woman, which falls short of penile-vaginal penetration or an attempt of the same, it may constitute only an offence under Section 354 or 377 IPC. Section 354 IPC is attracted in cases where criminal force used by accused with intent to outrage the modesty of a woman, it can range from mere catching hold of a woman's hand to any heinous nature of sexual assault which may fall short of penile penetration or an attempt to do so or unnatural offence. There is a wide gap between the mere using of criminal force to outrage modesty of a woman and commission of rape as defined under Sections 354 and 376 IPC respectively. A wide range of sexual assaults may fall within the gap, but in my considered view, there is no adequate provision in the Indian Penal Code which will effectively commensurate the gravity of the sexual assaults made on women and children by the opposite sex. There are several occasions while courts may feel handicapped there being no appropriate provision of law to take case of the situation and also to award appropriate punishment for the sexual assault.

29. In this context, it would be worthy to cite an instance from a reported decision which will depict the plight of female child of tender age. The gravity of the situation can be better understood by the law-makers; if an instance from a reported decision is referred to. As early as in 1967, the Supreme Court considered the case of a female child aged just 7 months. The facts in State of Punjab v. Major Singh : 1967CriLJ1 can be extracted as referred to in the said judgment itself, 'The time is 9.30 pm. The respondent walks into the room where the baby is sleeping and switches off the light. He strips himself naked below the waist and kneels over her. In this indecent posture he gives vent to his unnatural lust; and in the process ruptures me hymen and causes a tear ' long inside her vagina. He flees when the mother enters the room and puts on the light'. Hymen was ruptured by fingering.

30. The matter first reached the Punjab High Court. The Judges differed in me view whether the person could be said to have outraged the modesty of a child since the majority Of me Judges took the view mat the offence could be committed only when a woman felt that her modesty was outraged, Since the child to whom the criminal force was used was of too tender an age who was physically incapable of having any sense of modesty, the Judges answered me question in the negative. One of the Judges who differed and answered the question in the affirmative and held that the word 'modesty' meant, accepted notions of womanly modesty and not the notions of me woman against whom the offence was committed and that the Section was intended as much in the interest of the woman concerned as in the intended as much in the interest of the woman concerned as in the interest of public morality and decent behaviour and the object of the section could be achieved only if the word 'modesty' was considered to be an attribute of a human female irrespective of whether she had developed enough understanding to realise that an act was offensive to decent female behaviour or not.

31. The matter went to the Supreme Court. There also, there was divided opinion. Once of the Judges held 'I do not think a reasonable man would say that a female child of 7 months is possessed of womanly modestly. If she had not, there could be no question of respondent having intended to outrage her modesty or having opinion that his act was likely to have that result'. However, on equally strong reasons, two Judges differed with this view and interpreted the word 'modesty' in such a manner so as to bring the offence committed by the accused under Section 354 IPC. But, the maximum punishment which could be awarded for the offence was only two years and hence the accused was sentenced to undergo rigorous imprisonment for two years and pay a fine of Rs. 1,000/- out of which Rs. 500/- was ordered to be paid to the victim.

32. It is clear from the above facts that even in a case in which a child of tender age of 7 months was subjected to such inhuman sexual violence the courts could not find any provision in the Indian Penal Code other than a bailable offence under Section 354 IPC, to convict the accused who committed certain acts which are revolting to the conscience of any right thinking persons. It is also to be renumbered that being a bailable offence, he must have been granted bail also, immediately after the crime. The society may criticize the sentence awarded by the Supreme Court as too inadequate a punishment, but that is the maximum punishment which can be imposed under Section 354 IPC. If the accused has no intention to commit 'penile penetration' or attempt to do so, whatever be the nature of sexual assault unnatural offence, it falls under Section 354 IPC which is punishable with two years imprisonment and fine. The offence is bailable also.

33. This only points the fingers to an extremely abominable fact. The total inadequacy of provisions of law to protect the interest of a child/woman in this country from various types of sexual assaults, which the society may not, unfortunately, be aware. Article 19 of the United Nations Convention on the Elimination of all forms of discrimination against Woman, 1979 and also Convention on the Rights adopted by the General Assembly of the United Nations on 20-2-1989 lays down that the State party shall take appropriate legislation, social and education measures to protect the child from all forms of physical and mental violence, injury or abuse, negligent woman maltreatment or exploitation including sexual abuse while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. It further lays down that such protective measures should include effective procedures for the establishment of social programmes to provide necessary support for the child and those for who have the care of the child as well as other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instance of child maltreatment described heretofore, and as appropriate for judicial involvement.

34. The Indian Constitution also emphasises the need to protect women and children by enacting adequate laws. Many decades have passed now, after independence. Several instances of sex racket cases where women and children are subjected to sexual assaults and exploitation were and children are subjected to sexual assaults and exploitation were reported in this State. In 2004, the Supreme Court also in Sakshi 's case (2004) 5 SCC 518 observed thus: 'The cases of child abuse and rape are increasing at an alarming speed and appropriate legislation in this regard is, therefore, urgently required. We hope and trust that Parliament will give serious attention to the points highlighted by the petitioner and make appropriate legislation with all the promptness which it deserves.

35. Still, the law-makers appear to have either no understood the gravity of the problem or they are shutting their eyes to it. The Law Commission on its 156th Report, referring to the question whether there was any need for amendment to Sections 354, 377 and 376 stated, 'it is needless to mention that any attempt to commit any of these offences is also punishable by virtue of Section 511 IPC. Therefore, any other or more changes regarding this law may not be necessary' (vide paragraph 17 of (2004) 5 SCC 518). It appears, the golden vibrant letters enshrined in the Constitution remain as mere petrified black prints of obituary to the children's right against sexual abuse.

36. As early as on 26-5-2004, the Supreme Court expressed the hope that the Parliament will give serious attention to the problem and make appropriate legislation. Major Singh's case (supra) was decided as early as in 1966. But, even today, there is no legislation which adequately takes care of the situation though there is a proposal for a Bill relating to child sexual abuse. Instances are many, where various forms of sexual assaults which may fall short of rape shake the judicial conscience. Such cases also etch more serious harm and damage to the mind and body of the child or woman that in a case of rape itself. But courts helplessly gaze, not finding a way to deal with certain instances of sexual assault. In a case where the accused may not have the intention to have penile penetration or an attempt to it, but he does every other heinous act to vent his lust, which may be worse than even rape or an attempt to rape, the offence which may be attracted will be a bailable offence under Section 354 IPC. The physical and psychological harm caused in such cases may be irreparable.

37. May be, taking all these facts into consideration. In the State of Andhra Pradesh, the offence under Section 354 IPC was amended as per IPC '(Andhra Pradesh Amendment) Act, 1991, Act No. 6 of 1991, Section 2', which came into force on April 1, 1991 vide GOMs No. 165, dt. 25-3-1992) and it reads as follows:

In the Indian Penal Code, 1860, for Section 354, the following section shall be substituted, namely-

354. Assault or criminal to force to woman with intent to outrage her modesty.- Whoever assaults or used criminal force to any woman 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 shall not be less than five years but which may extend to seven years and shall also be liable to fine;

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term which may be less than five years, hut which shall not be less than two years.

38. The punishment was enhanced and the offence under Section 354 IPC is made a non-bailable one in the State of Andhra Pradesh. Some other States also made offence' under Section 354 IPC, a non-bailable one. I am of view that, atleast, by making offence under Section 354 IPC a non-bailable one, and by effecting amendment to the sentence suitably for offence under Section 354 IPC the evil can be curbed to a certain extent. This can be done at the State level itself. Hence, I take this opportunity to alert the lawmaking authority in the State to consider whether suitable amendments can be brought in, to Section 354 IPC for protecting the child/woman from sexual assaults other than which are covered by Section 375 IPC. This may be done, after considering various aspects, including Law Commission Reports-on the question and also possibility of misuse of the provision.

39. In the result, the following order is passed:

i) The prayer for bail by the petitioner is rejected.

ii) The investigating officer is directed to question the de facto complainant and the medical witnesses who are already questioned and also any other medical experts, if necessary, in the light of the observations made in this judgment.

iii) The Registry is directed to issue copy of this order to the Chief Secretary, Government of Kerala for appropriate action.

This petition is dismissed.