Santhosh Madhavan @ Amrutha ... vs Circle Inspector Of Police on 21 July, 2008
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Kerala High Court
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 4229 of 2008()
1. SANTHOSH MADHAVAN @ AMRUTHA CHAITHANYA
... Petitioner
Vs
1. CIRCLE INSPECTOR OF POLICE
... Respondent
2. STATE OF KERALA, REP. BY ITS
For Petitioner :SRI.S.GOPAKUMARAN NAIR (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :21/07/2008
O R D E R
K.HEMA, J.
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B.A.No. 4229 of 2008
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Dated this the 21st July, 2008
O R D E R
A girl aged 14 years is the alleged victim in this case. She belongs to a
financially poor family. When she failed in V111 th 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
BA.4229/08 2
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 in judicial 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.
BA.4229/08 3
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 BA.4229/08 4
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 BA.4229/08 5
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 he 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 ever 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 13.5.2008, there are "findings suggestive of evidence of penetration",
though there are no findings to suggest recent sexual intercourse. The opinion
was BA.4229/08 6
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. Referring 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 and 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
BA.4229/08 7
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 and rupture of the hymen, and even an attempt at penetration
is sufficient. Partial penetration of the penis within the labia majora 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 another 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.
BA.4229/08 8
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 has 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 BA.4229/08 9
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 effected by the Interpol that the
petitioner is a "wanted criminal", it took a long period of five years to
arrest the petitioner. All these facts have to be borne in mind when the bail
application 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 BA.4229/08 10
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 that 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
what 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 also allegedly
caught on several parts of her body but she BA.4229/08 11
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 on
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 BA.4229/08
12
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) that 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.
BA.4229/08 13
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 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 BA.4229/08 14
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 come 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 Utter Pradesh and others ( (2008)2 SCC 409) held
that 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 BA.4229/08 15
experts as may be necessary to clear the relevant doubts relating to the actual
criminal act committed by the petitioner.
24. It will be worthy 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 BA.4229/08 16
investigation into the relevant details would be necessary. But, in the absence
of it 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 is essential 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 which was brought into the statute more than 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 BA.4229/08 17
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 may 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 BA.4229/08 18
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 provisoin 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 care 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 (AIR 1967 SC 63) 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 BA.4229/08 19
naked below the waist and kneels over her. In this indecent posture he gives
vent to his unnatural lust, and in the process ruptures the 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 the view whether the person could be said to have outraged the modesty of a
child since the majority of the Judges took the view that 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 the 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 the 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 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.
BA.4229/08 20
31. The matter went to the Supreme Court. There also, there was divided
opinion. One 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
person. It is also to be remembered 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 BA.4229/08 21
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 except 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 educational 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 BA.4229/08 22
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 emphsises 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 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 not 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 BA.4229/08 23
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 than 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.
36A. May be, taking all these facts into consideration, in the State of
Andhra Pradesh, the offence under Section 354 IPC was BA.4229/08 24
amended as per IPC "(Andhra Pradesh Amendment) Act, 1991, Act No. 6 of 1991, S.
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 force to woman with intent to outrage her
modesty.--Whoever assaults or uses 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, but which shall
not be less than two years"
37. 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, at
least, 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 law-making 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, BA.4229/08 25
after considering various aspects, including Law Commission Reports on the
question and also possibility of misuse of the provision. 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.
K.HEMA, JUDGE
vgs.