Bombay High Court
Alkesh Ashokrao Deshmukh vs State Of Mah. Thr. Pso Badnera Tah. And … on 22 January, 2025
2025:BHC-NAG:695
Judgment
344 apeal143.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.143 OF 2023
Alkesh Ashokrao Deshmukh C-6035,
aged about: 30 years,
occupation: service,
presently detained in
Central Jail, Amravati. ..... Appellant.
:: V E R S U S ::
1. State of Maharashtra,
through Police Station Officer Badnera,
tahsil & district Amravati.
2. XYZ (victim),
Crime No.490/2020,
Police Station Officer,
Police Station Badnera,
tahsil and district: Amravati (city). ..... Respondents.
====================================
Shri G.L.Agrawal, Counsel Appointed for the Appellant.
Mrs.S.S.Dhote, Additional Public Prosecutor for Respondent
No.1/State.
Mrs.A.Mishrikotkar, Counsel Appointed for Respondent
No.2/Victim.
====================================
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 10/01/2025
PRONOUNCED ON : 22/01/2025
JUDGMENT
1. By this appeal, the appellant (the accused) has
challenged judgment and order dated 2.2.2022 passed
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by learned Additional Sessions Judge-2, Amravati
(learned Judge of the trial court) in Special (Atrocity)
Case No.207/2020.
2. By the said judgment impugned, the accused is
convicted for offence under Section 376(1) of the Indian
Penal Code and sentenced to undergo rigorous
imprisonment for ten years and to pay fine Rs.10,000/-,
in default, to undergo rigorous imprisonment for two
months.
The accused is further convicted for offence under
Section 354 of the Indian Penal Code and sentenced to
undergo rigorous imprisonment for five years and to pay
fine Rs.5000/-, in default, to undergo rigorous
imprisonment for one month.
3. Facts of the prosecution case necessary for
disposal of the appeal are as under:
On 28.7.2020, the victim lodged a report to
Badnera Police Station, Amravati contending that she
belongs to “Mahar Community” and aged about 24 years
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old working as “Promoter” in “Walmart” at Amravati. On
24.7.2020, one “Covid Positive” patient was found in the
“Walmart” and, therefore, the Amravati Municipal
Corporation had asked all employees working in the
“Walmart” to undergo “Antigen Covid Test”. Therefore, on
28.7.2020, 20 employees of the “Walmart” approached
“Modi Trauma Care Hospital at Badnera” for the same
“Antigen Covid Test”. One Supriya Vitekar working as
“Assistant Protection Manager” in the “Walmart”
accompanied all employees to the said test centre. The
accused was working there as an “Analyst” and work of
obtaining samples was allotted to him. He had obtained
“Swab Samples” from “naustril” of the employees. After
some time, he called the victim and told her that her first
“Covid Test” is “Positive” and, therefore, another test has
to be carried out by obtaining sample from her “vagina”.
The victim could not understand why sample from
“vagina” is required and, therefore, she informed about it
to said Supriya and again contacted to the accused and
he repeated the same fact that as the victim’s first
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“Covid Test” is “Positive, her “vaginal fluid sample” is
required on which said Supriya enquired with the
accused as to whether any female employee is available
to take the sample and he replied that no female
employee is available to take the sample. Therefore, the
victim along with said Supriya went along with the
accused to give the sample. The accused by taking
them in a room inserted a swab stick in her vagina and
took a sample and disclosed that the victim’s test is
negative.
4. As only the sample of the victim was taken, she
suspected the act of the accused and informed this fact
to her brother. Her brother also came to “Irvin Hospital
at Amravati” to verify about procedure of taking sample
and he came to know that there is no need to obtain
sample from “vagina” for “Covid Test”. Subsequently,
the victim received a text message from one mobile
number 9637636378 commenting that “you are looking
so beautiful, friendship karate ka?” The victim asked
about the identity of the person who sent the text
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message to her and it revealed that it was the person
who obtained her sample and, therefore, she
approached the police station and lodged the report.
5. On the basis of the said report, the police
registered the crime. After registration of the crime,
during investigation, the Investigating Officer has
recorded relevant statements of witnesses, drawn spot
panchanama, obtained samples of the victim as well as
the accused, and also collected samples which are
obtained by the accused. After completion of the
investigation, chargesheet was submitted against the
accused.
6. Learned Judge of the trial court framed charge
vide Exhibit-2. The accused pleaded not guilty and
claimed to be tried.
7. In support of the prosecution case, the prosecution
examined as many as twelve witnesses namely the
victim vide Exhibit-15 (PW1); brother of the victim vide
Exhibit-23 (PW2);
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In view of mandate of Section 228-A of the Indian
Penal Code, names of the victim and her brother are not
mentioned hereinafter);
Supriya Vitekar vide Exhibit-28 (PW3);
Dr.Shamsundar Nikam vide Exhibit-30 (PW4), the Civil
Surgeon; Jyoti Madhait vide Exhibit-32 (PW5), the co-
employee of the accused; Dr.Vipin Singh vide Exhibit-36
(PW6), the Medical Officer; Amardeep Wadadkar vide
Exhibit-38 (PW7), the pancha on spot; Shubhangi
Gulhane vide Exhibit-49 (PW8), the Assistant Police
Inspector (Investigating Officer); Rupa Hajare vide
Exhibit-51 (PW9), the NPC; Punjab Wanjari vide Exhibit-54
(PW10); Sudam Asore vide Exhibit-60 (PW11), the
Investigating Officer; and Sohail Shaikh vide Exhibit-68
(PW12), the ACT (Investigating Officer).
8. Besides the oral evidence, the prosecution placed
reliance on documentary evidence namely CA Reports
Exhibit-10 to 12, report by the victim Exhibit-16, FIR
Exhibit-17, seizure memo Exhibit-18, statement under
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Section 164 of the Code of Criminal Procedure Exhibit-19,
Test Identification Parade Memorandum Exhibit-20,
communication by Civil Surgeon Dr.Shamsundar Nikam
to the Investigation Officer Exhibit-31, seizure memos
Exhibits-32 and 35, spot panchanama Exhibit-39, seizure
panchanama Exhibit-40, medical certificate Exhibits-41
to 43, seizure memo Exhibit-44, medical certificate of the
accused Exhibit-45, special report by PW10 Exhibit-55,
letter to the Medical Officer Exhibit-56, letter to Police
Commissioner Exhibit-57, letter to District Collector
Exhibit-58, letter to Civil Surgeon Exhibit-59, arrest
panchanama Exhibit-61, verification panchanama
Exhibit-62, and letter to CA Exhibit-73.
9. All incriminating evidence is put to the accused for
obtaining his explanation regarding the evidence
appearing against him. The defence of the accused is of
total denial and of misidentity.
10. On the basis of the oral as well as the
documentary evidence, learned Judge of the trial court
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held that the act of the accused is covered under
definition given under Section 375(b) of the Indian Penal
Code and thereby held the accused guilty under Section
376(1) of the Indian Penal Code and thereby convicted
the accused as the aforesaid.
11. Heard learned counsel Shri G.L.Agrawal appointed
for the accused; learned Additional Public Prosecutor
Mrs.S.S.Dhote for the State, and learned counsel
Mrs.A.Mishrikotkar appointed for the victim.
12. Learned counsel for the accused submitted that as
far as the evidence adduced by the prosecution is
concerned, the same does not disclose the offence of
sexual assault as it is not a case of penetration.
Moreover, the identity of the accused is also not
established. He submitted that it is not established that
the accused was serving in “Modi Trauma Care Hospital
at Badnera”. It is also not established that it was the
accused who has obtained the swab sample. The
witnesses have admitted that the person who obtained
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the sample was wearing A “Special Kit” and, therefore,
there was no opportunity for the witnesses to identify the
said person. Thus, the offence against the accused is not
established beyond reasonable doubt. Moreover, there is
no use of force and if the prosecution story is accepted,
the sample was obtained by consent of the victim and,
therefore, as no offence is made out against the accused,
the judgment impugned deserves to be quashed and set
aside.
13. In support of his contentions, learned counsel for
the accused placed reliance on following decisions:
1. Anversingh alias Kiransinh Fatesinh Zala
vs. State of Gujarat1;
1 (2021)3 SCC 12
2 AIR 2009 SC 1467
3 (1994)1 SCC 453
4 (2019)18 SCC 7…..10/-
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14. Per contra, learned Additional Public Prosecutor for
the State supported the judgment impugned and
submitted that the evidence adduced by the prosecution
shows that it was the accused who was deputed for
obtaining samples. Jyoti Madhait, the co-employee of
the accused, Civil Surgeon Dr.Shamsundar Nikam, and
Dr.Vipin Singh disclose that it was the accused who was
deputed for obtaining samples. The accused is identified
during the evidence by all witnesses which is substantive
evidence. As far as the consent is concerned, it was not
free consent and obtained on misconception of fact.
Therefore, merely because the victim has given a
consent to obtain sample, it is not sufficient to exonerate
the accused from punishment. She submitted that the
act of the accused surely covers under the definition of
rape given under Section 375 of the Indian Penal Code.
She submitted that the appeal being devoid of merits is
liable to be dismissed.
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15. Learned counsel for the victim endorsed the same
contentions made by learned Additional Public
Prosecutor for the State.
16. Heard learned counsel appearing for respective
parties.
17. The first and foremost question is, whether the act
of the accused obtaining the sample from “vagina” of the
victim would come under sexual assault in view of
amended definition of “rape” given under Section 375 of
the Indian Penal Code.
18. To support the charge levelled against the
accused, the prosecution placed reliance on the evidence
of PW1 victim.
The evidence of PW1 victim shows that she was
serving as “Promoter” in the “Walmart”. As one of
employees of the “Walmart” tested “Corona Positive”,
they received instructions from the Amravati Municipal
Corporation that all employees should undergo “Covid
Antigen Test”. Accordingly, they approached “Modi
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Trauma Care Hospital at Badnera” for the same “Antigen
Covid Test” wherein the accused was also serving. She
came to know the name of the accused as one of
employees gave him a call and asked him to obtain
swabs. Out of twenty employees, she was called by the
accused and asked her to undergo “Urine Test” as her
“Covid Test” is “Positive”, but she informed the said fact
to her superior PW3 Supriya Vitekar. The accused
disclosed the similar fact that the victim has to undergo
“vaginal test” and, therefore, PW3 Supriya asked him
about a female employee on which he disclosed that
female employee is not available. The victim was taken
along with Supriya to a room and by using testing stick,
swab was obtained from her vagina. Subsequently, she
came to know that such swab is not required as far as
“Covid Antigen Test” is concerned. She also received a
message from the accused expressing that she looks
beautiful and he wants to develop friendship with her.
PW2, the brother of the victim, is also examined
who has also disclosed that from his sister, he came to
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know that the accused has obtained her “vaginal swab”
which was not required. He made an enquiry from “Irvin
Hospital” and he came to know that no such “Urinal Test
Examination” is required for “Corona Test.”
Though these witnesses are cross examined by
the defence, nothing incriminating is brought on record.
As far as the cross examination of the victim is
concerned, the same is on the point of procedure
adopted in the hospital before obtaining sample. She
admitted that she came to know the name of the
accused from the other employee who were calling the
accused.
Thus, as far as the evidence of the victim on
obtaining the “vaginal sample”, which was not required,
is concerned, nothing incriminating is brought on record.
Similarly, the cross examination of the brother of
the victim also shows that his sister disclosed him that
initially, sample from her “nostril” was obtained and it
was the accused, who was “Technician” there, who told
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her that as her first “Covid Test” is positive, she has to
undergo another test and has to give her “vaginal
sample” and, therefore, she gave “vaginal swab”.
19. To corroborate the version of PW1 victim, the
prosecution has also examined PW3 Supriya Vitekar, who
stated that she was along with the victim at the time of
obtaining the sample. Her evidence also shows that on
the day of the incident i.e. 28.7.2020 she along with 20
employees had been to “Modi Trauma Care Hospital at
Badnera” for giving samples to undergo “Corona Test”.
Thereafter, it was the accused who disclosed the victim
that she has to undergo another test. The victim
disclosed to her that she has to undergo another test
and for that purpose “Urinal Test” is required and,
therefore, she enquired with the accused and also
enquired, “whether any female employee is available”.
She specifically stated that the accused informed her
that the first test of the victim is “Positive” and,
therefore, another test is to be carried out by obtaining
“vaginal fluid”. Therefore, she along with the victim went
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in a room wherein the accused has obtained “vaginal
sample” with the help of testing stick. Subsequently, she
came to know from the victim that she has received a
message of the accused asking her to have friendship
with her.
The cross examination of Supriya also confirms
that she went along with 20 employees. It further
confirms that it was the accused who told the victim that
as first “Covid Test” is “Positive”, another test has to be
carried out by obtaining “vaginal fluid” and, therefore, in
her presence, the said sample was obtained.
Her further cross examination is on the point of
identification of the accused. She admitted that at the
relevant time, the person who obtained the sample was
wearing “PPE Kit”. She came to know the name of the
accused from police. She further admitted that she has
not seen the entire face of the accused at the time of
obtaining the sample. She further clarifies that at the
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time of obtaining the sample, she was in a position to
see eyes of the accused.
20. Whether the accused is the same person who
obtained the sample and was allotted the duty of
obtaining the samples, the prosecution placed reliance
on the evidence of Civil Surgeon PW4 Dr.Shamsundar
Nikam, co-employee of the accused PW5 Jyoti Madhait,
and Medical Officer PW6 Dr.Vipin Singh.
21. The evidence of Civil Surgeon PW4
Dr.Shamsundar Nikam shows that the accused was
deputed as “Lab Technician” from 9.7.2020 in “Modi
Trauma Care Hospital at Badnera” and since then he was
working there. He was allotted with duty to obtain the
samples who are suspected “Corona Patients”. He
further testified that the test result of “Rapid Antigen
Test” requires half an hour. For detecting the corona
virus, sample of “vaginal fluid” is not required and there
is no permission to obtain such samples. His evidence
shows that PW5 Jyoti Madhait, one Nandkisohor, Nitin,
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and Ankita were co employees of the accused on
28.7.2020. The responsibility of obtaining the samples
was allotted to the accused and responsibility of taking
entry of the names of patients, who approached for said
“Rapid Antigen Test”, was of Jyoti Madhait, who was
“Data Operate.” His evidence specifically shows that
except the accused, no other person was permitted to
obtain the samples. He informed the said information to
the Investigating Officer.
The cross examination of the said witness is to the
extent that “Modi Trauma Care Hospital at Badnera” is
run by the Amravati Municipal Corporation and the
employees in the hospital were of Amravati Municipal
Corporation and, therefore, he is not personally aware
about the same. He clarified that the presence of the
accused on the day of the incident in “Modi Trauma Care
Hospital at Badnera” reveals from the documents.
22. Similarly, PW5 Jyoti Madhait also testified that the
responsibility of obtaining the samples was of the
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accused and she was “Data Operator” on the day of the
incident. She further stated that on the day of the
incident, employees of the “Walmart” had been to the
centre to undergo “Antigen Test” and it was the accused
who was assigned the work of obtaining the samples and
she has taken the entry of the said persons. She
admitted that the police have not collected any
information as to the entries of the names of the persons
who have undergone the said test on that day.
23. Medical Officer PW6 Dr.Vipin Singh, examined the
victim who also testified that he was working as Medical
Officer at “Modi Trauma Care Hospital at Badnera”. The
Amravati Municipal Corporation had directed me to make
available the space in the hospital for starting “Rapid
Antigen Test Centre.” The required temperature for the
test centre was 25°C and, therefore, they vacated the
operation theater for that purpose. The accused was
working there and brought by Dr.Rajurkar who introduced
the accused to him. The accused was working as “Lab
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Technician”, Jyoti Madhait was working as “Data
Operator”, and Nandkishor was working as “Peon”.
The cross examination of the said witness shows
that he was an “Orthopedic Surgeon” and being a doctor
he has general information as to the “Covid Test”. He
was not present at the relevant time in the hospital.
Thus, an attempt was made to show that the said
witness is not aware about the incident.
24. PW7 Amardeep Wadadkar, acted as pancha in
whose presence spot panchanama was drawn as well as
the police prepared seizure panchanama. His evidence is
not shattered during the cross.
25. PW8 Shubhangi Gulhane, PW10 Punjab Wanjari,
PW11 Sudam Asore, and PW12 Sohail Shaikh are the
Investigating Officer who narrated about the
investigation carried out of by them. PW9 Rupa Hajare is
the Police Constable in whose presence the report was
recorded.
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26. The Chemical Analyzer’s Reports Exhibits-10 to 12
show that Exhibit-8 is the “vaginal swab”, “vaginal
smear”, and “Blood Samples” of the victim. The “Blood
Sample” of the victim was analyzed as Blood Group “A”.
Exhibit-12 is the report of “Blood Sample” of the
accused.
27. On the basis of the above evidence, learned Judge
of the trial court held the accused guilty by observing
that definition under sub-clause (b) of Section 375 of the
Indian Penal Code shows that a man is said to commit
“rape” if he inserts, to any extent, any object or a part of
the body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so with
him or any other person.
The “Explanation” given under the said Section
shows that, “for the purpose of this Section, “vagina”
shall also include labia majora.”
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For reference, said Section 375 of the Indian Penal
Code which deals with definition of “rape” is reproduced
as under:
375. Rape.– A man is said to commit “rape” if
he–
(a) penetrates his penis, to any extent, into
the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or
any other person; or
(b) inserts, to any extent, any object or a
part of the body, not being the penis, into
the vagina, the urethra or anus of a woman
or makes her to do so with him or any other
person; or
(c) manipulates any part of the body of a
woman so as to cause penetration into the
vagina, urethra, anus or any part of body of
such woman or makes her to do so with him
or any other person; or
(d) applies his mouth to the vagina, anus,
urethra of a woman or makes her to do so
with him or any other person, under the
circumstances falling under any of the
following seven descriptions:
First.Against her will.
Secondly.Without her consent.
Thirdly.With her consent, when her
consent has been obtained by putting…..22/-
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her or any person in whom she is
interested, in fear of death or of hurt.
Fourthly.With her consent, when the
man knows that he is not her husband
and that her consent is given because
she believes that he is another man to
whom she is or believes herself to be
lawfully married.
Fifthly.With her consent when, at the
time of giving such consent, by reason
of unsoundness of mind or intoxication
or the administration by him personally
or through another of any stupefying or
unwholesome substance, she is unable
to understand the nature and
consequences of that to which she
gives consent.
Sixthly.With or without her consent,
when she is under eighteen years of
age.
Seventhly.When she is unable to
communicate consent.
Explanation 1. For the purposes of this
section, “vagina” shall also include labia
majora.
Explanation 2. Consent means an
unequivocal voluntary agreement when the
woman by words, gestures or any form of
verbal or non-verbal communication,
communicates willingness to participate in
the specific sexual act:
Provided that a woman who does not
physically resist to the act of…..23/-
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penetration shall not by the reason only
of that fact, be regarded as consenting
to the sexual activity.
Exception 1.A medical procedure or
intervention shall not constitute rape.
Exception 2.Sexual intercourse or sexual
acts by a man with his own wife, the wife
not being under fifteen years of age, is not
rape.
28. Thus, the act of the accused, proved by the victim
and PW3 Supriya Vitekar, is covered under the definition
of rape given in Section 375(b) of the Indian Penal Code.
29. Now, only question is, whether the consent of the
victim to obtain sample was valid consent.
30. Section 90 of the Indian Penal Code, reads as
follows:
90. Consent known to be given under fear or
misconception. –A consent is not such a
consent as it 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…..24/-
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Consent of insane person. — if the
consent is given by a person who, from
unsoundness of mind, or intoxication, is
unable to understand the nature and
consequence of that to which he gives his
consent; or
Consent of child. — unless the contrary
appears from the context, if the consent is
given by a person who is under twelve years
of age.
31. The evidence on record, especially of PW1 victim
and PW3 Supriya Vitekar, shows that it was told to them
by the accused that sample of “vaginal fluid” is required
to ascertain whether the victim is suffering from “Covid”
or not.
32. The evidence of PW4 Dr.Shamsundar Nikam, who
was serving as “Civil Surgeon” at the relevant time,
specifically shows that for “Corona Test”, samples from
“naustril” are to be taken and report of the same can be
given within half an hour. He specifically stated that
there is no procedure for obtaining “vaginal fluid” sample
to ascertain whether patients are suffering from “Corona
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25
Virus” or not. He clarified that there is no such
permission to obtain sample from “vaginal fluid”.
33. PW6 Dr.Vipin Singh, also stated that no such
sample is required as far as testing of “Corona Virus” is
concerned.
34. Thus, the evidence specifically states that
whatever impressed by the accused, that “vaginal fluid”
is required to ascertain whether the victim is suffering
from “Corona Virus” or not, was not at all required. The
evidence of experts shows that neither such samples are
required nor it is permissible.
35. Thus, the act of the accused sufficiently shows
that under the misconception of fact, such sample is
required and obtained the consent from the victim to
take sample and obtained the samples. Misconception of
fact is, when someone gives consent to an act based on
false or misleading facts which is not consent at all.
36. Section 90 of the Indian Penal Code though not
gives an exhaustive definition of consent, normal
…..26/-
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connotation and concept of consent requires to be taken
into consideration. The consent obtained in the present
case is under misconception of fact. Under the said
Section, consent obtained under misconception of fact is
not a valid consent. The expression “under
misconception of fact” is broad enough to include all
cases where consent is obtained by misrepresentation.
The misrepresentation should be regarded as leading to
a misconception of facts with reference to which the
consent is given. As per Section Section 3 of the Indian
Evidence Act, Illustration-D, a person has certain
intention is treated as a fact.
37. So, in the present case, the fact about which PW2
the brother of the victim and PW3 Supriya Vitekar stated
shows that under misconception of fact “vaginal fluid”
sample is required, the consent was obtained from the
victim and by inserting swab stick, the sample was
obtained. The said act is sufficient to show that under
misrepresentation, the accused has obtained the consent
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and that misrepresentation sufficiently shows his
intention.
38. The intention of the accused can be gathered from
the circumstance that out of 20 employees, he only
called the victim for “vaginal swab” and obtained her
“vaginal swab” under the misconception of the fact that
the said swab is required.
39. As far as defence of the accused is concerned, the
swab was obtained to ascertain whether the victim is
suffering from “Corona Virus” or not, is also washed out
in the light of evidence of Civil Surgeon PW4
Dr.Shamsundar Nikam who specifically stated that no
such samples are required and there is no permission to
obtain such samples.
40. Another defence of the accused, that he is victim
of misidentity, is also has no substance as his identity is
not only stated by PW1 victim and PW3 Supriya but also
it is established through the evidence of Civil Surgeon
PW4 Dr.Shamsundar Nikam who stated that the accused
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was deputed at “Modi Trauma Care Hospital at Badnera”
as “Lab Technician” and was allotted duty of obtaining
samples.
41. PW6 Dr.Vipin Singh, has also stated that he knows
the accused as he was introduced by Dr.Rajurkar of
Amravati Municipal Corporation and was deputed at
“Modi Trauma Care Hospital at Badnera” for obtaining
swabs/samples for “Rapid Antigen Test”.
42. Thus, beyond doubt, it was established by the
prosecution that it was the accused who obtained the
sample of the victim which was not required under the
misconception of fact.
43. Initially, sub-clause (b) of Section 375 of the Indian
Penal Code was not covered under the definition of
“rape”. By amendment, the said clause was introduced
and now in view of the amended definition, a man is said
to commit “rape” if he inserts, to any extent, any object
or a part of the body, not being the penis, into the
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29
vagina, the urethra or anus of a woman or makes her to
do so with him or any other person.
44. The accused is also convicted for offence under
Section 354 of the Indian Penal Code.
45. Section 354 of the Indian Penal Code, deals with
assault or use criminal force with an intent to outrage
modesty of any woman.
46. Regarding ingredients of outraging modesty of a
woman and what amounts to modesty of a woman, the
Hon’ble Apex Court in the case of Aman Kumar and
another vs. State of Haryana5, held that Essential
ingredients of the offence punishable under Section 354
of the Indian Penal Code are that the person assaulted
must be a woman, and the accused must have used
criminal force on her intending thereby to outrage her
modesty. What constitutes an outrage to female
modesty is nowhere defined. The essence of a woman’s
modesty is her sex. The culpable intention of the
5 (2004)4 SCC 379
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344 apeal143.23
30
accused is the crux of the matter. The reaction of the
woman is very relevant, but its absence is not always
decisive. Modesty in this Section is an attribute
associated with female human beings as a class. It is a
virtue which attaches to a female owing to her sex.
47. A great emphasis is on the modesty of a woman in
Indian Society.
48. The offence of outraging modesty of a woman is
not limited to physical acts of violence but also included
any verbal or non verbal conduct that is intended to
insult the woman. The act of outraging female’s
modesty refers to the virtue that attaches to a female
owing to her gender and is an attribute associated with
females in general. The modesty to a woman has
evolved as altogether a different concept which has very
little to do with the physique of the woman. The moral
modesty of a woman is said to be the sense of shame or
bashfulness that a woman feels when faced with any act
that is intended to outrage her modesty. The
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344 apeal143.23
31
psychological modesty of a woman is said to be her
innate sense of self-respect and dignity.
49. As discussed hereinabove, the illegal act of the
accused by keeping the victim under the misconception
that her “vaginal swab” is required and inserting “Covid
Testing Stick” into “vagina” of the victim under the
pretext of taking her sample and subsequently getting
knowledge by the victim that such sample was not
required gives her sense of shame or bashfulness which
is sufficient to attract the offence under Section 354 of
the Indian Penal Code which is established by the
prosecution beyond reasonable doubt. Therefore, the
conviction imposed by learned Judge of the trial court is
on the basis of legal evidence.
50. Learned counsel for the accused vehemently
submitted that the sentence of the accused be reduced
considering no force was used by the accused, no
criminal antecedents are against the accused, no injury
received by the victim, young age of the accused, and no
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344 apeal143.23
32
pre-planning and, therefore, the said mitigating
circumstances sufficiently show that he has made out a
case for reducing the sentence. In support of his
contentions, he placed reliance on the decisions of the
Hon’ble Apex Court in the cases Zindar Ali Sk vs. State
of W.B. and Raju vs. State of Karnataka supra
wherein the Hon’ble Apex Court considered that incident
took about six years back and the accused was behind
the bar for last five years and reduced his sentence.
51. Perusal of the definition of “rape” given under
Section 375 of the Indian Penal Code shows that
punishment for the same is given under Section 376 of
the Indian Penal Code. Section 376(1) of the Indian Penal
Code deals with punishment for “rape” which states that
whoever, except in the cases provided for by sub-section
(2) commits sexual assault shall be punished with
imprisonment of either description for a term which shall
not be less than ten years but which may extend to life
imprisonment and shall also be liable to fine. The
wordings are, the punishment shall not be less than ten
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344 apeal143.23
33
years are inserted by Act of 22 of 2018 and it came into
effect from 21.4.2018.
52. Thus the above provision came into play after the
amendment by the Act of 22 of 2018 from 21.4.2018.
Therefore, the decisions of the Hon’ble Apex Court in the
cases Zindar Ali Sk vs. State of W.B. and Raju vs.
State of Karnataka supra are prior to the amendment.
53. As far as the provision under Section 376(1) of the
Indian Penal Code is concerned, discretion is not left at
the hands of the court to reduce the punishment. The
said Section states that if the offence is proved, the
accused should not be punished by imposing less than
ten years sentence.
54. Turning to the present case, the crime is “rape”
which is a crime against the society and crime against
human dignity. Once such offence is proved, treating it
lightly by imposing lesser punishment, itself is an affront
to the society.
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344 apeal143.23
34
55. The Hon’ble Apex Court in the case of Shimbhu
and anr vs. State of Haryana6 observed that
Punishment should always be proportionate/
commensurate to the gravity of offence. Religion, race,
caste, economic or social status of the accused or victim
or the long pendency of the criminal trial or offer of the
rapist to marry the victim or the victim is married and
settled in life cannot be construed as special factors for
reducing the sentence prescribed by the statute.
56. Thus, considering that the offence committed by
the accused is established by the prosecution, the
standard of proof required to prove the cases and the
prosecution has adduced the evidence to the extent of
the said standard of proof which is expected and in the
light of observation of the Hon’ble that once the offence
is proved, treating it lightly, would be an affront of the
society. Moreover, sympathy to the accused in such a
scenario would be miscarriage of justice.
6 2013 ALL MR (cri) 3306 (SC)
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344 apeal143.23
35
Therefore, the contentions of learned counsel for
the accused are not acceptable and sustainable.
57. Thus, for all above reasons, I do not find any
merits in the submissions of learned counsel for the
accused.
58. In the result, the appeal deserves to be dismissed
and the same is dismissed.
59. Fees of learned counsel Shri G.L.Agrawal
appointed for the accused and learned counsel
Mrs.A.Mishrikotkar appointed for respondent No.2/victim
are quantified and the same be paid to them as per
Rules.
Appeal stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge …../-
Date: 23/01/2025 10:53:42