ORIGINAL JURISDICTION - Orissa High Court

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the imposition of fine of Rs.500/-, in default to undergo simple
imprisonment for one month more. So far as the offence under section 323,
I.P.C. is concerned, learned Addl.Sessions Judge modified the sentence and
directed the petitioner to pay a fine of Rs.500/- only thereby setting aside the
sentence of imprisonment for the offence under section 323, I.P.C. Such
confirming judgment with modification of sentence is challenged in this
Revision.
4. In course of hearing, learned counsel for the petitioner assailed the
finding of the appellate court by raising the following points:-
(j) The prosecution case can not be believed as
there are material infirmities in it and there are contradictions in
the evidence of P.W.4;
(ii) The prosecution has failed to prove that the petitioner assaulted
the informant with intention to outrage her modesty or with the
knowledge that her modesty would be outraged; and
(iii) That the sentence imposed is excessive.
5. The learned trial court accepted the version of P.W.4 i.e. the injured as
her evidence was corroborated by the testimony of P.W.1 and medical
evidence on record. Such finding of fact has been accepted by the learned
appellate court. So there is no cogent reason to disturb the findings of fact
recorded by the courts below, wherein they have come to the concurrent
findings that on 01.10.1988 at about 9 P.M., the petitioner assaulted the
INDIAN LAW REPORTS, CUTTACK SERIES [2010]
informant. But the contention of the learned counsel for the petitioner is that
even if such finding of fact is accepted an offence under section 354 is not
made out, in as much as, the prosecution has failed to prove that the
accused petitioner had the intention of outraging the modesty of the injured.
In this connection, it is apposite to refer to the evidence of P.W.4, P.W.4 has
stated in her examination-in-chief:-
“xxx accused Bimbadhar is my husband. Accused Dhruba is the
younger brother of my husband. Accused Laxmidhar is my father-inlaw,
accused Kelu Charan is the uncle of my husband (Malasura).
About two years back in the night at about 9 P.M. in our house, the
incident took place. There was quarrel between my husband and
myself. Accused Kelu came and told other accused persons to
assault me by means of “Katha” (i.e.Lathi). Accused Kelu put that
Katha on my neck and stood on that Katha. I was on the ground. The
wife of Kelu dragged away Kelu. I sustained bleeding injury on my left
nipple due to action of the accused persons. I lodged the F.I.R. xxx”
6. Coming to examine the contention that the above accepted fact
does not constitute an offence under section 354 of the I.P.C., it is apposite
to refer to the said section, which reads as under :-