Shrikant Tripathi, Member (J):
1. The applicant, M.K. Mishra, Ex POELP No. 169764-B filed this Original Application (appeal) challenging the verdict of the Court Martial, whereby he was found guilty of the charge under Section 354 of the Indian Penal Code read with Section 77(2) of the Navy Act, 1957 and was accordingly dismissed from the service.
2. In this order we will not disclose the identity of the victim and so she will be referred to as the 'victim'. The names of her parents will also not be disclosed and they will be referred to as 'father' or 'mother', as the case may be.
3. The story leading to the trial of the applicant is that on 9th February, 2008 at about 15.50 hrs., he met the victim and her sister, while they were going to the shopping complex at Sailors Married Accommodation for recharging their mobile phone. He offered them a lift to the shopping complex. Both the victim and her sister accepted his offer as they were taking tuition along with his daughter with the same tutor. On reaching the shopping complex they found that the complex was closed, so the applicant pretended to drop them to their house, but he however misled the girls and took them to his residence. He unlocked the door of his residence. All of them went inside the residence. Both the girls directly went to the television room and sat on the bed, which was in front of the television. It is also alleged that the applicant then bolted the door from inside, switched on the television for the girls, stripped to his underwear and climbed on the bed next to the victim. He covered himself with a blanket and asked the girls to lie down. After that, he pulled the victim under the blanket and told her to hold his penis. He lowered his underwear upto his knee and held the victim on his bare body. He also touched the genitals of the victim with his penis. It is further alleged that the applicant, in the mean time, sent the sister of the victim to the shopping complex to recharge the mobile. When she came back from the shopping complex, she saw her sister, the victim, lying on the top of the applicant. On her arrival from the shopping complex, the victim asked for the toffee as this witness had been required to bring toffee also from the shopping complex. So the witness again went to the shopping complex to purchase toffee and returned after purchasing the same and found that the victim was sitting on the bed. After some time the girls left the house. While they were leaving, the applicant advised them not to disclose any one regarding their visit to his house. The girls went home and after that along with their elder sister, went for tuition. The girls narrated the incident to their tutor, who advised them to report the matter to their parents. On reaching home, they narrated the whole incident to their father.
4. It is also alleged that the father of the victim went to Chakra-GB and saw the applicant lying on the floor under the influence of alcohol with only a lungi on him. When asked about the incident, the applicant refuted the incident and told that he had only kissed the girls. Thereafter the father went to the shopping complex, as he did not know what to do. Later on his wife, along with the three daughters, came to the shopping complex and asked him whether he had lodged any complaint to the police, to which he replied in the affirmative, though he had not actually lodged any complaint as he was worried about the impact of the incident on the future of his children.
5. On 12th February 2008 at about 10.00 hrs., the mother of the victim went to the Naval Wives Welfare Association Centre at SMA Rameshwaram and met Mrs. Vasna Ramesh, W/o. Puthiya Purayil Ramesh Chandra, Petty Officer, Mechanical Engineering, Indian Navy of Indian Naval Ship, Vernduruthy for lodging a complaint. The mother of the victim narrated the entire incident to Mrs. Vasna Ramesh, who told her to lodge a complaint at the Naval Police Station Rameshwaram. Subsequently the mother of the victim lodged a written complaint at the Naval Police Station, SMA, Rameshwaram. Thereafter, Lt. Cdr.At-Arms Milton Sharma (04774Z), Indian Navy of Indian Naval Ship, Dronacharya, Assistant Naval Provost Marshal (Fort Kochi) (ANPM) reached the Naval Police Station SMA Rameshwaram and at about 11.30 hrs., informed the Officers in Charge of COMNETCEN(K) and ND School about the incident and requested them to send the father of the victim and the applicant along with their respective Divisional Officers to the Naval Police Station SMA Rameshwaram.
6. At about 12.30 hrs. the same day, while the father of the victim was in his office, the Officer-in-Charge of COMNETCEN (K), Captain (Time Scale) Kamal Singh Dadhwal, No. 01948A, Indian Navy of Indian Naval Ship, Venduruthy called for the father of the victim and told him to proceed to SMA Rameshwaram Police Station along with his Divisional Officer, Cdr. (Time Scale) Himadri Shekhar Roy No.02073K, Indian Navy of Indian Naval Ship, Venduruthy immediately. At about 21.00 hrs., the same day, the victim and the applicant were taken to the Indian Naval Hospital Ship Sanjivani for medical examination. The parents of the victim and the Divisional Officers of both the sailors accompanied them. Surgreon Lt. Cdr. Pulikkottil Vinny Wilson, Medical Specialist No. 75655-T, Indian Navy of Indian Naval Hospital Ship Sanjivani, the Duty Medical Officer, took the victim to the Gynecology Outpatient Department and undertook the medical examination in the presence of Surgeon Cdr. Anupam Kappur No.75410 K, the Duly Gynecologist. The general behavior and mental state of the victim was normal. She remained cooperative during the examination, but denied trauma to other parts of the body except her genitals. Medical examination of the applicant was also carried out. Nothing abnormal was diagnosed and it was also confirmed by Surgeon Lt. Cdr. Pulikkottil Vinny Wilson, Medical Specialist from the applicant that he had not undergone vasectomy. Later the applicant was handed over to Lt. Cdr.-At-Arms Milton Sharma.
7. On 29th May, 2008 the applicant was brought before the Commanding Officer, Indian Naval Ship Venduruthy for summary trial. He was granted the option for trial by Court Martial in accordance with Regulation 30 of the Regulations for the Indian Navy Part II. On 30th May 2008 the applicant opted to be tried by Court Martial. He was accordingly tried by the Court Martial.
8. During the Court Martial as many as 14 witnesses were examined to prove the aforesaid charge. PW1, Brijesh Kumar Lema , was posted at the Police Station Rameshwaram. He was handed over a written complaint by the mother of the victim, who had come there along with the victim, her other daughters and two other ladies. PW2, Bijumon Sebastian, was said to have received a telephonic call from PW1 Brijesh Kumar regarding the incident, so he also went to the aforesaid Police Station and after necessary formalities sent the victim to the hospital. PW3 is the father of the victim, who proved the age of the victim as nine years and produced in support thereof a copy of the Transfer Certificate, Ext.P1, issued by the School concerned. He further supported other relevant part of the story regarding the incident. PW4, Surg Cdr Anupam Kapoor, stated that he was on duty at INHS Sanjivini on 12th February 2008. The victim was brought before him for medical examination. According to this witness, the medico legal examination of the victim was carried out by Sur. Lt. Cdr. Vinny Wilson, who was the Duty Medical Officer on that day. This witness proceeded further to state detailed history of the incident narrated by the victim, apart from her general examination and also genital examination. He further stated that there were no trauma or injury anywhere on the body of the victim, who was a pre-adolescent girl and her breast was not yet developed. Neither pubic hair nor auxiliary hair was seen. The libia was under developed. According to this witness, there was no obvious aberration on the genital area and the hymen was found intact. He further clarified that during the course of medical examination he did not notice any sign of violence and struggle. According to this witness the victim had stated the entire incident to him during the course of her general examination. He further clarified that he acted in the advisory capacity of the case because medico legal case was to be done by the duty Medical Officer, who recorded the entire thing in the medico legal register.
9. PW5 is the victim. She has supported the prosecution story from the beginning to the end in all material particulars. The statement of the victim and other witnesses were recorded by the Court Martial in the question - answer form. Some of the questions put to the victim and answers made by her during the trial are very relevant on the merits of the case, which are being reproduced as follows:
Q.361 What happened on your way to the shopping complex?
Ans. That time I saw my friend Shruti's father and he pushed me from the bike.
Q.362 Do you know Mishra uncle previously?
Ans. Yes Sir.
Ans. Because he is my friend Shruti's father.
Q.364 Shruti is in same class as yours?
Q.365 Then how do you know her?
Ans. Because she is in my tuition centre.
Q.366 What did Mishra uncle tell while sitting in his motorcycle?
Ans. Mishra uncle asked me where I was going.
Q.367 What was your reply?
Ans. My reply was that I was going to the shopping complex.
Q.368 What did Mishra uncle tell you after that?
Ans. Thereafter Mishra uncle told me to sit on my bike I am going where you are going.
Q.369 How did both of you sit on the motor bike?
Ans. First I sat on the bike and then my sister.
Q.370 Behind Mishra uncle?
Q.371 What happened at the shopping complex?
Ans. My sister got down from the bike and Mishra uncle told to check whether the shopping complex is open or not. Then Gita went to the shopping complex.
Q.372 What time Gita came back?
And. Immediately Gita came back from the shopping complex.
Q. 373 What did she tell?
Ans. She told shopping complex is not opened.
Q.374 What did Mishra uncle tell you after that?
Ans. Thereafter Mishra uncle told that he will drop us back to home.
Q.375 What did you tell Mishra Uncle?
Ans. We will wait here till the shopping complex will be opened.
Q.376 Then What happened?
Ans. Thereafter Mishra uncle told that œNo I will drop you back home.?
Q. 377 Did he drop you at your home?
Q.378 Where did he take you?
Ans. He took us to his house.
Q.379 What is the address of his house?
Ans. Chakra GB.
Q.380 Where did he park his motor bike?
Ans. At the rear door.
Q.381 Did he enter the house from the main door?
Q.382 From where did you enter?
Ans. From the rear entrance.
Q.383 Was it open?
Q.384 Who opened it?
Ans. Mishra uncle.
Q.385 After entering the house where did you go?
Ans. I went straight to the TV room.
Q.386 Who switched on the TV?
Ans. Mishra uncle.
Q.387 Where did you sit in the TV room?
Ans. On the bed.
Q.388. What happened thereafter
Ans. Mishra uncle told me to lie down and rest.
Q.389 where did Mishra uncle go?
Ans. Mishra uncle was in the same room behind the door and he was changing his clothes.
Q.390 What clothes did he change into?
Ans. He was in underwear.
Q.391 What happened thereafter?
Ans. Thereafter Mishra uncle laid down on the bed and he wrapped the bed sheet over me. He then called me towards him and took me on top of himself.
Q.392 Who was holding the mobile phone and money?
Ans. My sister Gita.
Q.393 What did Mishra uncle do after that?
Ans. Thereafter Mishra uncle snatched the money and mobile phone from my sister Geeta.
Q.394 What happened thereafter?
Ans. Thereafter Mishra uncle snatched the money and mobile to get her closer to him.
Q.395. What did he do to you?
Ans. He told me to touch his susu with my hands.
Q.396. Did you do that?
Q.397. After that what did he do?
A. he put his susu into my susu.
Q.398. Did you feel any pain
Q.399. Where did you feel pain
Ans. where he touched me
Q.400 which part
Ans. I felt pain in my susu part.
Q.401 Did at any time you try to escape?
Q.402 Then why you could not do so?
Ans. Because he was holding me very tightly.
Q.403 Where was Geeta?
Ans. Geeta was looking at us.
Q.404 Where was she sitting?
Ans. She was sitting close by.
Q.405 Could you speak to Geeta?
Q.406 Who went to charge the mobile?
Ans. My sister Geeta.
Q.407 When did she go?
Ans. When I told her that she could go for mobile charging.
Q.408 What time, did Geeta report back.
Ans. She came back early.
Q.409 Where were you at that point of time?
Ans. That time I was top of uncle.
Q.410 What did Geeta tell after coming back?
Ans. Thereafter she told this is the cell phone. Then I asked her where is the toffee?
Q.411 What did Geeta tell?
Ans. Geeta told that she forgot to get the toffee.
Q.412 What happened thereafter?
Ans. Thereafter I sent her again to get the toffee.
Q.413. Throughout the time, was Mishra uncle holding you ?
Q.414 At what time did he release you?
Ans. When his daughter was about to come back from tuition.
Q.415. How did you know that his daughter is about to come after tuition?
Ans. Because his daughter's tuition was before mine.
And my tuition is after her tuition.
Q.416 What point of time you left the house?
Ans. When she got the toffee thereafter we both left the house.
Q.417 What did Mishra Uncle tell you while leaving the house?
Ans. Mishra Uncle told that you must not tell anybody about this incident, because your mother will scold you.
Q.431. Did you tell your mother that your body was paining?
Q.432. Which portion was paining?
Ans. My whole body was paining.
Q.459. Which part you said paining?
Ans. susu part.
Q.483 If uncle misbehaved with you, you would have told your sister on the very bed ?
Ans. I was not able to understand what was happening inside.
Q.545. whether Geeta was watching this?
Ans. No because he had wrapped the bedsheet over me then how will Geeta know what he is doing with me.
Q.546. If uncle was tightly holding you, you cannot speak. Am I right?
Ans No he was not holding me very tightly, he was holding me slightly tightly.
Q.557. You know uncle at any time has misbehaved with you?
Ans. Yes, uncle had kissed me on my lips.
Q.558. You were sitting on top of uncle, both legs on one side or either side?
Ans. my legs were apart.
In this way the victim supported the entire prosecution story without any material variance.
10. PW6, Cdr. P. Ravi, proved that the accommodation where the incident took place was also in occupation of the applicant. PW7 is the sister of the victim, who was about 10 years at the time of the incident. She had proceeded for recharging the mobile phone along with the victim. She has also supported the prosecution story that the applicant took her and the victim to his house. After that she and the victim both sat on the bed to watch the television. The applicant also came to the bed wearing an underwear only. She further supported the story that the applicant told both the girls to lie down on the bed. This witness further supported the incident of putting the victim on the top of the accused by him and holding her forcibly. She further supported the story that she went again to the shopping complex to recharge the mobile phone leaving the victim and the accused inside the house and after the recharge when she came back she noticed that the victim was on the top of the accused. It is also stated by this witness that the victim asked for toffee, but she replied that she had forgotten to buy toffee, so she again went to the shopping complex to purchase toffee. After purchasing toffee, when she came back to the house of the accused she found that the victim was sitting on the bed. She further stated that before leaving the house of the accused, the accused warned not to disclose the incident to their Mummy otherwise she will scold them. In this way, this witness supported the entire incident and corroborated the story narrated by the victim.
11. PW8, Surg. Lt. Cdr. Pulikkotil Vinny Wilson, was the Medical Specialist at INHS, Sanjivini. This witness made the statement on the basis of the medico legal register, a copy whereof is on record as Ext.P2. This witness stated that Surg. Cdr. Anupam Kapoor also examined the victim. This witness further clarified that there was no aberration marks of struggle on the girl. There was no aberrations or injury. The genital examination revealed any bruises or aberrations at the entry. Apart from this there was nothing very abnormal. Mental state was also quite normal. The witness further proved the medico legal case sheet, Ext.P3.
12. PW9, Mrs. Usha Devi, is not a witness of the fact. She had accompanied the victim and her mother when they went to the Police Station to lodge the complaint. PW10, George John, has proved the posting of the accused at the relevant time. PW11 is the mother of the victim, who has supported the story of the incident as narrated by the victim and her sister and has also supported the story of lodging the complaint at the Police Station. Accordingly she proved the complaint, Ext.6. PW12, Vasna Ramesh, was in charge of the Naval Sailors' Wives Women's Association Centre, to whom the victim's mother along with the victim and others narrated the whole incident. This witness supported the prosecution case to this extent. PW13, Miss Kiran Kumari, used to impart tuition to the victim, her sister and also the daughter of the accused. According to this witness, the victim and her sister narrated the incident to her when they had come to receive tuition. On hearing the incident, she advised them to disclose the incident to their parents. PW14, Lt. Cdr. At-Arms Milton Sharma, was posted as Regulating Officer, INS, Dronacharya. He used to discharge, inter alia, the duty as Oi/C SMA Naval Police Station Rameshwaram. He got information telephonically regarding the incident from the Naval Police Station Rameshwaram.
13. Apart from the aforesaid oral evidences, the prosecution produced Exts.P1 to P5. Ext.P1 is the Transfer Certificate produced to show her age at the time of the occurrence. Ext.P2 is the copy of the medico legal case sheet of the victim. Ext.P3 is the medico legal case sheet of the accused (applicant). Ext.P4 is the Genform of the applicant. Ext.P5 is the copy of extract from the incident book maintained at the Naval Police Station, SMA, Rameshwaram.
14. The applicant denied the charge and contended that the allegations made by the victim and her sister against him were not correct. He examined his own daughter, DW1, Miss. Shruti Mishra in defence, who was about 12 years at that point of time and was a student of Class VIII. She admitted that she used to attend the tuition class and Kiran deedi was the tutor. She further stated that on 12th February 2008, the victim and her sister had not attended the tuition class.
15. The Court Martial, after considering the prosecution as well as the defence evidence arrived at the conclusion that the aforesaid charge levelled against the applicant was proved beyond all reasonable doubts. Accordingly the Court recorded the finding of guilt and decided to dismiss the applicant from service with consequential penalties. The applicant preferred a petition before the second respondent (Chief of Naval Staff) against the findings of the Court Martial, but the petition was dismissed by him vide Annexure A- 1(2), which was communicated to the applicant vide Headquarters Southern Naval Command letter dated 21st December, 2010 vide Annexure A1(1).
16. We have heard Mr. Chittayam R. Sathish Kumar for the applicant and Mr. K.M. Jamaludheen for the respondents and perused the records.
17. The learned counsel for the applicant submitted that the statement of the victim was not worthy of credence, which was nothing except a tutored statement. In order to substantiate his submissions, the learned counsel for the applicant referred to the statements of the victim pertaining to the questions, 395 to 412, 441, 479 to 481, 492, 493, 500, 516, 525 to 536, 540, 544, 554, 556, 561, 562, 567, 573, 578 to 580 and 590 and contended that the blanket could cover the victim only upto the neck if she had been sitting on the chest of the applicant face to face. If she was sitting in the opposite direction, it was quite impossible to cover the neck. He next contended that in such position it was not possible for the victim to hold the genital part of the applicant. It was also quite impossible for the accused to put his genital part into the genital part of the victim. Referring to the answer of the victim pertaining to Q.No.397, the learned counsel for the applicant submitted that if the answer to Q.No.397 was correct there must have been penetration, but the medical report clearly indicated that the hymen was in tact and there was no injuries or aberration on the private part of the victim. It was also nowhere stated that the accused removed the underwear of the victim and put his genital part into the genital part of the victim.
18. The learned counsel for the applicant proceeded further to contend that it was the victim, who told her sister to get charge of the mobile and she again told her to go and buy toffee. If the applicant had been holding her tightly, she could not speak to her sister so freely and her sister could have noticed it. The learned counsel for the applicant pointed another discrepancy in the prosecution evidence that the victim, instead of telling the whole incident to her mother, kept silence and proceeded for tuition as usual. He next contended that the story that the victim had pain was also false. He next contended that it was quite improbable that the accused would remove his clothes in the presence of two female children and wear underwear only. More so, it was highly improbable to sexually misbehave the victim in the presence of her sister.
19. In our view, the aforesaid facts and circumstances, as pointed out by the learned counsel for the applicant, do not go to the root of the case. The victim or her family members had no animus whatsoever against the applicant. They had also no illmotive or other reasons to falsely implicate him. The victim as also her sister were small children below 10 years of age, so they had no idea of sexual relations. It appears that the applicant utilised their ignorance and took advantage of the situation. Wearing an underwear by a male in the presence of two small children of the age of 9 or 10 years cannot taken, either as improbable or beyond expectation.
20. It is true that the victim and her sister both initially sat on the same bed. But it is not the statements of the victim and her sister that the applicant after coming on the bed immediately put the victim on the top of his body. Rather they have clearly stated that they, after entering into the room, straight way sat on the bed to watch the television, and after that the applicant also came on the bed in an underwear and covered himself with a blanket and then asked the victim and her sister to lie down on the bed. After that he pulled the victim under the blanket and told her to hold his penis. So, the contention that it was not possible for the victim to hold the applicant's genitals seems to be baseless. If the victim's sister did not disclose the facts pertaining to the outraging the modesty of the victim, it cannot be inferred that the incident was false because the possibility that the victim's sister might not have either noticed the incident or understood the incident cannot be ruled out. It is true that the victim sat on the chest of the applicant, but there is no evidence that this position remained from beginning to the end, so the improbability being pointed out on behalf of the applicant cannot be accepted. In our view, despite lengthy cross examination, the statements of the victim and her sister could not be shaken on any material particulars, especially when their statements find corroboration from the statements of PW8, Surg. Lt. Cdr. Pulikkotil Vinny Wilson, who stated that the genital examination revealed any bruises or aberrations.
21. The learned counsel for the applicant further tried to contend that the statement of the victim's sister (PW7) is at material variance from the statement of the victim. But on a perusal of the entire statement, not only of the victim but also of her sister, we find that the victim's sister (PW7) corroborated the statement of the victim in all material particulars. If there had been minor variations here and there, they were not required to be given due weight as both the victim and her sister were minor children of 9/10 years old and had no reason to depose falsely against the applicant.
22. The learned counsel for the applicant tried to contend that the victim's mother had found urine or semen like substance on the underwear of the victim. But neither the underwear was produced during the trial nor it was taken into custody for chemical examination. He next contended that if the applicant had in fact put his genitals on the genitals of the victim, there was much possibility of penetration, but there was no such evidence in the present matter, therefore, the story of the prosecution was incorrect. These submissions do not appear to be of any help to the applicant as he was tried for the charge under Section 354 of the Indian Penal Code read with Section 77(2) of the Navy Act. So the omission on the part of the prosecution either to take in possession the underwear of the victim or send the same for chemical examination was not at all material. It was also not material whether there could be or had been any possibility of penetration. The above submissions would have been material if the applicant had been charged under Section 376 of the Indian Penal Code, instead of Section 354 of the Indian Penal Code.
23. As held by the Apex Court in Premiya v. State of Rajasthan, (2008) 10 SCC 81, in para 10, a victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight. The case of Aman Kumar v. State of Haryana, (2004) 4 SCC 379, was no doubt a case of rape, but, in that case, the Apex Court held that victim is not an accomplice, so her testimony was sufficient to record conviction without corroboration. In this case, we have not only the evidence of the victim, but also the evidence of her sister, who has corroborated the victim in all material respects. In our view, the Court Martial was perfectly justified in believing the statements of the victim and her sister.
24. The act of the accused as proved by the prosecution, undoubtedly come within the category of the civil offence punishable under Section 354 IPC. read with Section 77(2) of the Navy Act. The various activities of the accused as proved by the victim and corroborated by her sister, clearly amount to an assault to the victim with an intention to outrage her modesty. In this connection, we consider it just and expedient to refer to certain important decisions. In the matter of State of Punjab vs. Major Singh, AIR 1967 SC 63, the Apex Court observed that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is attributable of her sex. Accordingly, the Apex Court further held that when any act done to or in the presence of a woman is clearly suggestive of sex, according to common notions of mankind, that act must fall within the mischief of Section 354 IPC. In that case, a female child of 7½ months was allegedly subjected to outraging of her modesty.
25. Relying upon the decision in Major Singh's case (supra), the Apex Court held in Rupan Deol Bajaj v. Kanwar Pal Singh Gill and another (1995) 6 SCC 194, that slapping on the posterior of prosecutrix amounted to œoutraging of her modesty?, for it was not only an affront to the normal sense of feminine decency, but also an affront to the dignity of the lady - œsexual overtones? or not, notwithstanding. While holding so, the Apex Court took into account the dictionary meaning of the word 'modesty' and held in paragraph 14 as follows:
œ14. Since the word 'modesty' has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means œwomanly propriety of behaviour; scrupulous chastity of thought, speech and conduct?. The word 'modest' in relation to woman is defined in the above dictionary as œdecorous in manner and conduct; not forward or lewd; shamefast?. Webster's Third New International Dictionary of the English Language defines modesty as œfreedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct?. In the Oxford English Dictionary (1933 Edn.) the meaning of the word 'modesty' is given as 'womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions'.?
26. It may not be out of context to mention that the aforesaid case of Rupan Deol Bajaj v. Kanwar Pal Singh Gill and another (supra) had come before the Apex Court out of a proceeding instituted under Section 482 Cr.P.C. The matter was, however, tried later on as per the law and after the final decision, the matter was brought again before the Apex Court in appeal as Kanwar Pal S. Gill v. State and another, (2005) 6 SCC 161. The Apex Court held in para 4 that the accused (KPS Gill) slapped on the posterior of the prosecutrix in the presence of some guests. The court further held that the act on the part of the accused would certainly constitute the ingredients of Section 354 IPC.
27. The aforesaid principles have been reiterated in Ramkripal v. State of Madhya Pradesh, (2007) 11 SCC 265. In that case, the Apex Court held that modesty in section 354 IPC is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. While laying down so, the Apex Court opined that the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such, as could be perceived as one which is capable of shocking the sense of decency of a woman.
28. The acts of the applicant in sexually assaulting the victim in the aforesaid manner undoubtedly constitute the offence of outraging her modesty within the meaning of Section 354 of the Indian Penal Code.
29. The learned counsel for the applicant next contended that the FIR was lodged with an inordinate delay without any proper explanation, so the prosecution story was doubtful. According to the learned counsel for the applicant the occurrence took place on 9th February, 2008 at about 15.50 hrs. and the FIR was lodged on 12th February, 2008 at about 11.30 hrs. In our view, the father of victim has properly explained the delay. He has clarified that the reputation of his daughters was at stake, so he took time to lodge the complaint. If for argument sake it is assumed that there is no explanation of the delay, even then the delay in lodging the FIR could not be taken as a ground to discard the most clinching and trustworthy statements of the victim and her sister. Consequently the delay in lodging the FIR does not appear to be so material as to discard the entire prosecution story.
30. In the matter of State of Himachal Pradesh v. Prem Singh, (2009) 1 SCC 420, the Apex Court held that the delay in a case of sexual assault cannot be equated with a case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition-bound society prevalent in India, more particularly rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR.
31. A similar view was expressed in the matter of KPS Gill v. State and another (2005) 6 SCC 161. In that case, the Apex Court noticed that there was some delay in filing the complaint, but that by itself was not sufficient to reject the complaint. The prosecutrix therein lodged the complaint with the Chief Secretary and other Officers and raised objections and also sought for stringent action, but when she failed in all such attempts, she filed the complaint. In this view of the matter, the delay was held immaterial to discard the prosecution case.
32. In the matter of Vidhyadharan v. State of Kerala, (2004) 1 SCC 215, the Apex court held that delay in lodging FIR is quite natural in a tradition bound society to avoid embarrassment which is inevitable when reputation of a woman is under concern.
33. We do not therefore consider it proper to give any significance to the alleged delay in lodging the report and as such the same cannot be taken as a ground to discard the prosecution story.
34. In addition to the aforesaid, we would like to observe that the learned counsel for the applicant while putting various submissions, gave stress only on the merits of the case and did not argue anything regarding constitution of, and the legality of the procedure adopted by, the Court Martial. We have, however, ourselves examined as to whether there had been any lapse regarding the constitution of the Court Martial or on its part to hold the trial in a fair and just manner in accordance with the prescribed procedure. In this connection it may be mentioned that the applicant had been represented by an Advocate during the whole trial, who agreed to the continuance of the nominated officers to act as the President and Members of the Court Martial and accordingly proceeded with the trial and defended the applicant to the best of his ability. He not only cross examined the prosecution witnesses, but also adduced defence evidence. More so, the Court Martial provided an opportunity to the accused to explain the circumstances appearing against him in the prosecution evidence, besides providing him an opportunity to adduce defence evidence. In this way, the rights of the applicant to have a fair, just and impartial trial had been duly protected during the Court Martial trial.
35. We are, therefore, of the view that the finding of the Court Martial that the charge under Section 354 of the Indian Penal Code read with Section 77(2) of the Navy Act, 1957 was proved beyond all reasonable doubts against the applicant, was perfectly correct and requires no interference.
36. In our view, even on the point of sentence the appeal has no merit. The Court Martial seems to have adopted a very lenient view on the question of sentence as it did not proceed to pass any sentence of imprisonment against the applicant and merely directed for his dismissal from service. We do not, therefore, consider it proper to interfere with the sentence.
37. The learned counsel for the applicant lastly contended that the Court Martial imposed simplicitor punishment of dismissal from the Naval Service against the applicant, so in such matters the applicant was entitled to receive service pension. He next contended that the service pension and other retiral benefits could be withheld in a case where the sentence of dismissal with disgrace had been imposed, but no such sentence was passed against him. To substantiate this submission, the learned counsel for the applicant referred to the decision of the Apex Court in the matter of Union of India v. P.D. Yadav ((2002) 1 SCC 405). In our view, the decision of P.D. Yadav (supra) is of no help to the applicant due to the simple reason that it was a case of an officer and the provisions regarding service pension pertaining to officers are slightly different from the provisions incorporated for PBORs. More so, the present matter does not appear to be a case of forfeiture of pension and as such the decision of the Apex Court in P.D. Yadav's case has no relevance.
38. Apart from the aforesaid, it may be mentioned that Section 81 of the Navy Act, 1957 provides for punishment that may be inflicted under the Act. Clause (c) of the said Section 81 deals with the punishment of dismissal with disgrace from the naval service. Clause (e) of the said Section 81 deals with the dismissal from the naval service. So according to Section 81 of the Navy Act, 1957, two types of dismissal from the Naval service can be inflicted, one with disgrace and the other without disgrace. The sentence of dismissal with disgrace involves forfeiture of all pay, head money, bounty, salvage, prize money and allowances, including all annuities, pension, gratuities, medals and decorations in accordance with Section 82(6) of the Navy Act, 1957. The provisions of sub section (6) of Section 82 of the Navy Act are reproduced as follows:
œ S.82(6): The sentence of dismissal with disgrace shall involve in all cases forfeiture of all pay, head money, bounty, salvage, prize money and allowances that have been earned by and of all annuities, pensions, gratuities, medals and decorations that may have been granted to the offender and an incapacity to serve Government again in a defence service, or a civil service, or to hold any post connected with defence or any civil post under the Government:
Provided that the forfeiture of moneys shall not apply except in the case of deserters, to moneys which should have been paid on the last pay day preceding conviction.?
39. Undoubtedly, the Navy Act, 1957 nowhere provides for any such forfeiture in the matter of sentence of dismissal without disgrace. So apparently the consequences provided in Section 82(6) of the Navy Act are not attracted in the matter of sentence of dismissal from the naval service without disgrace. In this connection the learned counsel for the applicant submitted that the respondents could not be said to be justified to withhold the applicant's service pension even after imposition of the sentence of dismissal from service because the sentence of dismissal from the naval service with disgrace has no doubt serious consequences as provided in section 82(6) of the Navy Act, 1957, but such consequences were not attracted in any way in the matter of the sentence of dismissal without disgrace. Therefore, we have to see as to whether a person dismissed from service without disgrace is entitled to service pension or not. To answer this question, the provisions of the Navy (Pension) Regulation, 1964 have to be kept in mind. According to Regulation 69 of the aforesaid Regulations, a Sailor, who is dismissed under the Act, is ineligible for pension or gratuity in respect of the service rendered by him before his dismissal. It is, however, open to the Central Government to grant service pension or gratuity in exceptional circumstances at a rate not exceeding the amount given to a Sailor, who would have been eligible had he been discharged on the date of his dismissal. The aforesaid Regulation 69 being relevant, is reproduced as follows:
œ69. Sailors dismissed, removed or discharged. -
(1) A sailor, who is dismissed under the Act, is ineligible for pension or gratuity in respect of the service rendered by him before his dismissal.
Provided that the Central Government may, where it is satisfied that the exceptional circumstances of the case justify it, grant service pension or gratuity, at a rate not exceeding that for which the sailor would have been eligible had he been discharged on the date of his dismissal.
(1A) A person who is removed from service under Section 15 of the Act, may be considered for the grant of pension or gratuity or both at the rate not exceeding that for which he should have otherwise qualified had he been discharged on the same date.
Provided that the competent authority under regulation 5 may, however, make, if considered necessary, any reduction in the amount of pension or gratuity or both on the merits of each case.
(2) Save as otherwise expressly provided, a sailor who is discharged under the Act and the regulations made there under remains eligible for pension or gratuity under these regulations.
Note. Those dismissed from service due to misconduct, corruption, lack of integrity or moral turpitude are not normally eligible for gratuity but they may be sanctioned gratuity in exceptional cases at the discretion of the President at a rate not exceeding that for which they are normally qualified. œ
40. In view of the aforesaid express provisions contained in Regulation 69 of the Navy (Pension) Regulations, 1964, prohibiting grant of pension to the dismissed Sailor, the applicant cannot be permitted to claim the service pension as a matter of right. It is, however, open to the Government to sanction service pension or gratuity to the applicant in exceptional circumstances according to the proviso to the aforesaid Regulation 69. But no mandamus can be issued to the Government to extend the benefit of the proviso to the applicant. In view of the aforesaid, we do not find any substance even in the applicant's prayer for a direction to the respondents to sanction him service pension.
41. For the reasons stated above, the Original Application (appeal) has no merit and is accordingly dismissed.
42. There will be no order as to costs.
43. Issue free copy of this order to both sides.