Kedosale Tsukru vs State Of Nagaland

Heard the learned counsels.

The instant appeal is filed under Section 415(2) of the BNSS, 2023 against the Judgment & Order dated 31.11.2025, passed by the learned District & Sessions Judge, Kohima, Nagaland, in G.R. No. 112/2018, arising out of Kohima Women Police Station Case No. 0017/2018 under Section 376(1) of the IPC, convicting the accused person for the offence punishable under Section 354 and sentencing him to undergo Rigorous Imprisonment for a period of one year with a fine of Rs. 10,000/- (rupees ten thousand) failing which he shall undergo further imprisonment of 3 months and out of this amount a sum of Rs. 6000/- (rupees six thousand) is to be paid as compensation to the victim under Section 357 CrPC.

The brief facts leading to the filing of the instant appeal may be narrated as follows:-

On 03.08.2018, one Sedeneinu Sachu, President of Dapfutsumiapfu Mechu Krotho, submitted a criminal complaint against the instant appellant to the Officer-in-Charge of North Police Station, Kohima, Nagaland, stating inter alia that the aforesaid appellant had committed rape against the victim on the night of 02.08.2018 due to which, the youth, women, and villagers apprehended him on 03.08.2018, and in the presence of an assembled crowd, the culprit gave a verbal confession of having committed the crime. The informant requested to register appropriate case against the perpetrator, to investigate the case, and to file a charge sheet under the appropriate Sections of the IPC. Upon receipt of the said information, Kohima Women Police Station Case No. 0017/2018 under Section 376(1) IPC was registered against the appellant.

Upon completion of investigation, a prima facie case was found against the appellant/accused for the offence punishable under Section 376(1) IPC and accordingly, charge sheet was submitted against the appellant under Section 173 CrPC. Charge was framed against the accused for the offence punishable under Section 376(1) IPC. The appellant/accused pleaded not guilty to the charge and claimed trial. During the course of trial, the prosecution examined 10 witnesses, the accused was examined under Section 313 CrPC. The defence did not lead any evidence despite opportunity being granted. Thereafter, the learned counsels were heard. The learned Trial Court, vide its Judgment & Order dated 31.11.2025, acquitted the accused of the offence under Section 376(1) IPC, but convicted him for the offence under Section 354 IPC, sentencing him to undergo Rigorous Imprisonment for one year with a fine of Rs. 10,000/- (rupees ten thousand) and in default to further undergo imprisonment for 3 months.

Aggrieved thereby, the appellant has preferred the instant appeal.

Mr. L. Iralu, learned counsel for the appellant that the prosecution has not been able to prove the case beyond reasonable doubt, and that there are contradictions and omissions in the evidence. In this regard, the learned counsel submitted that the prosecutrix alleged violent sexual assault, broom beating, forcible laying on the floor, cutting off pyjamas strings, physical resistance, cooped with shouting and crying but none of these statements were supported by the testimony of PW-4 who was in the house and also by medical evidence. On the contrary, PW-7 only stated that she heard the quarrel and she also heard the victim asking the appellant to leave the house. The learned counsel therefore submitted that the contradiction in these testimonies rendered the evidence of the victim unreliable. It is also submitted that the nature of injuries sustained by the victim which is reflected in the medical examination report fails to support the allegation of violent force and sexual assault. The learned counsel also submitted that the essential ingredient of Section 354 IPC which is intention or knowledge to outrage modesty have not been proved beyond reasonable doubt. The learned counsel also submitted that the learned trail court erred in relying on selective portions of the prosecutrix’s testimony while ignoring material contradictions and omissions. The learned counsel therefore submitted that the benefit of doubt arising from the inconsistencies in the prosecution version ought to be given to the appellant. The learned counsel therefore submitted that the evidence on record is not sufficient to convict the accused for the offence under Section 354 IPC, and even if the conviction is sustained, he is entitled to be extended the benefit of probation under the Probation of Offenders Act, 1958, since he is a first-time offender.

In support of his submissions, the learned counsel has placed reliance on the following decisions:

Per contra, Mr. E. Thiba Phom, learned Public Prosecutor submitted that from the evidence of the victim as well as the deposition of PW-4, who was present in the house, the prosecution has clearly established that an unknown person entered their house in the middle of the night and shouted bad words. It is not denied by the accused that he entered the house of the victim in the middle of the night. There is also evidence to the effect that the victim was beaten with a broom.

To corroborate the statement of the victim regarding the broom beating and assault, medical evidence was relied upon, wherein the doctor upon examination found injuries on the person of the victim, and this finding was not shaken or falsified during cross-examination. Therefore, the use of criminal force is clearly proved by the prosecution.

The learned Public Prosecutor submitted that the circumstances under which force was used upon a woman inside her house in the middle of the night clearly constitute the offence of outraging the modesty of a woman, with the necessary element of force being fully present and corroborated by medical evidence.

The accused was thereafter examined under Section 313 CrPC, wherein he denied the evidence of rape against him. He admitted that he went to the house of the victim and asked for rum, cigarette, and omelette which the victim gave him. He also stated that the child of the victim came out crying in the kitchen when he was drinking the liquor and so after that, he left the kitchen and went away, as he had to go to Dimapur on the next day. He also stated that he and the victim knew each other as they are from Dihoma village. He further stated that he was blindfolded and beaten by a crowd and it was only when the police came that he was rescued. He stated that he does not know anything about the injuries sustained by the victim. He admitted that he was examined by a Medical Officer. The accused declined to lead evidence.

In the case at hand, though charge sheet was filed against the appellant/accused for an offence punishable under Section 376(1) of the IPC, the conviction was altered to Section 354 of the IPC, and the appellant/accused was sentenced to undergo Rigorous Imprisonment (RI) for a period of one year with a fine of Rs. 10,000/-, out of which a sum of Rs. 6000/- was ordered to be paid to the victim as compensation for mental and physical trauma. It was further ordered that the detention already undergone by the appellant/accused during investigation and trial shall be set off against the sentence. The prosecution has not challenged the sentence and conviction under Section 354 of the IPC, despite the charge sheet having been filed for an offence under Section 376(1) of the IPC. Therefore, the consideration in the instant appeal is limited to the conviction and sentence under Section 354 of the IPC.

The provision of Section 354 IPC is re-produced below:

Therefore, in order to constitute an offence punishable under Section 354 IPC, the essential ingredients are:- (a) the victim must be a women (b) the accused must have used criminal force against her or assaulted her (c) such assault or criminal force must be committed with the intention or knowledge that it was likely to outrage her modesty.

In the case of Tarkeshwar Sahu(supra), the Hon'ble Apex Court observed that the essence of a woman’s modesty is her sex and that to constitute an offence under Section 354 of the IPC, the culpable intention of the accused is the crux of the matter. It was also observed that modesty is an attribute associated with female human beings as a class. It was further observed that the ultimate test for ascertaining whether the modesty of a woman has been outraged is whether the action of the offender may be perceived as one "capable of shocking the sense of decency of a woman." The Hon'ble Supreme Court, in Raju Pandurang Mahale v. State of Maharashtra reported in (2004) 4 SCC 371, defined modesty as "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct" in a man or woman; reserve or sense of shame proceeding from an instinctive aversion to impure or coarse suggestions.”

The main contention of the appellant is that the testimony of the prosecutrix regarding the violent sexual assault, broom beating, being forcibly laid on the floor, the cutting of her pyjama string, physical resistance, shouting, and crying is not supported by other prosecution evidence, more particularly that of PW-4/Promila (the sister-in-law of the prosecutrix) who was present in the house at the time of the alleged incident and the medical evidence. Upon appreciating the evidence adduced during trial, it is seen from the testimony of PW-3 that when the accused entered her house late at night on 02.08.2018, he asked for whisky. Since she did not have any, she gave him rum. Although the accused told her he would take the liquor away with him, he instead consumed it inside her house. When she left for her bedroom, the accused called her out again and asked her to prepare eggs, which she did. At that time, the accused closed the door, caught hold of her arm, started beating her with a broom, laid her on the ground with a dao, cut the string of her pyjama, and subjected her to rape. She also stated that while drinking, the accused shouted at her for marrying a Bihari man. Her statements regarding the use of criminal force were not falsified during cross-examination, in fact, they were reaffirmed when questioned through suggestions.

PW-4/Promila is the sister-in-law of the victim deposed that on the night of 02.08.2018, an unknown person came to their house, flashed torchlight from the door, and asked who she was. She noted in her deposition that she subsequently identified the unknown person as the "accused," stating that he went back to the kitchen, consumed liquor, asked the victim to fry eggs, and shouted foul language at her. She also heard the victim requesting the accused to leave the house, after which the unknown person departed. She stated that prior to this, she had called her uncle and mother to inform them that someone had entered the victim's house and was creating trouble.

During her cross-examination, she admitted that she did not hear any screaming, shouting, or crying from the kitchen, except for hearing the victim request the accused to leave her alone. She further stated that apart from the verbal arguments between the victim and the accused, she had nothing to comment on regarding the offence of rape. However, she added that although the victim did not explicitly tell her she had been raped, she saw the victim shivering and crying. During her re-examination, she reiterated that apart from a verbal argument, she did not hear or see an incident of rape being committed.

Section 60 of the Indian Evidence Act defines that oral evidence must be direct in all cases. In the present case, PW-4, who was inside the house at the time of the incident, categorically deposed that the accused entered their house on the night of 02.08.2018, consumed liquor in the kitchen, asked the victim to try eggs, shouted foul language, and that she heard the victim ask him to leave, saw the victim shivering and crying, and called her relatives to report the disturbance.

Turning to the medical evidence, Dr. Azo Louis (PW-10), who examined the victim at 01:20 AM on 03.08.2018, proved the contents of the medical examination report and exhibited the same as Exhibit P-6 without objection. As per the report, the victim sustained:

The witness was not cross-examined regarding these injuries. As per PW-10, the incident allegedly took place at 23:50 hours on 02.08.2018.

Upon appreciation of the evidence of PW-4 and the medical evidence presented by PW-10, the victim's statement that the accused used criminal force against her is clearly corroborated. It was never the defence case at any stage that these injuries were pre-existing. Furthermore, the appellant/accused admits to having entered the victim's house on the night of 02.08.2018. Therefore, the evidence of PW-4 and PW-10 strongly support the victim's account regarding the use of criminal force.

The argument of the learned counsel for the appellant that the weapon of assault was not proven does not negate the prosecution's evidence particularly that of the victim and PW-4, which is corroborated by the medical findings.

From the evidence of the prosecutrix, it is established that she and the accused were acquainted with each other as they had lived in the same village since childhood, and her father regarded the accused's father as his own (making the accused her father's godfather, or vice versa). In his examination under Section 313 CrPC/Section 351 BNSS, 2023, the accused similarly stated that he knew the victim and her family. Accordingly, there appears to be no motive for the victim to falsely implicate the accused. Furthermore, given their familiarity, it was natural for the victim to open her door when he knocked late at night.

From the evidence, it is also seen that the FIR was lodged promptly on 03.08.2018 regarding the incident that occurred during the intervening night of 02.08.2018 and 03.08.2018. The FIR was proved by PW-2 (Sedeneinuo Sachu) and exhibited as Exhibit P-1, this promptness adds credence to the prosecution's case. Relying on Mohan Singh(supra), the appellant's counsel argued that a statement under Section 313 CrPC is not a substantive piece of evidence and cannot substitute prosecution evidence. Here, the accused admitted that he visited the victim’s house, asked for rum, cigarettes, and an omelette, but denied committing rape or causing injury. Thus, his statement cannot be construed as an admission of guilt so as to form the sole basis of conviction. Rather, the victim's testimony has remained consistent and is corroborated by other evidence. The conduct of the accused, visiting a woman's house in the middle of the night, using force, and inflicting injuries, would undoubtedly outrage the modesty of any woman as understood under Section 354 IPC.

In view of the above observations and the evidence on record, this Court finds no reasonable grounds to interfere with the trial court's finding convicting the accused under Section 354 IPC.

The learned counsel for the appellant submitted that the trial court ought to have extended the benefit of Section 4 of the Probation of Offenders Act, 1958 to the appellant. The offence under Section 354 IPC is punishable with imprisonment of either description for a term not less than one year, extendable up to five years, and a fine. It is submitted that the appellant has no criminal antecedents, complied with bail conditions throughout the trial, has undergone personal reformation, and is actively involved in church activities (serving as a deacon at Shalom Revival Church and holding treasurer/convener positions at Christian Revival Mission Church).

A perusal of the record indicates that the appellant is a native of Dihoma village, Kohima, aged about 40 years as per the charge sheet, with no prior criminal antecedents or pending criminal cases.

Section 4 of the Probation of Offenders Act, 1958 is intended to promote the reformation and rehabilitation of offenders and prevent individuals capable of reform from being exposed to the deleterious effects of incarceration. As held by the Hon’ble Apex Court regarding the conjoint reading of Section 4 of the Probation Act and Section 361 of the CrPC, while probation is not a matter of absolute right, the court has a mandatory duty to consider extending probation unless its applicability is expressly excluded. If the court decides against probation, it must record its special reasons.

The Hon’ble Apex Court in the case of Chellammal & Anr v. State represented by the Inspector of Police reported in (2025) INSC 540 has held as below:

In the present case, the record shows that the trial court failed to consider the applicability of Section 4 of the Probation of Offenders Act before sentencing the appellant.

The appellant's submission regarding his post-incident reformation has not been rebutted by the prosecution. The emphasis on reforming and rehabilitating offenders into self-reliant members of society without subjecting them to jail life is the core objective of the Probation of Offenders Act and Section 360 of the CrPC.

Given the appellant's clean antecedents, lack of prior criminal record, and demonstrated rehabilitation, this Court is of the view that extending the benefit of Section 4(1) of the Probation of Offenders Act would best serve the object of the statute in the specific facts and circumstances of this case.

It is seen from the record that this Court vide Order dated 28.11.2025 in I.A.(Crl.) No. 42/2025 has suspended the Judgment & Sentence dated 03.11.2025 in G.R. Case No. 112/2013 till disposal of the connected appeal. The appellant was allowed to go on bail on the same terms and conditions as imposed by the learned Trial Court.

With the above observation, the appeal stands partly allowed.

Return the case record of the learned trial court.