TARA DUTT Vs. STATE

JUDGEMENT

(1.) A 54 year old man, stated to be the father of four children including one married daughter was charged with committing digital rape on a hapless 5 year old girl whose mother was related to him. Unfortunately, the criminal law of our country as its stands does not recognise this form of sexual assault as a heinous crime. As a result the petitioner has been convicted for a far lesser offence under Section 354 of the Indian Penal Code (IPC) for use of criminal force to outrage the modesty of a woman. Notwithstanding the 172nd Report of the Law Commission of India submitted over nine years ago to the Government of India urging that Parliament should replace the present definition of rape under Section 376 IPC with a broader definition of „sexual assault,? which is both age and gender neutral, nothing has been done till date. This case, and the growing instances in the recent past of sexual assault of minors, should serve as a wake-up call to make the appropriate amendments to the IPC without further delay.

(2.) THIS revision petition is directed against the judgment dated 24th May 2008 passed by the learned Additional Sessions Judge ( 'ASJ ') dismissing Criminal Appeal No. 43 of 2006 filed by the Petitioner thereby upholding the order dated 19th September 2005 passed by the learned Metropolitan Magistrate ( 'MM ') convicting the Petitioner of the offence under Section 354 IPC. It also challenges the impugned order to the extent that it has modified the order dated 19th September 2005 passed by the learned MM sentencing the petitioner to 2 years ' simple imprisonment and directed him to suffer two years? rigorous imprisonment (RI).

(3.) INITIALLY , the police filed charge sheet under Sections 376/511 IPC against the petitioner. However, by an order dated 17th March 1997, the learned ASJ while hearing the case after its committal remanded the case to the court of the learned MM with a direction that only a case under Section 354 IPC was made out. Thereafter the trial proceeded before the learned MM. The learned MM by an order dated 30th November 2004 accepted an application filed by the prosecution and ordered that charges under Section 377 IPC be framed. The said order of the learned MM was set aside by the learned ASJ by an order dated 7th March 2005 holding that the earlier order dated 17th March 1997 whereby the petitioner was charged only with an offence under Section 354 IPC could not be reviewed.