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2014 DIGILAW 341 (CHH)

Pappu v. State of Chhattisgarh

2014-09-10

P.SAM KOSHY

body2014
JUDGMENT P. Sam Koshy, J. 1. By way of the present criminal appeal the appellant intends to challenge the judgment of conviction and the order of sentence dated 04.03.2014 passed by Additional Sessions Judge, (FTC) Kabirdham, in Sessions Trial No. 17/2014. By the said judgment the Court below has found the appellant to be guilty of having committed the offence punishable u/S. 354, 341 of IPC and sentenced to undergo rigorous imprisonment for one year with fine of Rs. 1000/- for the offence u/S. 354 of IPC and imposed fine of Rs. 500/- for the offence u/S. 341 of IPC with necessary default stipulations. 2. Facts leading to the instant criminal appeal is that the appellant was arrested on 13.01.14 in crime number 6/14 at Police Station, Pandariya District, Kabirdham, wherein the Police has registered the case for the offence punishable u/Ss. 341, 506, 354 and section 8 of Protection of Children from Sexual Offences Act, 2012. 3. As per the prosecution, on 06.01.2014 at around 7.00 a.m. in the morning the appellant is said to have stopped the prosecutrix minor girl aged about 13 years while she was going to the fair price shop on his bicycle. The appellant is said to have en route stopped her bicycle and is said to have caught hold of her hand and pulled her towards him and put his one hand in her mouth and from the other hand the appellant is said to have started squeezing her limbs as well as breast and the prosecutrix immediately raised an alarm and the appellant fled away from the place of incident. She immediately went to her father and reported the incident to his father who in turn is said to have immediately reported to Police Station Pandariya District, Kabirdham and crime No. 6/14 was registered against the appellant for the offence punishable u/Ss. 341, 506, 354 and section 8 of Protection of Children from Sexual Offences Act, 2012. In due course of time, the final report also was submitted and the matter was put to trial before the Sessions Court Kabirdham where the case was registered as Sessions Case No. 17 of 2014. 4. 341, 506, 354 and section 8 of Protection of Children from Sexual Offences Act, 2012. In due course of time, the final report also was submitted and the matter was put to trial before the Sessions Court Kabirdham where the case was registered as Sessions Case No. 17 of 2014. 4. Counsel for the appellant on due consideration of the evidences which have come on record and also on due appreciation of the submission made by the appellant, finally vide its judgment dated 04.03.2014 reached to the conclusion that the appellant is found to be guilty of having committed the offence punishable u/S. 354 and under u/S. 341 of IPC and sentenced to undergo rigorous imprisonment for one year with fine of Rs. 1000/- for the offence u/S. 354 of IPC and imposed fine of Rs. 500/- for the offence u/S. 341 of IPC with necessary default stipulations. 5. It is this judgment dated 04.03.2014 which is under challenge in the instant criminal appeal. 6. Counsel for the appellant drawing the attention of the Court to couple of decisions rendered by the Supreme Court and the other High Courts and submitted that under the criminal justice system, the Court must appreciate the fact that fouler the crime higher the proof is required for conviction. 7. According to the counsel for the appellant since under the amended provision of section 354 which stands amended with effect from 3.2.13, the minimum sentence prescribed under the act is imprisonment of 1 year i.e. since there is minimum sentence prescribed under the act, the evidence and the proof required for the establishment of the offence has to be strictly viewed. He tried to impress upon the court that harsher the punishment under criminal jurisprudence the more stricter the degree of proof is required to convict the accused. According to the counsel for the appellant since the time amendment was brought in section 354 in the year February, 2013, the offence has been given nature of serious offence for the reason that if found guilty there is minimum sentence of 1 year prescribed under the act and therefore, since the offence itself has become more serious in nature stricter degree of proof should be there for convicting the accused. 8. 8. Similarly, counsel for the appellant further tried to submit that the harsher the consequences as in the instant case wherein after amendment in the year 2013, the consequences of an offence proved u/S. 354 of IPC, the minimum period of sentence prescribed is that of 1 year and as such the requirement of the degree of proof for establishing the offence has to be strictly born in mind. While substituting on the said principles, counsel for the appellant relied upon the decisions rendered in AIR 1984 SC 1622 (1), AIR 2002 SC 3620 , (2003) 12 SCC 377 and the judgment of Punjab and Haryana High Court in criminal appeal No. S-1860 SB of 2003 (O & M) dated 09.04.2013. 9. Counsel for the appellant under these circumstances made further submission in the given facts and circumstance of the case and also taking into consideration that the nature in which the statement has been given by the victim it appears to be little bit exaggerated version and that the matter is not as serious as has been submitted by the victim it is only a case where out of infatuation, the appellant is said to have stopped the prosecutrix with an intention of making friendship with her and tried to stop her on the road while she was moving on her bicycle and that after stopping her he wanted her to listen to him and be friendly to him and with that intention he had touched the hand and body parts of the victim. 10. Counsel for the appellant submits that under the given facts, even if, the contention of the victim is to be believed the case on the allegation of the charges levelled against the appellant would not fall within the ambit of offence punishable u/S. 354 of IPC as amended in the year 2013 rather it is a case where the offence against the appellant at best can be brought within the ambit of offence u/S. 354A of IPC which again was inserted by the amendment Act of 2013 w.e.f. 2013. 11. Counsel for the appellant took the Court to the statement of victim PW-1 wherein she has stated that "(Vernacular matter omitted..........Ed.)" 12. Similarly counsel for the appellant also referred to the statement of PW-3 father of the victim girl who also in his deposition in paragraph-2 has stated that:-- "(Vernacular matter omitted..........Ed.)" 13. 11. Counsel for the appellant took the Court to the statement of victim PW-1 wherein she has stated that "(Vernacular matter omitted..........Ed.)" 12. Similarly counsel for the appellant also referred to the statement of PW-3 father of the victim girl who also in his deposition in paragraph-2 has stated that:-- "(Vernacular matter omitted..........Ed.)" 13. Similarly, counsel for the appellant further relied upon the testimony of PW-4 who also in her deposition had said that the appellant is said to have caught hold of her hand and tried to misbehave with the victim girl, relevant portion of PW-4 is also produced as under:-- "(Vernacular matter omitted..........Ed.)" 14. Likewise, PW-6 the mother of the victim girl also in her statement has said that her husband i.e. the father of the victim girl has reached home and informed that the appellant/accused has misbehaved with their daughter i.e. victim girl, the relevant portion of the testimony of PW-6 also is reproduced here as under;- "(Vernacular matter omitted..........Ed.)" 15. Per contra the counsel for the State opposing the appeal took the Court through the statement of prosecution witnesses whereby almost all the prosecution witness have proved the case of the prosecution to the extent that on the date of incident i.e. on 06.01.2014 the appellant is said to have blocked the road while the victim was moving on her bicycle, the appellant is said to have stopped and caught hold of her hand and have tried to make physical contacts with the victim girl by pressing her feet as well as chest. 16. Counsel for the State further also opposes the said testimony and submitted that the act committed on the part of the appellant has all the ingredients requiring for attracting section 354 of IPC as the appellant is said to have forcefully' stopped the victim girl while she was moving on her bicycle and after stopping her the appellant is said to have forcefully tried to make physical contact with an intention to outrage her modesty or at least known it to be illegal that he will thereby outrage her modesty. 17. According to the State counsel the finding of the trial Court in convicting the appellant for the offence punishable u/S. 354 is proper, legal and justified and therefore, does not warrant any interference by this Court. 18. 17. According to the State counsel the finding of the trial Court in convicting the appellant for the offence punishable u/S. 354 is proper, legal and justified and therefore, does not warrant any interference by this Court. 18. Considering the rival contentions put forth by the counsel of either side and taking into account the testimony of the prosecution witness who have not been able to establish the fact that the appellant in fact had used criminal force for the commission of offence or have assaulted the victim girl while committing the said offence. On the contrary, the evidence which have come on record clearly establish the fact that the moment the victim raised an alarm the appellant is said to have fled away from the place of incident. Further, if we also peruse the said act committed by the appellant from the testimony of the prosecution witness it would clearly reflect that while she was going on her bicycle on the road, the appellant has stopped her and had made physical contacts by catching hold of her hand and also had tried to touch the other parts of the body and the prosecution witness have not made single statement against the appellant of having used criminal force or have assaulted the victim while the appellant committed the said offence. 19. After hearing the argument of both the counsels and from the plain reading of section 354 as amended by the Act of 2013 it means the said section can be made applicable only in those cases where the accused/appellant is said to have used criminal force or assault on a woman with an intention to outrage or knowing it to be illegal outrage her modesty. For ready reference section 354 as amended by the amendment Act of 2013 reads as under:-- "Assault or use of criminal force to woman with intent to outrage her modesty- whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty." 20. Similarly if we go through the provision of newly inserted section 354A of IPC wherein also sub-section l(i) of section 354A clearly lays down that any accused person committing act of -- "physical contact and advances involvement in welcoming explicit sexual overtures, shall be guilty of the offence of sexual harassment". 21. Similarly if we go through the provision of newly inserted section 354A of IPC wherein also sub-section l(i) of section 354A clearly lays down that any accused person committing act of -- "physical contact and advances involvement in welcoming explicit sexual overtures, shall be guilty of the offence of sexual harassment". 21. A plain reading of the commentary of the newly incorporated provisions it will reveal that the makers of the law lay emphasize on the fact that for attracting the provision of section 354 use of either assault or criminal force is a necessary element for the offence prescribed in the section whereas for attracting section 354A the said use of either assault or criminal force is not a necessary element. If the charges levelled against the appellant or the allegations narrated by the victim is taken into consideration it is explicitly clear that the element of use of assault or criminal force is not present but a simple act on the part of the appellant/accused by making such physical contact and advances which are unwelcoming and explicit sexual overtures and then the man will be found guilty of offence of only sexual harassment. 22. Under these circumstances this Court is of the view, that the act which is said to have been committed by the appellant would not fall within the ambit of section 354 of IPC and therefore, the conviction of the appellant for the said commission of offence is not proper and the same deserves to be and is accordingly set aside. However, the act which is said to have been committed by the appellant and which also stands proved conclusively falls under the offence of section 354A of IPC whereby the act on the part of the appellant can easily be said to be an act which may come within the ambit of physical contact and advances involving unwelcoming and explicit sexual overtures as per section 354A l(i) of IPC. 23. Thus, the impugned judgment passed by the Court below and the conviction of the appellant u/S. 354 is set aside and he is acquitted from the said charge, but the appellant is found guilty of having committed the offence punishable u/S. 354A of IPC. 24. 23. Thus, the impugned judgment passed by the Court below and the conviction of the appellant u/S. 354 is set aside and he is acquitted from the said charge, but the appellant is found guilty of having committed the offence punishable u/S. 354A of IPC. 24. Accordingly, the appellant is convicted for the offence under section 354A of IPC and as regards the sentence to be imposed, taking into consideration the act which is said to have been committed by the appellant and also keeping in view the fact that the appellant is in jail since 04.03.2014, i.e. he has already remained in jail for about 6 months, his sentence can be the period already spent in jail. 25. Accordingly, the Criminal Appeal is allowed in part. The conviction of the appellant for the offence punishable under Section 354 of IPC is set aside. However, the appellant is found guilty of committing the offence under Section 354-A of IPC and for the said conviction under Section 354-Aof IPC, the sentence is imposed upon the appellant for the period he has already spent in jail. The fine amount with default stipulation as imposed upon the appellant by the Court below shall remain intact. The appellant is reported to be in jail. He is directed to be set free forthwith if not required in any other case. Appeal Partly Allowed