Uttarakhand High Court
Kunal Giri vs State Of Uttarakhand on 8 May, 2024
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No.531 of 2019
Kunal Giri .....Revisionist
Versus
State of Uttarakhand .....Respondent
Present:-
Mr. Gaurav Singh, Advocate for the revisionist.
Mr. M.A. Khan, AGA for the State.
Ms. Reema Rana, Advocate for the informant.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral) The challenge in this revision is made to the following:-
1. The judgment and order dated 29.11.2018, passed in Criminal Case No.605 of 2018, State vs. Kunali Giri, by the court of Additional Chief Judicial Magistrate/First Additional Civil Judge (Sr. Div.), Haridwar ("the case"). By it, the revisionist has been convicted under Sections 354, 354A, 504, 506 IPC and sentenced as follows:-
(i) Under Section 354 IPC-to undergo simple imprisonment for a period of one year with a fine of Rs.2,000/-. In default of payment of fine, to undergo simple 2 imprisonment for a further period of two months.
(ii) Under Section 354A IPC- to undergo simple imprisonment for a period of one year with a fine of Rs.2,000/-. In default of payment of fine, to undergo additional simple imprisonment for a further period of two months.
(iii) Under Section 504 IPC- to undergo simple imprisonment for a period of one year with a fine of Rs.1,000/-. In default of payment of fine, to undergo additional simple imprisonment for a further period of two months.
(iv) Under Section 506 IPC- to undergo simple imprisonment for a period of one year with a fine of Rs.1,000/-. In default of payment of fine, to undergo additional simple imprisonment for a further period of two months and;
2. The judgment and order dated 30.08.2019 passed in Criminal Appeal No. 251 of 2018, Kunal Giri vs. State of Uttarakhand, by the court of First Additional District and Sessions 3 Judge, Haridwar, District Haridwar ("the appeal"). By it, the judgment and order passed in the case was partly allowed and the revisionist has been acquitted of the charge under Sections 354, 504, 506 IPC, but he has been convicted under Section 354A IPC and sentenced to undergo simple imprisonment for a period of six months with a fine remaining unaltered.
2. Heard learned counsel for the parties and perused the record.
3. The factual narrations, briefly stated, are as follows. On 01.11.2014, PW1 lodged an FIR at Police Station Kotwali Nagar, Haridwar. According to it, for seeking peace, the PW1, the victim reached at Haridwar on 21.10.2014. She stayed in a hotel. At about 04:30, on the same evening, the revisionist, who is the owner of the hotel introduced himself to PW1, the victim and told that he is a widower. He sought sexual favour from PW1, the victim assuring to make the victim his business partner or life partner. PW1, the victim, declined for it and also warned the revisionist to mend his ways. But, the FIR records that thereafter, on various occasions, the revisionist would visit the room of the victim and would molest her and sought sexual favour from her. On 30.10.2014, the revisionist abused and threatened PW1 the victim to life. Thereafter, the victim left 4 the hotel and stayed in hotel Janvi. The FIR is quite in detail. It is this FIR, in which after investigation, charge-sheet was submitted against the revisionist under 354, 354A, 504, 506 IPC, which is the basis of the case. On 16.11.2016, charges under Sections 354, 354A, 504, 506 IPC were framed against the revisionist to which he declined and claimed trial.
4. In order to prove its case, the prosecution examined seven witnesses, namely, PW1 the victim, PW2 Chirag Kukhreja, PW3 Rohit Shukla, PW4 Meem Chandra Sharma, PW5 Kiran Rawat, PW6 Sub Inspector, Mahanand, the first Investigating Officer, PW7 SI Dilbar Singh Bhandari, the Investigating Officer, who submitted the charge-sheet.
5. The revisionist was examined under Section 313 of the Code of Criminal Procedure, 1973. According to him, there was a dispute with regard to the rent of the room. Therefore, he was falsely implicated.
6. After hearing the parties, by the impugned judgment and order dated 29.11.2018, the revisionist has been convicted and sentenced, as mentioned hereinbefore, which was challenged in the appeal, wherein, the conviction was upheld under Section 354A IPC and sentence was reduced, as stated hereinbefore.
7. Learned counsel for the revisionist would submit that even if the statement of PW1, the victim, is accepted in its 5 entirety, no offence under Section 354A IPC is made out. He would refer to the statement of PW1, the victim. He would also argue that the conviction has been recorded by merely reading the averments, made in the FIR, which were never proved by PW1, the victim. He would submit that the FIR, per se, is not substantive evidence unless it is proved in accordance with law.
8. Learned counsel for the State would submit that it is no evidence case.
9. Learned counsel for the victim would also submit that, in fact, there is no evidence in the case.
10. It is a revision. The scope is much restricted to the extent of examining the correctness, legality and propriety of the impugned judgment and order. Appreciation of evidence is beyond the scope of the revision, unless irrelevant material is considered or relevant material is not considered, or a finding is perverse i.e. against the weight of evidence.
11. PW1 is the victim. In her examination, she has stated that on 21.10.2014, she visited Haridwar and stayed in a hotel, where at 04:30 PM, the applicant introduced himself as a widower and proposed to make this witness his business partner and life partner. He also told that they would continue a conversation and thereafter, he would marry the victim. According to this witness, at that moment, the revisionist has 6 also told it to this witness that he would talk in the night. To it, this witness has responded that why in the night? Why they could not talk at that moment only? According to this witness, in the midnight at 12:00, the applicant knocked at the door of the victim's room. He came inside the room and told that his family is staying nearby therefore if PW1 so likes, she could stay with his sister. This witness has stated as to what has happened thereafter.
12. PW2 Chirag PW3 Rohit Shukla has not stated anything substantive in support of the prosecution case. PW4 is a hotel Manager. He has not supported the prosecution case. According to him, PW1 the victim abused them in the hotel. PW5 Kiran Rawat has also not supported the prosecution case. She also turned hostile. PW6 SI Mahanand is the first Investigating Officer. In the cross examination, he has categorically stated that no witness has supported the case of molestation or sexual harassment. PW7 Sub Inspector, Vinod Bhandari has finally submitted charge-sheet. He has proved some police documents also.
13. The Court in appeal has convicted the revisionist under Section 354A IPC, which reads as follows:-
"354A. Sexual harassment and punishment for sexual harassment-(1) A man committing any of the following acts:-
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or 7
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."
14. In the instant case, although, there are averments with regard to the sexual harassment in the FIR, but PW1, the victim herself has not corroborated the version of the FIR, in the statement given in the court. Two incidents have been alleged against the revisionist (1) On 21.12.2014 at about 4:30 when the revisionist proposed to marry her also proposing to make her his business partner and; (2) knocking at the door at 12:00. But, the entry was not forceful. The revisionist did not forcibly got the door open. The door was definitely opened by PW1 the victim and there in the room as per PW1, the victim nothing had happened. But, the revisionist proposed the PW1, the victim that she could sleep with the sister of the revisionist. Both these incidents, does not attract the provisions of Section 354A IPC. It does not attract the provisions of sexual harassment. There is no evidence to support the conviction 8 under Section 354A IPC. Therefore, this Court is of the view that the conviction of the revisionist under Section 354 IPC is not based on evidence. It is without evidence.
15. Therefore, the conviction of the revisionist under Section 354A IPC deserves to be set aside and revision allowed.
16. The revision is allowed accordingly.
17. Impugned judgement and order dated 29.11.2018 is set aside. The impugned judgment and order dated 30.08.2019 is also set aside to the extent it convicts the revisionist under Section 354A IPC.
18. The revisionist is also acquitted of the charge under Section 354A IPC.
19. Let the copy of this judgement alongwith record be forwarded to the court below for compliance.
(Ravindra Maithani, J.) 08.05.2024 Ravi