Karnataka High Court
The State By vs Sachin @ Yashu on 4 September, 2023
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NC: 2023:KHC:31753
CRL.A No. 1269 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 1269 OF 2016 (A)
BETWEEN:
THE STATE BY
RAMANAGARA TOWN POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
Digitally HIGH COURT BUILDING
signed by N
UMA BENGALURU - 571 511.
Location:
HIGH
COURT OF
KARNATAKA ...APPELLANT
(BY SRI. RAHUL RAI K, HCGP)
AND:
SACHIN @ YASHU
S/O SHIVANNACHAR
AGED ABOUT 22 YEARS
R/AT NO.1964, 2ND CROSS
MAGADI MAIN ROAD, KEMPEGOWDA CIRCLE
RAMANAGARA TOWN - 571 511.
...RESPONDENT
(BY SRI. R V SREERAMA REDDY, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(1) AND (3) CR.P.C
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 29.02.2016
PASSED BY THE COURT OF THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, RAMANAGARA IN SPECIAL CASE
NO.79/2014 FOR THE OFFENCE PUNISHABLE UNDER SECTION
341, 323, 354, 504, 509 OF IPC AND ETC.,
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:31753
CRL.A No. 1269 of 2016
JUDGMENT
1. This Criminal Appeal is filed by the appellant, being aggrieved by the judgment and order of acquittal dated 29.02.2016 in Spl.Case No.79/2014 on the file of I Additional District and Sessions Judge / Special Judge, Ramanagara, wherein the Trial Court acquitted the accused for the offences punishable Sections 341, 323, 354, 504, 509 of the Indian Penal Code (for short 'IPC') and under Section 12 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act').
2. The rank of the parties henceforth will be referred as per their rankings in the Trial Court, for convenience.
Brief facts of the case:
3. On 03.01.2014 at about 8.45 a.m., when PWs.1 to 3 were proceeding to college, the respondent/accused came on a two-wheeler bearing its registration No.KA-42-Q-6692 by whistling near the PWs.1 to 3 as if they will be dashed. PW.2 questioned about the rashness of his driving. Then, the respondent assaulted her, being aggrieved by the act of the respondent, PW.1 questioned about the assault, she had also -3- NC: 2023:KHC:31753 CRL.A No. 1269 of 2016 been assaulted. The matter was pacified by the intervention of the people who gathered around them. PWs.1 to 3 had been to their college and informed about the incident to the Principal. The Principal asked the parents of PWs.1 to 3 to come to the college and informed them to approach the jurisdictional police. PWs.1 to 3 along with their parents went to the jurisdictional police and lodged a complaint against the respondent. The respondent police have registered a case in Crime No.2/2014 for the above offences. After conducting investigation, charge sheet was submitted by the Investigating Officer.
4. To prove the case of the prosecution, the prosecution examined, in all, 8 witnesses namely PWs.1 to 8 and got marked 9 documents as Exhibits P1 to P9. The Trial Court after appreciating the oral and documentary evidence on record opined that, the prosecution failed to prove the case beyond all reasonable doubt that the accused/respondent committed the offences stated supra and acquitted the accused/respondent. Being aggrieved by the same, the State has preferred this appeal.
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NC: 2023:KHC:31753 CRL.A No. 1269 of 2016
5. Heard Sri.Rahul Rai.K, learned HCGP for the appellant-State and Sri.R.V.Sreerama Reddy, learned counsel for the respondent.
6. It is the submission of the learned High Court Government Pleader for the appellant-State that, the findings recorded for acquittal by the Trial Court are erroneous and illegal. Hence, the judgment and order of acquittal requires to be set aside.
7. It is further submitted that, PWs.1 to 3 are the eyewitnesses to the incident and they were minors as on the date of alleged incident. Their evidence is consistent with the assault and outrage their modesty. In spite of their consistent evidence, the Trial Court recorded the acquittal which is perverse and illegal and the said judgment of acquittal has to be set aside.
8. It is further submitted that, the Investigating Officer who is examined as PW.8 has conducted proper investigation and submitted the charge sheet. Merely because some of the witnesses have turned hostile that cannot take away the case of the prosecution. This aspect should have -5- NC: 2023:KHC:31753 CRL.A No. 1269 of 2016 been considered by the Trial Court while appreciating the evidence. Having failed to consider the evidence of the witnesses properly resulted in passing the impugned judgment which is required to be set aside. Making such submissions, the learned HCGP prays to allow the appeal.
9. Per contra, Sri.R.V.Sreerama Reddy, learned counsel for the respondent justified the judgment and order of acquittal passed by the Trial Court and submitted that, PWs.1 to 3 have not submitted their medical certificates in respect of the injury which they have sustained in the said incident. In the absence of medical certificates regarding the assault, it cannot be said that they had been assaulted. Therefore, the provision under Section 323 of IPC would not be proved.
10. Even the entire evidence of PWs.1 to 3 do not disclose the ingredients of Section 354 of IPC and Section 12 of the POCSO Act. The prosecution has failed to establish that, the respondent committed offences as mentioned in the charge sheet. Therefore, the Trial Court rightly appreciated both oral and documentary evidence on record and acquitted the respondent.
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NC: 2023:KHC:31753 CRL.A No. 1269 of 2016
11. It is further submitted that, the appellant-State herein has not made out any grounds to interfere with the well reasoned order passed by the Trial Court and the appeal deserves to be dismissed. Having submitted thus, the learned counsel for the respondent prays to dismiss the appeal.
12. Having heard the learned counsel for parties and also perused the judgment of the Trial Court and also documents available on record, the points which arise for my consideration are:
(i) Whether the judgment and order of acquittal passed by the Trial Court for the offences punishable under Sections 341, 323, 354, 504, 509 of IPC and Section 12 of POCSO Act are sustainable?
(ii) Whether the appellant has made out grounds to interfere with the findings recorded for acquittal by the Trial Court?
13. This Court being a First Appellate Court having jurisdiction to appreciate both evidence and law, now it is relevant to refer the evidence of all the witnesses and also to -7- NC: 2023:KHC:31753 CRL.A No. 1269 of 2016 go through the records. It is also borne in mind that the Appellate Court in case of appeal against acquittal has to interfere only when it is noticed that the appreciation of evidence by the Trial Court appear to be perverse.
14. Now, it is relevant to advert to the case of the prosecution along with the evidence of material witnesses. PWs.1 to 3 are the eyewitnesses to the incident and also the victims. PWs.4, 5 and 6 are the eyewitnesses to the incident, but they have turned hostile. PW.7 is the School Authority, turned hostile. PW.8-Praveen Babu is the Investigating Officer, who conducted the investigation and submitted the charge sheet.
15. Now it is relevant to refer to the provision under Section 354 of IPC and Section 12 of the POCSO Act, which reads thus:
"354. Assault or 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, [shall be punished with imprisonment of either description for a term which shall not be less than one year but -8- NC: 2023:KHC:31753 CRL.A No. 1269 of 2016 which may extend to five years, and shall also be liable to fine.]"
12. Punishment for sexual harassment. - Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine." On perusal of the above said provisions, it makes it clear that, to attract the said provisions, the accused must have used criminal force or assault to any woman with intention to outrage her modesty. No doubt, the word 'woman' as per Section 10 of IPC, even includes the children. Similarly, Section 12 of the POCSO Act refers to punishment for sexual harassment. On conjoint reading of the above provisions, the prosecution has not proved the case beyond all reasonable doubt regarding the outraging modesty and sexual harassment.
16. In addition to the above justification, it is necessary to refer to the evidence of the eyewitnesses, PW.1- Shoba, PWs.2 and 3, Ramya and Radha were proceeding near the college, the accused came in a two-wheeler in a rash and negligent manner as if he would dash against the witnesses. -9-
NC: 2023:KHC:31753 CRL.A No. 1269 of 2016 When it was questioned by P.W.2, the respondent assaulted her. When P.W.1 asked about the assault, she was assaulted. By that time, at the intervention of the general public, the quarrel was pacified and these witnesses went back to their college and intimated the Authority, in turn, the Authority summoned the parents. Later, these witnesses have gone to the police station and lodged a complaint. The said complaint is marked as Ex.P1. On reading the evidence of all these witnesses, it appears that the prosecution has failed to prove the ingredients of Section 354 of IPC and Section 12 of POCSO Act. Mere assaulting the woman in public cannot be construed as outraging her modesty. Modesty is not only limited to physical modesty, but also includes moral and psychological modesty. The moral modesty of a woman is said to be the sense of shame or bashfulness that a woman feels when faced with any act that is intended to outrage her modesty.
17. Now, it is relevant to refer to the dictum of the Hon'ble Supreme Court in the case of Tarakeshwar Sahu V. State of Bihar1 paragraph No. 40 to 47 reads thus; 1 (2006)8 SCC 560
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NC: 2023:KHC:31753 CRL.A No. 1269 of 2016 "40. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex.
41. "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.
42. The ultimate test for ascertaining whether the modesty of a woman has been outraged, assaulted or insulted is that the action of the offender should be such that it may be perceived as one which is capable of shocking the sense of decency of a woman. A person slapping on the posterior of a woman in full public glare would amount to outraging 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.
43. The word "modesty" is not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. It is a
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NC: 2023:KHC:31753 CRL.A No. 1269 of 2016 virtue which attaches to a female on account of her sex.
44. We deem it appropriate to reproduce the cases of various courts indicating circumstances in which the court convicted the accused under Section 354 IPC.
45. In State of Kerala v. Hamsa it was stated as under: (Crimes p. 164, para 5) "What the legislature had in mind when it used the word modesty in Sections 354 and 509 of the Penal Code was protection of an attribute which is peculiar to woman as a virtue which attaches to a female on account of her sex. Modesty is the attribute of female sex and she possesses it irrespective of her age. The two offences were created not only in the interest of the woman concerned, but in the interest of public morality as well. The question of infringing the modesty of a woman would of course depend upon the customs and habits of the people. Acts which are outrageous to morality would be outrageous to modesty of women. No particular yardstick of universal application can be made for measuring the amplitude of modesty of woman, as it may vary from country to country or society to society."
46. A well known author Kenny in his book Outlines of Criminal Law has dealt with the
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NC: 2023:KHC:31753 CRL.A No. 1269 of 2016 aspect of indecent assault upon a female. The relevant passage reads as under:
"In England by the Sexual Offences Act, 1956, an indecent assault upon a female (of any age) is made a misdemeanour and on a charge for indecent assault upon a child or young person under the age of sixteen it is no defence that she (or he) consented to the act of indecency."
47. In State of Punjab v. Major Singh a three-Judge Bench of this Court considered the question--whether modesty of a female child of 7½ months can also be outraged. The majority view was in the affirmative. Bachawat, J. on behalf of majority, opined as under:
"The offence punishable under Section 354 is an assault on or use of criminal force to a woman with the intention of outraging her modesty or with the knowledge of the likelihood of doing so. The Code does not define 'modesty'. What then is a woman's modesty?
... the essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence
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NC: 2023:KHC:31753 CRL.A No. 1269 of 2016 punishable under Section 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as, for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an idiot, she may be under the spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the act; nevertheless, the offender is punishable under the section.
A female of tender age stands on a somewhat different footing. Her body is immature, and her sexual powers are dormant. In this case, the victim is a baby, seven-and- half months old. She has not yet developed a sense of shame and has no awareness of sex. Nevertheless from her very birth she possesses the modesty which is the attribute of her sex."
18. On careful reading of the dictum of the Hon'ble Supreme Court, it makes it clear that to attract the ingredients of Section 354 of IPC, there must be physical force used to outrage the modesty of women. The modesty of a woman is not defined in the Code, however, it may be inferred under the circumstances of the case. In the instant case, the evidence of
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NC: 2023:KHC:31753 CRL.A No. 1269 of 2016 PWs.1 and 2 appears that they have been assaulted by the respondent, PW.3 stated to be the eyewitness, has not supported the case of the prosecution. Therefore, the said assault cannot be accepted on two grounds. Firstly, the friend and eyewitness who is examined as PW.3 has turned hostile. Secondly, PWs.1 and 2 have not produced any medical certificates for the assault.
19. On careful reading of the evidence of all the witnesses and also the findings of the Trial Court, it appears that there is no infirmity in the finding of acquittal recorded by the Trial Court. The prosecution fails to make out the case in the appeal. Hence, the appeal deserves to be dismissed.
20. In the light of the observation made above, I proceed to pass the following:
ORDER The appeal filed by the appellant state is dismissed.
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JUDGE UN List No.: 1 Sl No.: 47