Bombay High Court

Vishnu Prakash Patole vs The State Of Maharashtra on 25 August, 2022

Bench: S. V. Kotwal

                                                      1 of 21              23-apeal-1070-17


                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                     CRIMINAL APPEAL NO. 1070 OF 2017

                     Vishnu Prakash Patole                              ..Appellant
                          Versus
                     The State of Maharashtra                           ..Respondent

                                                 __________
                     Mr. Mithilesh Mishra (Appointed Advocate) for Appellant.
                     Mr. R. M. Pethe, APP for State/Respondent.
                                                 __________

                                             CORAM : SARANG V. KOTWAL, J.
                                             DATE : 25th AUGUST 2022
                     JUDGMENT :

1. The Appellant has challenged the Judgment and order

dated 03/11/2017 passed in POCSO Special Sessions Case No.114

of 2015 by the learned Special Judge, Pune under the Protection of

Children from Sexual Offences Act.. The Appellant was convicted

for commission of offence punishable U/s.354-A(1)(i) of IPC and

was sentenced to suffer R.I. for six months and to pay a fine of

Rs.1000/- and in default to suffer R.I. for 15 days. The Appellant

was also convicted for commission of offence punishable U/s.12 of

the Protection of Children from Sexual Offences Act (for short

Digitally signed by 'POCSO') and was sentenced to suffer R.I. for 6 months and to pay VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

2022.08.29 17:23:02 +0530 Gokhale 2 of 21 23-apeal-1070-17

a fine of Rs.1000/- and in default to suffer further R.I. for 15 days.

Substantive sentences were directed to run concurrently.

2. Heard Shri. Mithilesh Mishra, learned counsel appointed

for the Appellant and Shri. Pethe, learned APP for the State.

3. The prosecution case is that, the victim in this case was

15 years of age at the time of incident dated 08/01/2015. On that

day, at around 4.15p.m. the appellant came in front of the house of

the victim/first informant, pulled down his pant and was doing

obscene act which amounted to aforesaid offences. The F.I.R. was

lodged at Khadak police station, Pune. The Appellant was arrested,

the investigation was carried out in connection with the said

offence registered vide C.R.No.04 of 2015 at that police station.

After conclusion of the investigation, charge-sheet was filed and

the Appellant faced the trial, as mentioned earlier.

4. During investigation the Appellant was in custody from

09/01/2015 to 20/01/2015. That period was given as set off to

him. After his conviction the Appeal was admitted and he was

granted bail. However, he did not furnish bail as directed and, 3 of 21 23-apeal-1070-17

therefore, he had to be arrested under a warrant. As of today he is

in custody since 01/08/2022, pursuant to the execution of N.B.W.

There was no one representing him since November 2021 before

the Court and, therefore, Advocate Shri. Mithilesh Mishra was

appointed to represent him in this case.

5. During trial, the prosecution examined seven witnesses

including the victim, her friend, her sister, her Aunt, her neighbour,

pancha for spot panchanama and the Investigating Officer. The

defence of the Appellant was of total denial. At the conclusion of

the trial, the Appellant was convicted and sentenced as mentioned

earlier.

6. The prosecution case depends on the evidence of all

these witnesses, but the most important witness is the victim

herself.

7. The victim was examined as PW-1. She was about 16

years of age at the time of incident. She has deposed that, her date

of birth is 23/02/1999. There is absolutely no challenge to this

deposition and, therefore, it has to be accepted that her date of 4 of 21 23-apeal-1070-17

birth is 23/02/1999. She has further deposed that, on the date of

incident she was studying in 11th standard. She was residing with

her parents, her grand-mother, her maternal uncle, her elder sister

and cousin. On 08/01/2015, at about 4.00p.m. to 4.15p.m. she

was in the house with her grand-mother, her elder sister and

cousin. She had returned from the college. She knew the

appellant. She used to see him on the way while going to college.

At the time of incident, she was sitting in front of gate of her

house. Her grand-mother was sleeping inside and her sister and

cousin were sitting in the room nearby. PW-1 was playing a game

on the mobile phone. Suddenly, she saw that the Appellant was

standing near the door of her house. She saw that, he had pulled

down his pant and was doing obscene act. She was shocked and

she shouted calling her sister. In the meantime, the Appellant ran

away. Her elder sister immediately rushed outside the house and

saw that the Appellant was running away. PW-1 told this incident

to her grand-mother and her cousin. Her mother returned home at

around 6.15p.m. She was also told about the incident. Her

maternal uncle came at 10.45p.m. He was also told about the 5 of 21 23-apeal-1070-17

incident. He advised that the report should have been lodged

immediately. Therefore, they rushed to Mithganj police chowky

and lodged the report. The F.I.R. is produced on record at Exhibit

6. PW-1 identified the Appellant before the Court. Her statement

was also recorded U/s.164 of Cr.p.c. It was also produced on

record at Exhibit 7.

In the cross-examination, she was asked about the

distance between her house and college. She used to go by bus to

her college. Her family was dependent on the income of her

mother and her maternal uncle. Her sister was married. It was a

love marriage and was performed on 26/02/2015. Her brother in

law used to visit their house before their marriage in December

2014 and January. She admitted that, there were houses

surrounding her house. There was a video parlour and a public

toilet in front of her house. She denied the suggestion that her

brother in law told her the name of the Appellant. She could not

explain as to why it was not mentioned in the F.I.R. that, she was

playing a game on the mobile phone. She did not know whether

the relations between her brother in law and the appellant were 6 of 21 23-apeal-1070-17

cordial or not. Even at the time of recording of her statement

U/s.164 of Cr.p.c. her brother in law was present. However, she

denied that, her brother in law was present when her F.I.R. was

lodged. But, she admitted that, before that, her brother in law was

present and there was some discussion with him. She however

denied that, she lodged her F.I.R. at the instance of her brother in

law.

8. In the F.I.R. the name of the Appellant is specifically

mentioned. Rest of the narration in the F.I.R. corroborates her

deposition. Even her statement U/s.164 of Cr.p.c. corroborates her

deposition.

9. PW-2 is her cousin. She and PW-1's sister were sitting in

the T. V. room. PW-1 was sitting at the door of the house. Suddenly,

PW-1 shouted and told her sister to see what a man in front of the

door was doing. PW-2 and PW-1's sister went to the door and they

saw one person running away on the road. PW-1 told them about

the incident. However, PW-2 has not been able to identify that

person. She had not seen him.

7 of 21 23-apeal-1070-17

In the cross-examination, she denied that, she had not

gone to the police station on the date of incident.

10. PW-3 was the victim's elder sister. She was residing with

her family including the victim. She was present in the house when

the incident took place. She has deposed that the victim was sitting

in front of the gate of their house and playing game on the mobile

phone. PW-2 and PW-3 were sitting in the same room at some

distance and the front door was not visible to them. All of a

sudden, PW-1 shouted and asked PW-3 to come near her to see

what the offender was doing. PW-3 rushed there. She saw the

Appellant was running; while running he was lifting his pant. They

chased him, but he could not be caught. PW-1 started crying. She

narrated the incident. She told PW-3 that the Appellant was

showing his private parts. On the same day, when her maternal

uncle came home, they went to the police station and lodged the

complaint. At the time of lodging of complaint, they made

inquiries. They came to know the name of the accused. His name

was mentioned in the F.I.R. PW-3 has identified the appellant who

was present in the Court. Her statement was also recorded U/s.164 8 of 21 23-apeal-1070-17

of Cr.p.c.

In the cross-examination, she was asked about

omission from her police statement that they had made inquiry

about the name of the boy. She could not explain that omission.

Apart from that, there is hardly anything of consequence in her

cross-examination.

11. PW-4 was Aunt of the victim. At around 11.00p.m. in

the night she returned to her house from her job. At that time, she

saw that the victim was crying. The victim told her about the

incident. The victim had told her the name of the accused and she

had described the incident. This witness insisted that, PW-1 and

her mother should go to the police station and lodge F.I.R.

12. PW-5 Malan Kuchekar was residing in the area, but she

did not support the prosecution case and was declared hostile.

13. PW-6 Leela Bhise was a pancha who was present during

panchanama of the house where the incident had taken place. Her

evidence is not important.

9 of 21 23-apeal-1070-17

14. PW-7 Shivaji Deokar, A.P.I. was the investigating officer.

He investigated the offence registered vide C.R.No.4 of 2015 at

Khadak police station. The Appellant was arrested on 09/01/2015.

The arrest panchanama was prepared, the spot panchanama was

prepared and the statements of witnesses were recorded by him.

In the cross-examination, he denied the suggestion that

he recorded the statements falsely.

This, in short was the prosecution evidence.

15. The defence of the appellant was of total denied. He has

however answered to the question No.18 in his examination

U/s.313 of Cr.p.c. that, this complaint was lodged at the instance

of brother in law of the victim.

16. Learned trial Judge considered the evidence, heard the

parties and then reached the conclusion that the Appellant had

committed this offence. He observed in paragraph 21 of his

Judgment that the defence of the appellant was unacceptable and

there was no reason for PW-1 to fall prey to the designs of her

brother in law to implicate the appellant falsely. Learned Judge 10 of 21 23-apeal-1070-17

convicted the appellant for both the offences and sentenced him as

mentioned earlier.

17. Learned counsel for the Appellant submitted that, the

prosecution has not proved age of the victim and has not proved

that, she was minor. He submitted that, there was no other

independent witness, though the offence had taken place in a

crowded locality. He further submitted that the allegations do not

show that the victim was targeted. The appellant had not done any

particular act targeting the victim - PW-1. He further submitted

that, at the highest, it can be the offence U/s.294 of IPC, for which

no Charge was framed. There was no independent witness

examined. The only independent witness examined in the case had

turned hostile, therefore, there was no independent corroboration

to the version of the victim. There are indications that the F.I.R.

was lodged at the behest of victim's brother in law. The F.I.R. is not

lodged immediately. Apart from that, he submitted that,

ingredients of Section 354-A(1)(i) of IPC are not made out. The

main ingredients of the said clause required physical contact and

there was no allegation of physical contact and, therefore, offence 11 of 21 23-apeal-1070-17

U/s.354-A(1)(i) of IPC is not made out. Therefore, conviction to

that extent needs to be set aside. He further submitted that, since

the age of the victim is not proved, even offence under POCSO is

not proved and the Appellant deserves to be acquitted from all the

Charges.

18. On the other hand, learned APP submitted that, age of

the victim was not challenged and, therefore, offence U/s.12 of

POCSO is clearly established. Apart from that, he submitted that

the Appellant's act falls within the four corners of Section 354-A(1)

(i) of IPC. The word 'and' appearing in sub clause should be read

as 'or' and, therefore, conviction and sentence was properly

recorded.

19. I have considered these submissions. As far as, age of the

victim is concerned, it is neither challenged in the cross-

examination nor in the answers given by the appellant in his

statement recorded U/s.313 of Cr.p.c. The age of the victim,

therefore, is not challenged by the defence and, therefore, PW-1's

evidence will have to be accepted that she was below 18 years of 12 of 21 23-apeal-1070-17

age.

20. As far as quality of evidence of PW-1 is concerned, she

has given clear answers and she has described the incident in

detail. The name of the Appellant was mentioned in her F.I.R. She

has identified the Appellant before the Court. She has explained

that, she was knowing the Appellant as she used to see him on the

way while going to her college. Her deposition is sufficiently

corroborated by her F.I.R. and her statement recorded U/s.164 of

Cr.p.c. on 13/04/2015. The victim had got scared and only after

her mother and maternal uncle returned home from their job in

the late evening, after 9'O clock the family went to the police

station and lodged F.I.R. Therefore, there was hardly any delay in

lodging of F.I.R. As rightly observed by the learned Judge, the

defence of the Appellant that, it was lodged at the behest of

brother in law of the victim is not acceptable. There is nothing

brought on record except some suggestion that, it was lodged at

the behest of brother in law of the victim. No further suggestion of

dispute between the Appellant and her brother in law is either

suggested or stated in the statement of the Appellant recorded 13 of 21 23-apeal-1070-17

U/s.313 of Cr.p.c. Therefore, there was no reason for the victim to

name the Appellant falsely. The incident is supported by other

witnesses, though, they have not actually seen what the Appellant

had done. The victim - PW-1 had immediately shouted and sought

help from her sister. At that time her sister and her cousin,

examined as PW-3 and PW-2 respectively, were present in the

house. They rushed for her help and they also saw a boy was

running away. Though they did not see his face, the fact remains

that, after PW-1 had shouted, that boy was running away from the

spot. Therefore, to that extent their evidence corroborates

deposition of PW-1. Their evidence for fixing identity of the

Appellant is not of much use, but for that purpose, evidence of PW-

1 is sufficient. She has named the Appellant in her F.I.R. She has

explained how she knew the Appellant. She identified him in the

Court. In this view of the matter, learned Judge did not commit

any error in relying on her evidence. Even in my opinion, the

prosecution has sufficiently proved the case against the Appellant

beyond reasonable doubt.

21. Section 12 of POCSO is the penal section for 'sexual 14 of 21 23-apeal-1070-17

harassment'. 'Sexual harassment' is defined U/s.11 of POCSO. Sub

Clause (i) of Section 11 of POCSO reads thus:

11. Sexual harassment - A person is said to commit sexual harassment upon a child when such person with sexual intent -

(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or

22. Thus, there is no doubt that the act of the Appellant

falls within four corners of the said section. Therefore, offence

U/s.12 of POCSO is made out.

23. As far as submission of learned counsel for the Appellant

regarding Section 354-A(1)(i) of IPC is concerned, it is necessary

to reproduce said section in its entirety.

24. Section 354-A of IPC reads thus:-

"354-A. Sexual harassment and punishment for sexual harassment - (1) A man committing any of 15 of 21 23-apeal-1070-17

the following acts -

(i) physical contact and advances involving unwelcome and explicit sexual overtures; or

(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."

25. For the purpose of submission of learned counsel for

Appellant, clause (i) is important. According to learned counsel for

the Appellant, the words 'physical contact' and 'advances' are 16 of 21 23-apeal-1070-17

separated by the word 'and'. Hence, they are distinct. The word

'and' is used for conjunctive purpose. According to him, the first

part 'physical contact' is the precondition for bringing the offence

under clause (i).

26. Learned counsel for the Appellant relied on the

Judgment of the Hon'ble Supreme Court in the case of Union of

India and others Versus Ind-Swift Laboratories Limited1.

27. On the other hand, learned APP relied on another

Judgment of the Hon'ble Supreme Court in the case of Cable

Corporation of India Limited Versus Additional Commissioner of

Labour and others2 to contend that the word 'or' is normally

disjunctive and word 'and' is normally conjunctive. But at times

they are read as vice versa to give effect to the manifest intention

of the legislature as disclosed from the context.

28. The amendment by way of introducing Section 354-A of

I.P.C. was made in the year 2013. The title of the section mentions

thus - "Sexual harassment and punishment for sexual harassment".

1 (2011) 4 Supreme Court Cases 635 2 (2008) 7 Supreme Court Cases 680 17 of 21 23-apeal-1070-17

The intention of the legislature is to provide punishment for

'sexual harassment' and for that purpose it is mentioned as to what

constitutes 'sexual harassment'. The list of various acts is given

which would fall within the meaning of 'sexual harassment'. In

that context, various acts are covered. Thus, that section

specifically gives list of different acts which would fall within the

meaning of 'sexual harassment'. Clause (i) of Section 354-A of IPC

also lists the acts of accused which would be covered within the

meaning of 'sexual harassment'. Therefore, it cannot be said that

'physical contact' is a pre-requisite for 'advances involving

unwelcome and explicit sexual overtures' to bring it within the

meaning of 'sexual harassment' making it punishable. The phrase

'involving unwelcome and explicit sexual overtures' is common for

both the words 'physical contact' and 'advances'. Physical contact

involving unwelcome and explicit sexual overtures would be

'sexual harassment' and even 'advances involving unwelcome and

explicit sexual overtures' would also fall within the meaning of

'sexual harassment'. Therefore, 'physical contact' and 'advances'

are two separate categories which complete the list mentioned 18 of 21 23-apeal-1070-17

U/s.354-A of IPC. There is nothing to suggest that for the act of

advances involving unwelcome and explicit sexual overtures to be

termed as 'sexual harassment; physical contact is necessary. In this

view of the matter, the conviction U/s.354-A(1)(i) of IPC is

properly recorded and there is no reason to interfere with the

reasoning given by the learned trial Judge. The act of the

Appellant would fall under both sections which are Section 12 of

POCSO, as well as, Section 354-A(1)(i) of IPC.

29. The next question would be about imposition of

sentence. The Appellant was sentenced to suffer R.I. for 6 months

and to pay a fine of Rs.1000/- and in default to suffer further R.I.

for 15 days for the offence punishable U/s.354-A(1)(i) of IPC. He

was also sentenced to suffer R.I. for 6 months and to pay a fine of

Rs.1000/- and in default to suffer R.I. for 15 days for the offence

punishable U/s.12 of POCSO. Substantive sentences were directed

to run concurrently. The Appellant was in custody from

09/01/2015 till 20/01/2015. He was given set off for that period.

After that, during pendency of Appeal he was granted bail, but he

did not furnish bail and, therefore, he was arrested under non 19 of 21 23-apeal-1070-17

bailable warrant. He was arrested on 01/08/2022 and since then

he is in custody. Thus, he has suffered his sentence for about 36

days. The offence is old. It had taken place on 08/01/2015. In

between, there are no allegations that the Appellant has caused

any harassment to the victim or has committed any other similar

offence. It also appears that the Appellant is in bad financial state

as he is represented by advocate appointed through legal aid

panel. Therefore, some leniency can be shown to the Appellant, as

far as, sentencing part is concerned. Therefore, in my opinion,

substantive sentence for three months for each of these offences

would serve the ends of justice.

30. Hence, the order:

ORDER

i) The Appeal is partly allowed.

ii) The conviction of the Appellant U/s.354-A(1)(i)

of IPC and U/s.12 of POCSO is maintained,

however, sentence is altered as follows:

20 of 21 23-apeal-1070-17

iii) For commission of offence punishable U/s.354-

A(1)(i) of IPC the Appellant is sentenced to

suffer R.I. for three months and to pay a fine of

Rs.1000/- and in default of payment of fine to

suffer further R.I. for 15 days.

iv) For commission of offence punishable U/s.12 of

POCSO the Appellant is sentenced to suffer R.I.

for three months and to pay a fine of Rs.1000/-

and in default of payment of fine to suffer

further R.I. for 15 days.

v) Substantive sentences shall run concurrently.

vi) The Appellant is granted set off U/s.428 of

Cr.p.c. for the period which he has undergone in

the jail as an undertrial prisoner.

vii) The period spent by the Appellant in custody

after his arrest on 01/08/2022 pursuant to

execution of non bailable warrant shall be

counted as part of his substantive sentence. The 21 of 21 23-apeal-1070-17

trial Court shall ensure that, there is no

communication gap and the Appellant is

detained only for the period of sentence imposed

on him in accordance with law, so far as, this