State Of Karnataka vs Dastgeer Gous Pheersab
2021 Latest Caselaw 6158 Kant

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          IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

   DATED THIS THE 15TH DAY OF DECEMBER, 2021

                      PRESENT

      THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ

                          AND

          THE HON'BLE MS.JUSTICE J.M. KHAZI

          CRIMINAL APPEAL NO.100069/2018

BETWEEN

STATE OF KARNATAKA,
BY BHATKAL RURAL POLICE STATION,
UTTARA KANNADA DISTRICT, KARWAR,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
                                         ...APPELLANT
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)

AND

DASTGEER GOUS PHEERSAB,
AGE: 35 YEARS,
R/O. GULME, BELALKHAND,
BHATKAL, DIST. KARWAR.
                                         ...RESPONDENT
(BY SRI.VIDYASHANKAR G. DALAWAI, ADV.)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS
378(1) AND (3) OF CR.P.C., PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 01.08.2017
PASSED BY THE SPECIAL JUDGE, UTTARA KANNADA, KARWAR
IN SPECIAL CASE NO.26/2013 AND ETC.
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     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 07.12.2021 COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J.,
DELIVERED THE FOLLOWING:

                        JUDGMENT

Challenging the acquittal of respondent for the

offences punishable under Section 354A of the Indian

Penal Code, 1860 (hereinafter referred to as "IPC" for

short) and Section 8 of the Protection of Children from

Sexual Offences Act, 2012 (hereinafter referred to as

"POCSO Act" for short), the State has filed this appeal

under Sections 378(1) and (3) of the Code of Criminal

Procedure, 1973 (hereinafter referred to as "Cr.P.C." for

short).

2. For the sake of convenience, the parties are

referred to by their rank before the Trial Court.

3. A charge sheet came to be filed against the

accused alleging that on 08.07.2013 at 05:15 p.m. while

prosecutrix was returning from School along with her two

sisters and was proceeding towards her house, near

Sodigadde Cross, accused sexually harassed her by trying

to embrace her from behind with his hands. However, with

utter shock, prosecutrix shouted for help and ran away

along with her sisters and thereby accused committed the

offences punishable under Section 354A of IPC and Section

8 of POCSO Act.

4. Accused has pleaded not guilty and claimed to

be tried.

5. In support of the prosecution case, 8 witnesses

are examined as PWs.1 to 8 and Exs.P1 to 9 are marked.

6. During the course of his statement under

Section 313 of Cr.P.C., accused has denied the

incriminating evidence led on the prosecution side. He has

not chosen to lead evidence on his behalf.

7. After hearing the arguments of both sides, vide

the impugned judgment and order, the learned Special

Judge has acquitted the accused on the ground that the

prosecution has failed to prove the charges levelled against

the accused beyond reasonable doubt, including his

identity.

8. During the course of his arguments, the

learned Additional State Public Prosecutor submits that the

impugned judgment and order of acquittal is contrary to

law, facts of the case and evidence on record. PW.2 is the

victim girl. PW.3 is her sister. Their evidence prove the fact

that on 08.07.2013 when they along with their another

sister were returning from School, accused caught hold of

the shoulder of the prosecutrix and tried to grapple her.

Both PWs.2 and 3 have identified him. The evidence of

PW.5 corroborate with their testimony. The evidence of

PWs.7 and 8 prove the investigation. Without proper

application of mind, the learned Special Judge has

discarded their evidence and as such, his findings are

perverse and not sustainable in law.

9. He would further submit that without

appreciating the testimony of PWs.3 and 5, who are the

eye witnesses, which corroborate with the evidence of the

prosecutrix, the learned Special Judge has held that the

identity of the accused is not established. During the

course of his statement under Section 313 of Cr.P.C., the

accused has not disputed his presence at the place and

time of the incident. The prosecution witnesses have no ill-

will or motive to falsely implicate the accused, who is a

total stranger to them. The accused has not disputed the

medical evidence and also the evidence regarding the age

of the prosecutrix and prays to allow the appeal and

convict and sentence the accused.

10. On the other hand, the learned counsel

representing the accused submits that after going through

the oral and documentary evidence placed on record, the

learned Special Judge has come to a correct conclusion

that the charges levelled against the accused are not

proved including his identity and accordingly acquitted him

and the impugned judgment and order does not call for

interference. He further submitted that having regard to

the fact that accused is acquitted, presumption of his

innocence is fortified and prays to dismiss the appeal.

11. He would further submit that in case this Court

comes to the conclusion that the evidence laid on behalf of

the prosecution is reliable and could be a basis for

convicting the accused, the provisions of Section 8 of

POCSO Act are not attracted and at the most provisions of

Section 354A may be pressed into service, in which event

he may be sentenced under go imprisonment for the

period during which he was in judicial custody.

12. In support of his arguments regarding the

presumption of innocence of the accused, the learned

counsel for the accused has relied upon the decision in the

case of State of H.P. Vs. Puneet Goyal passed in

Criminal Appeal No.346/2007.

13. We have heard elaborate arguments of both

sides and perused the records.

14. It is the definite case of the prosecution that

when PW.2, the prosecutrix was returning from School

along with her two sisters, accused came from behind

them and tried to grab her and at the time he put his arms

across her shoulder, she shouted and all the three girls

started running. Before removing his hands, PW.2,

prosecutrix had glimpse of the accused. All the three girls

came running to the house of PW.5 Ramakrishna, which is

situated by the side of the road and informed him about

the incident. At that time, CW.7 Hanumantha Naik was

also present in the house of PW.5 Ramakrishna. Since the

incident had taken place within few minutes of these girls

informing PW.5 Ramakrishna, all of them went to the place

of occurrence and found accused standing below the

railway bridge which is at a short distance from the place

of occurrence. When they tried to apprehend him, he tried

to run and in the process fell down and sustained minor

injuries. He was brought to the house of PW.5

Ramakrishna. The father of the prosecutrix was informed.

Thereafter, he has filed the complaint.

15. The evidence of PWs.2 and 3 prove the fact of

accused trying to grab PW.2 and all three sisters running

away to the house of PW.5 Ramakrishna. During her cross-

examination PW.2 has stated that when accused tried to

hold her, she looked at him for one time. He had mustache

but was not sporting beard. He was not known to her. The

evidence of PWs.2 and 3 reveal that after making

unsuccessful attempt to grab PW.2, he walked towards the

channel. Ex.P9 is the sketch of the scene of occurrence. It

reveals that the incident has taken place near the bridge

under which the railway line passes and the accused was

apprehended below the said railway bridge.

16. The evidence of PW.5 Ramakrishna supports

and corroborates with the testimony of PWs.2 and 3. He is

a Tailor by profession. His evidence reveals that CW.7

Hanumantha Naik who was present when the girls came

and informed about the incident is not his relative, but he

is a customer of PW.5 Ramakrishna. The evidence of this

witness reveal that after coming to know about the

incident, he, CW.7 Hanumantha Naik along with the

children went to the place where the incident had taken

place and found the accused standing by the railway

bridge and on being pointed out by the children, he and

CW.7 Hanumantha Naik tried to catch him and while trying

to escape, accused fell down and sustained some minor

injuries. He was brought to the house of PW.5

Ramakrishna. PW.5 has also deposed that he informed the

Police as well as PW.1 Jattappa Naik, the father of the

prosecutrix who immediately came to his house. PW.1

along with the victim girl went to the Police Station to

lodge the complaint while they detained the accused.

17. During his cross-examination, PW.5 has

specifically stated that they never manhandled the

accused, but on the other hand, he sustained injury while

trying to escape and fell down. The fact that on that day,

accused was apprehended by PW.5 Ramakrishna and CW.7

Hanumantha Naik and in the process he sustained injury is

not disputed by the defence. PW.5 is questioned as to

whether the incident was brought to the notice of his wife,

he has replied that since they were in a hurry to go to the

spot in order to see whether they could find the person,

they did not choose to inform the incident to his wife.

18. PW.1 Jattappa Naik is the father of the victim

girl. After coming to know about the incident, he

accompanied the victim girl to the Police Station where she

has filed the complaint. His evidence reveals that on

08.07.2013 at about 05:15 p.m. he received a call from

PW.5 Ramakrishna through the cell phone of CW.7

Hanumantha Naik. Immediately he went to the house of

Ramakrishna and found the accused and came to know

about the incident through his daughter. He sent back his

other two daughters home and along with PW.2 victim girl,

he went to the Police Station and the victim girl filed the

complaint as per Ex.P3. He has specifically stated that the

complaint is in the hand writing of the victim girl.

19. As already discussed, accused was not known

to any of the prosecution witnesses. Absolutely there was

no ill-will or enmity between them to falsely implicate the

accused. The evidence of PWs.1, 2, 3 and 5 prove the

allegations against the accused that on the date of

incident, he tried to grab her from behind. Even though

PW.3 has not stated that after PW.2 victim girl shouted

about someone grabbing her, she did not see the face of

the accused, PW.2 has clearly stated that while pushing

away the hands of accused, she had a glimpse of him and

he had mustache, but was not sporting beard. The

evidence of PWs.2, 3 and 5 establishes the fact that within

few minutes of the incident, they went to the spot and

found accused standing near the railway bridge and on

seeing them when he started running, they apprehended

and brought him to the house of PW.5. It is pertinent to

note that the place of occurrence is surrounded by cashew

plantation. Consequently, the movement of people was

very scarce. Moreover, when accused tried to escape, he

fell down and sustained minor injuries and therefore PW.5

and CW.7 Hanumantha Naik were able to apprehend him.

Consequently, both PWs.2 and 3 were able to observe him.

After coming to know about the incident, PW.1 Jattappa

Naik, the father of the victim girl came to the house of

PW.5 Ramakrishna and seen the accused. Therefore,

PWs.1, 2, 3 and 5 were able to identify the accused before

the Court. Consequently, there was no need for conducting

Test Identification Parade of the accused. The testimony of

PWs.1, 2, 3 and 5 identifying the accused is reliable. The

accused has not taken up a defence that the offence in

question was committed by someone else and by mistake

he has been detained by PW.5 Ramakrishna and CW.7

Hanumantha Naik.

20. PW.6 Dr.Savita Kamat has examined PW.2

victim girl and issued wound certificate at Ex.P4. Her

evidence coupled with Ex.P4 reveal that PW.2 victim girl

was in a shock and complained of body pain. During her

cross-examination, PW.6 has stated that she did not

examine the genital of the prosecutrix as the Police

requisition did not ask for it. Even though charge sheet is

filed for the offence punishable under Section 8 of POCSO

Act, the allegation against the accused is that he tried to

grab the prosecutrix from behind while she was returning

from school. Having regard to the nature of the allegation,

the examination of her genital was not required. Virtually

the testimony of PW.6 has remained unchallenged.

21. PW.7 Mamata Rama Naik is the In-charge

Head Mistress. Through her, the date of birth certificate of

the prosecutrix is marked as Ex.P6 and the extract of

Attendance Register for the month of July 2013 is marked

as Ex.P7. The relevant entry dated 08.07.2013 is marked

as Ex.P7(a). Her evidence proves the fact that as on the

date of the incident, the prosecutrix was aged 12 years

and on that day she attended the school. The testimony of

this witness is not disputed by the accused.

22. PW.8 Naveenchandra Jogi has conducted the

investigation and filed the charge sheet. He has spoken to

about it. His evidence including his testimony during cross-

examination that accused sustained minor injuries when

people tried to apprehend him is not disputed by the

accused except making a general suggestion that accused

has been falsely implicated.

23. Thus, through the oral and documentary

evidence placed on record, the prosecution has proved that

on 08.07.2013, at about 05:15 p.m. while the prosecutrix

along with her two sisters was returning from School,

accused tried to grab her from behind by placing his hands

around her shoulders. The evidence of PWs.1 to 3 and 5

also prove the fact that within few minutes of the incident,

accused was apprehended by PW.5 and CW.6 as identified

by PWs.2 and 3. PW.1 has seen the accused in the house

of PW.5. Consequently, the testimony of PWs.1 to 3 and 5

identifying the accused before the Court is admissible.

Therefore, the findings of the Trial Court that the identity

of the accused is not established are contrary to the

evidence on record and as such, it is perverse and it calls

for interference by this Court.

24. In the charge sheet in addition to Section 354A

of IPC, the provisions of Section 8 of POCSO Act, is

pressed into service. Section 8 of POCSO Act prescribes

punishment for sexual assault which is defined under

Section 7 of the POCSO Act which reads as under:

"7. Sexual Assault.-Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

25. The bare perusal of this provision makes it

evident that the allegations establish against the accused

does not attract the provisions of Section 7 of the POCSO

Act which is punishable under Section 8 of POCSO Act.

Consequently, the accused is not liable for punishment

under the said provision.

26. However, Section 354A of IPC defines the term

sexual harassment and prescribes punishment for it. It

reads as under:

"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

        (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."

27. The reading of this provision indicates that the

allegations made and proved against the accused squarely

comes into the ambit of sub clause (i) of sub section (1) of

Section 354A of IPC.

28. The punishment prescribed for the offence

under sub clauses (i) to (iii) of sub Section (1) of Section

354A of IPC is rigorous imprisonment for a term which

may extent to three years or with fine or with both.

29. When once this Court comes to the conclusion

that the findings of the Trial Court are perverse and it calls

for interference, the next question would be to what

punishment the accused is liable.

30. As evident from the charges levelled against

the accused and proved, accused tried to grapple the

prosecutrix and fortunately for both the prosecutrix as well

as the accused, he did not succeed in his attempt. Before

he could lay his hands on her shoulders, the prosecutrix

threw his hands away and ran. Immediately within few

minutes of the incident, accused was apprehended and in

his attempt to escape, he sustained some minor injuries.

After his arrest, he was remanded to judicial custody.

Before he could secure bail, he was in judicial custody for a

period of 15 days i.e., from 09.07.2013 to 23.07.2013.

Taking into consideration these aspects, we are of the

considered opinion that looking to the gravity of the

offence established against the accused, it is sufficient and

adequate to sentence the accused for imprisonment for the

period already in custody.

31. It is relevant to note that the maximum

punishment prescribed for the offence punishable under

Section 354A of IPC is imprisonment for a period which

may extend up to three years or with fine or both.

Consequently, it comes under the category of warrant trial.

In case of warrant trial, Section 248(2) of Cr.P.C.

mandates that before imposing the punishment, the

accused shall be heard on the question of sentence. In the

present case, as we are of the considered opinion that

imposing punishment of imprisonment for the period

during which the accused was in judicial custody would

meet the ends of justice, we hold that there is no need to

hear the accused on the question of sentence. However,

this shall not be treated as a precedent.

32. In the result, we proceed to pass the following:

ORDER

Appeal filed by the State is allowed. The impugned

judgment and order of acquittal dated 01.08.2017 in

Special Case No.26/2013 on the file of the Special Judge,

Uttara Kannada, Karwar is hereby set aside.

Accused is convicted for the offence punishable

under Section 354A of IPC. He is sentenced to undergo

imprisonment for the period during which he was in judicial

custody.

Sd/-

JUDGE

Sd/-

JUDGE

Rsh