and order dated 15.01.2025, passed in Special Sessions Trial No.
354 of 2023, State of Uttarakhand vs. Ujaib ("the case"), by which,
months, therefore, if conviction is maintained,
the appellant may be sentenced to the period of
custody, which he has already undergone.
9. On the other hand, learned State Counsel submits that
the prosecution has proved its case beyond reasonable doubt and
no interference is warranted. Learned State Counsel submits that,
in fact, the offence under Section 354 IPC and Section 7 of the Act
is not made out in the instant case. But, according to her, the facts
made out an offence under Section 354-D IPC and Section 11/12 of
the Act.
10. In the instant case, as stated, there are two victims.
PW1, one of the victims has stated that whenever she and her
friend would go to school, the appellant would follow them; he was
told not to follow them, but he did not stop his activities. On
14.02.2023, at 03:00 PM, when the victims were returning from the
school, the appellant followed them. He was told not to follow them.
Thereafter, the victims reported the matter to a local person. They
apprehended the appellant and took him to police station. This is
what PW2, another victim has also stated.
11. PW3 is father of PW2, the victim. He also stated that he
was told about the incident by his daughter.
12. PW4 is the Principal of the School of the victim no.1,
who told that PW1 is studying in her school. She has proved the
Admission Application Form of PW1 as Ex. P-3, Transfer Certificate
as Ex. P-4, Scholars Register Entry as Ex. P-5 and record
pertaining to Board Examination as Ex. P-6. According to her the
date of birth of PW1, the victim is 05.05.2007.
13. PW5 is mother of PW1, the victims. She has lodged the
FIR. She has also stated that soon after the incident, the appellant
was apprehended by the local people and he was also taken to the
police station.
14. PW6 is the Principal of another school, where PW2
studied. She has proved the Admission Application Form of PW2 as
Ex. P-8, which records date of birth of PW2, the victim as
04.07.2008. She also proved the documents in support thereof,
such as P-9 affidavit of the father of PW2, given in respect of the the
date of birth of PW2, P-10 extract of Scholars Register, P-11 Extract
of record relating to Board Examination.
15. PW7 has written the FIR and chik FIR. He has proved
those documents as Ex. P-12 and Ex. P-13.
16. PW8 is the Investigating Officer. She has stated about
the investigation and proved the site plan Ex.P-14 and charge-sheet
as Ex. P-15.
17. PW9 Constable Surendra Singh is the person, who
prepared the arresting memo, when the appellant was taken at
police station on the date of incident itself. He has prepared
documents relating to it, which are Ex. P-16 and P-17.
18. It is true that according to the FIR, on the date of
incident, when the appellant tried to molest the victims, they raised
alarm and Hitesh Kumar, Sona Thakur and Rajeev Parnami
reached there and it is also true that they have not been examined
as witnesses. But, it does not affect the prosecution case. It is
consistent case of the prosecution that the appellant would follow
the victims. He was told not to follow the victims, but he did not
stop his activities.
19. The only question that requires determination is the
appreciation of the evidence of PW1 and PW2, both the victims.
PW1 and PW2, both the victims in their statements have stated that
the appellant used to follow them, he was told by them not to follow
them, but the appellant did not stop. On the date of incident also,
according to the witnesses, the appellant followed the victims. He
was told not to do so and, thereafter some locals were informed by
the victims; the appellant was apprehended and taken to police
station where FIR was lodged. PW1 and PW2, both were examined
under Section 164 of the Code also. Similar statements were given
by them in the statement under Section 164 of the Code. Both, the
victims have not stated that the appellant either assaulted or used
any force against them. The statements of PW1 and PW2 are just
natural statements. They inspire confidence. Nothing has been
shown which may cast even a slightest doubt in their testimony.
The statements of PW1 and PW2 prove beyond reasonable doubt
that the appellant followed the victims repeatedly, despite a clear
indication of disinterest by the victims.
20. Now the question is as to under which Section(s)
charge has been proved by the prosecution.
21. The appellant has been convicted under Section 354
IPC, Section 7 read with Section 8 and Section 11 read with Section
12 of the Act.
22. Section 354 IPC is as follows:-
"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 which may extend to five years, and shall
also be liable to fine.
23. Sections 7 and 11 of the Act are as follows:-
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.
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
(ii) makes a child exhibit his body or any part of his body so as it is
seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic
purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child
either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated
depiction through electronic, film or digital or any other mode, of
any part of the body of the child or the involvement of the child in
a sexual act; or
(vi) entices a child for pornographic purposes or gives gratification
therefor."
24. In the instant case, the statements of victims, in no
manner, suggests that any assault or criminal force was used by
the appellant against the victims. Therefore, in the instant case, the
prosecution has not been able to prove the charge under Section
354 IPC. This is admitted by the learned State Counsel also.
25. The prosecution has been able to prove that the
appellant followed the victims repeatedly despite having been told
not to do so. This is an offence defined under Section 354-D IPC. It
reads as follows:-
"354-D. Stalking.--(1) Any man who--
(i) follows a woman and contacts, or attempts to contact
such woman to foster personal interaction repeatedly despite
a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, email or any
other form of electronic communication, commits the offence
of stalking:
Provided that such conduct shall not amount to stalking if the
man who pursued it proves that--
(i) it was pursued for the purpose of preventing or detecting
crime and the man accused of stalking had been entrusted
with the responsibility of prevention and detection of crime
by the State; or
(ii) it was pursued under any law or to comply with any
condition or requirement imposed by any person under any
law; or
(iii) in the particular circumstances such conduct was
reasonable and justified.
(2) Whoever commits the offence of stalking shall be punished
on first conviction with imprisonment of either description for a
term which may extend to three years, and shall also be liable to
fine; and be punished on a second or subsequent conviction, with
imprisonment of either description for a term which may extend to
five years, and shall also be liable to fine."
26. As such, no charge under Section 354-D IPC has been
framed against the appellant. But, it is less grave than the offence
under Section 354 IPC, of which, charge has been framed against
the appellant. In fact, charge under Section 354 IPC has been
framed against the appellant on the ground that the appellant
followed the victims repeatedly and tried to molest them. As stated,
the part of molestation has not been proved by the prosecution and
it was not told by any of the victims. While framing charge, it has
been told to the appellant that he was following the victims. The
offence under Section 354-D IPC is less grave than Section 354 IPC,
therefore, the appellant may be convicted for the offence under
Section 354-D IPC. Insofar as the offence under the provisions of
the Act is concerned, in the instant case, it is not the case of the
victims that with any sexual intent, the appellant touched any of
their body parts. The offence under Section 7 of the Act has not
been proved in the instant case. But, offence under Section 11,
which is punishable under Section 12 of the Act has been proved
by the prosecution beyond reasonable doubt.
27. In view of the foregoing discussion, this Court is of the
view that the appellant is liable to be acquitted of the charge under
Section 354 IPC and Section 7 read with Section 8 of the Act.
However, the conviction of the appellant under Section 11 read with
Section 12 of the Act is liable to be upheld. The appellant is also
liable to be convicted for the offence under Section 354-D IPC.
28. Now, the question of sentence arises, Section 42 of the
Act. Section 42 of the Act provides for alternate punishment. It
reads as under:-
"42. Alternate punishment.--Where an act or omission
constitutes an offence punishable under this Act and also under
Sections 166-A, 354-A, 354-B, 354-C, 354-D, 370, 370-A, 375,
376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB, 376-
E, Section 509 of the Indian Penal Code or Section 67-B of
the Information Technology Act, 2000 (21 of 2000), then,
notwithstanding anything contained in any law for the time being
in force, the offender found guilty of such offence shall be liable to
punishment under this Act or under the Indian Penal Code as
provides for punishment which is greater in degree."
29. The conviction of the appellant has been upheld under
Section 11 of the Act and he is liable to be convicted under Section
354-D IPC. In view of Section 42 of the Act, he may be punished
under the Act or under IPC, as provides for punishment, which is
greater in degree.
30. For the offence under Section 354-D IPC, the
punishment for first conviction is imprisonment of either
description for a term, which may extend to three years and fine.
The punishment under Section 12 of the Act is same. Therefore, the
appellant may be sentenced under Section 354-D IPC only.
31. Having considered the nature of offence and the act
done by the appellant, this Court is of the view that under Section
354-D IPC, the appellant may be sentenced to the period of
custody, which he has already undergone in the case with a fine of
Rs. 10,000/-. If the appellant makes default in payment of fine, he
may be required to undergo simple imprisonment for a further
period of one month.
32. The appeal is partly allowed.
33. The appellant is acquitted of the charge under Section
354 IPC and Section 7 read with Section 8 of the Act.
34. The appellant is convicted under Section 354-D IPC.
35. The conviction of the appellant under Section 11 read
with Section 12 of the Act is upheld.
36. The appellant is sentenced under Section 354-D IPC to
the period of custody, which he has already undergone in this case
with a fine of Rs. 10,000/-. In default of payment of fine, the
appellant shall undergo simple imprisonment for a further period of
one month.
37. The appellant is in jail. Let him be set free forthwith, if
not wanted in any other case.
38. Let a copy of this order be sent to the court concerned
for intimation and compliance.
(Ravindra Maithani, J.)
18.07.2025
Sanjay
