Amit @ Lalu vs State on 25 May, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 20th March, 2017
Decided on: 25th May, 2017

+ CRL.A. 858/2016

AMIT @ LALU ….. Appellant
Represented by: Mr. Braham Singh, Mr. N.S.
Vidhudi, Mr. Rohit Vidhudi,
Ms. Manju, Advs.
versus
STATE ….. Respondent

Represented by: Ms. Meenakshi Chauhan, APP
with Insp. Badruddin Khan,
ASI Jaiveer, PS Khajuri Khas.

CORAM:

HON’BLE MS. JUSTICE MUKTA GUPTA

1. Amit @ Lalu challenges the impugned judgment dated 8th July, 2016
convicting him for offences punishable under Sections 354/354A IPC and
Section 8 of Protection of Children from Sexual Offences Act, 2012 (in short
‘POCSO Act’) and the order on sentence dated 9th July, 2016 directing him
to undergo rigorous imprisonment for a period of three years and to pay a
fine of `3,000/- for offence punishable under Section 8 of POCSO Act,
rigorous imprisonment for a period of one year for the offence punishable
under Section 354A IPC and rigorous imprisonment for a period of one year
and to pay a fine of `1,000/- for offence punishable under Section 354 IPC.

2. Assailing the conviction, learned counsel for the appellant contends
that the present case is a case of sexual harassment punishable under Section
354A IPC and not a case of sexual assault. He further submits that the

Crl.A. 858/2016 Page 1 of 8
appellant cannot be convicted simultaneously for the offences punishable
under Sections 354/354A IPC and Section 8 of POCSO Act.

3. Learned APP for the State on the other hand submits that there is no
illegality in the impugned judgment and the order on sentence. The version
of the prosecutrix was that she was touched thus constituting offence
punishable under Section 8 of POCSO Act. Further the sexual intent is clear
from the fact that the appellant pushed the prosecutrix on the sofa and forced
her for a kiss.

4. FIR No. 247/2013 was registered under Sections 354/354A IPC and
Section 12 of POCSO Act at PS Khajuri Khas on the complaint of PW-3 the
prosecutrix wherein she stated that she studied in class 8th in Govt. Senior
Secondary School, Khajuri Khas, Delhi. On 7th May 2013, around 9:00 P.M.
when she had gone to fetch milk from the dairy of the appellant, the
appellant stated that he wanted something from her. On her asking, he stated
that he wanted a kiss from her. When she rebuked, he held her hand, pulled
her and started assaulting her. He was under the influence of alcohol.
However, she freed herself, went home and narrated the incident to her
mother. After she told PW-4 her mother, she went to the shop of the
appellant to confront him but he started misbehaving with her mother.
Thereafter, PW-8 SI Pravesh Kumar along with the prosecutrix and her
mother went to the house of the appellant where he was present and under
the influence of alcohol. SI Pravesh Kumar interrogated and arrested him.
On 8th May, 2013, statement of the prosecutrix was recorded before the
learned Metropolitan Magistrate under Section 164 Cr.P.C. After completion
of investigation, charge sheet was filed for offences punishable under
Sections 354/354A IPC and Section 12 of POCSO Act and charge was

Crl.A. 858/2016 Page 2 of 8
framed for offences punishable under Sections 354/354A IPC and Section 8
of POCSO Act.

5. Before Court, the prosecutrix deposed in conformity with her
statement made before the police. She further deposed that when the
appellant caught hold of her hand, the appellant pulled down the shutter of
the milk dairy. She deposed that the appellant stated, ‘kajal mujhe tumse kiss
chahiyea’. When she resisted, the appellant forced her for a kiss and threw
her down on the sofa by pulling her hand.

6. Mother of the prosecutrix corroborated the testimony of the
prosecutrix and stated that when the prosecutrix returned home at 9:15 P.M.
on the day of incident, she was weeping and she stated that the appellant had
caught hold of her hand and asked for a kiss.

7. The issue whether an accused could be simultaneously convicted for
offences punishable under Sections 354 and 354A IPC came up for
consideration before this Court in the decision reported as 237 (2017) DLT
271 T. Manikandan Vs. The State (Govt. of NCT of Delhi) Anr. wherein
this Court held-

“6. Sections 354 and 354A to 354D IPC read as under:

“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.

354 A. Sexual harassment and punishment for
sexual harassment.-(1) A man committing any of the
following acts–

Crl.A. 858/2016 Page 3 of 8

(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
354B. Assault or use of criminal force to woman
with intent to disrobe. – Any man who assaults or uses
criminal force to any woman or abets such act with the
intention of disrobing or compelling her to be naked,
shall be punished with imprisonment of either
description for a term which shall not be less than three
years but which may extend to seven years, and shall
also be liable to fine.

354C. Voyeurism.- Any man who watches, or
captures the image of a woman engaging in a private
act in circumstances where she would usually have the
expectation of not being observed either by the
perpetrator or by any other person at the behest of the
perpetrator or disseminates such image shall be
punished on first conviction with imprisonment of either
description for a term which shall not be less than one
year, but which may extend to three years, and shall
also be liable to fine, and be punished on a second or

Crl.A. 858/2016 Page 4 of 8
subsequent conviction, with imprisonment of either
description for a term which shall not be less than three
years, but which may extend to seven years, and shall
also be liable to fine.

354D. 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;

(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 bad 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.”

7. The short issue before this Court is whether the appellant

Crl.A. 858/2016 Page 5 of 8
can be convicted for both the offences punishable under Section
354 and 354A IPC simultaneously. Section 354 IPC provides for
the offence relating to assault or criminal force to woman with
intent to outrage her modesty. Section 354A which was inserted by
Criminal Law (Amendment) Act, 2013 provides for punishment for
sexual harassment.

8. The two necessary ingredients of Section 354 IPC are
‘assault’ or ‘use of criminal force’ to any woman and with the
intention to outrage or knowing it to be likely that he will thereby
outrage her modesty. Sections 350 and 351 IPC define ‘criminal
force’ and ‘assault’ as under:

350. Criminal force.–Whoever intentionally uses force to
any person, without that person’s consent, in order to the
committing of any offence, or intending by the use of such
force to cause, or knowing it to be likely that by the use of
such force he will cause injury, fear or annoyance to the
person to whom the force is used, is said to use criminal force
to that other.

351. Assault.–Whoever makes any gesture, or any
preparation intending or knowing it to be likely that such
gesture or preparation will cause any person present to
apprehend that he who makes that gesture or preparation is
about to use criminal force to that person, is said to commit
an assault.

Explanation.–Mere words do not amount to an assault. But
the words which a person uses may give to his gestures or
preparation such a meaning as may make those gestures or
preparations amount to an assault.

9. Thus when the modesty of a woman is outraged or it is
likely to be outraged coupled with an assault or criminal
force, Section 354 IPC would be attracted. Though assault
can be by mere gesture or preparation intending or knowing
that it is likely that such gesture or preparation will cause
any person present to apprehend use of criminal force. This
is an act more than mere physical contact with advances
involving unwelcome and explicit sexual overtures.
Ingredients of Section 354 IPC would show that the same

Crl.A. 858/2016 Page 6 of 8
mandate an actus reas of assault or criminal force with an
intention to outrage or likely to outrage the modesty whereas
a mere physical contact with advances as noted above would
attract Section 354A IPC. Though in certain fact situations
there may be cases where there may be an overlap of both
Sections 354 and 354A IPC however, there may be cases
which may exclusively fall either in Section 354 or Section
354A IPC. Once an offence falls under Section 354 IPC even
if ingredients of Section 354A IPC are satisfied, the accused
will be punished for Section 354 IPC the same being more
serious in nature as it prescribes the minimum sentence of
one year and term for imprisonment which may extend to five
years.”

8. On the allegations as proved by the prosecution, ingredients of
offence punishable under Section 354 IPC i.e. assault/criminal force to a
woman to outrage her modesty as well as Section 354A IPC i.e. physical
contact with explicit sexual overtures and demand of sexual favour are
fulfilled. Thus, the prosecution has proved beyond reasonable doubt that the
appellant committed the offences punishable under Section 354 IPC as well
as Section 354A IPC.

9. As regards offence punishable under Section 8 of the POCSO Act, the
prosecution has proved that the prosecutrix was a minor studying in 8 th
standard. The Act of the appellant amounts to a sexual assault without
penetration with sexual intent involving physical contact satisfying the
ingredients for offence punishable under Section 8 POCSO Act. Hence the
conviction of the appellant for offence punishable under Section 8 of the
POCSO Act is also upheld.

10. Defence of the appellant is of false implication as payment was due
towards the mother of the prosecutrix. However, no such suggestion has

Crl.A. 858/2016 Page 7 of 8
been given to the witnesses. Though appellant examined Ashraf Malik as
DW-1 however he only witnessed the quarrel between the appellant and
mother of the prosecutrix post the incident. In his reply to the question
No.21 in his statement under Section 313 Cr.P.C. the appellant stated:-

“Q.21 Anything else to say?

Ans. I am innocent. Victim came at my dairy in the presence of
my wife and started touching the things placed on the counter and
I rebuked her for the same. No such incident, as alleged, ever took
place and mother of the victim has concocted a false story to evade
payment of the dues towards the milk supplied to her house, as I
used to supply milk at the house of the victim for the last 2-3 years
before the date of alleged incident and some payment was due
upon them which they were avoiding to make. Victim has been
tutored by her mother to make false statement against me.”

11. For the reasons aforesaid, the impugned judgment of conviction and
order on sentence are upheld.

12. Appeal is dismissed.

13. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.

14. TCR be returned.

(MUKTA GUPTA)
JUDGE
MAY 25, 2017
‘v mittal’

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