HONOURABLE JUSTICE G.SRI DEVI
CRL.A.No.244 of 2011
JUDGMENT:
This appeal is directed against the judgment of the
learned II Additional Metropolitan Sessions Judge, at
Hyderabad, in S.C.No.288 of 2010 dated 11.02.2011, whereby
the appellant/accused was convicted for the offence punishable
under Section 354 of I.P.C. and sentenced to undergo rigorous
imprisonment for a period of three years and to pay a fine of
Rs.5,000/- in default of payment of fine, to suffer simple
imprisonment for a period of two months.
The case of the prosecution is that on 25.05.2010, P.W.1,
who is working as Assistant Commissioner and Executive
Officer of Sri Yellamma Pochamma Temple, Balkampet,
Hyderabad, lodged a complaint stating that one of the devotees
complained that on 25.05.2010 at about 1225 hours while the
female devotees were offering their prayers to the Goddess Sri
Yellamma and Pochamma Temple premises by taking rounds
around the Dwaja Stambham, the appellant/accused, moved
behind the female devotees and touched their backs and
misbehaved with them. Further, the accused has opened his
pant zip and exposed his private parts to the female devotees
and insulted their modesty. Basing on the said complaint, the
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Police, S.R.Nagar Police Station, Hyderabad, registered a case
in Crime No.584 of 2010 for the offence punishable under
Section 354 of I.P.C. After completion of investigation, charge
sheet has been filed against the accused under the aforesaid
offence.
The plea of the accused is one of total denial. The
prosecution, in order to prove its case against the accused,
examined P.Ws.1 to 5 and got marked Exs.P1 to P4. The
learned Additional Metropolitan Sessions Judge, on appraisal
of entire evidence, both oral and documentary, held that the
prosecution has proved its case against the accused for the
offence under Section 354 of I.P.C. and accordingly convicted
and sentenced him as stated supra. Aggrieved by the said
conviction and sentence, the appellant/accused preferred the
present appeal.
Learned Counsel for the appellant/accused submitted
that the judgment of the trial Court is based on unjustified
presumptions and assumptions, which resulted in grave
miscarriage of justice. The trial Judge wrongly came to the
conclusion that the appellant/accused has committed the
offence under Section 354 of I.P.C. though the ingredients of the
above Section are not attracted. It is also submitted that the
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trial Court failed to appreciate the fact that there are number of
contradictions in the evidence of the prosecution witnesses and
also failed to appreciate that they did not support the case of
the prosecution. It is further submitted that the impugned
judgment is illegal, untenable and arbitrary and the same is
liable to be set aside. He further submitted that P.Ws.2 and 3,
who are alleged to be the eyewitnesses to the incident, have
turned hostile and none of the victims were examined by the
prosecution. Hence, he prayed for setting aside the conviction
and sentence passed by the trial Court against the
appellant/accused.
On the other hand, the learned Additional Public
Prosecutor appearing for the respondent/complainant
submitted that there is sufficient material to show that the
appellant/accused was accountable for the commission of
offence and, therefore, the conviction and sentence passed by
the Court below is justified and no interference is called for
from this Court.
In the light of the aforesaid submissions, the point for
consideration is whether the conviction and sentence imposed
by the trial Court against the appellant/accused needs any
interference from this Court or not?
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Before admitting to the evidence, it is necessary to
have a glance at Section 354 I.P.C.
Section 354 of I.P.C. reads as follows :-
“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 may extend to two
years, or with fine, or with both.”
In order to prove its case, the prosecution examined
P.Ws.1 to 5. P.W.1 is the complainant, P.Ws.2 and 4 are alleged
to have witnessed the occurrence and both of them did not
support the case of prosecution. P.Ws.3 and 5 are the formal
witnesses, out of whom, P.W.5 is the Investigating Officer of
the crime.
The evidence of P.W.1, who lodged the complaint, is that
he is working as Assistant Commissioner and Executive Officer
of Sri Yellamma Pochamma Temple, Balkampet, Hyderabad
and he saw the appellant/accused in the Temple. On
25.05.2010 one Mallesham (L.W.2) brought the
appellant/accused and informed him that he was misbehaving
with the female devotees and as such he gave a complaint-
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Ex.P1 and the police came to the temple and recorded his
statement. In the cross-examination, he admits that he does not
have any personal knowledge about the incident and he has not
seen any incident. A perusal of his evidence clearly shows that
except lodging the complaint he does not know anything about
the incident.
P.W.2, who is alleged to be an eyewitness to the incident,
did not support the prosecution case. Though he was cross-
examined at length no incriminating material could be elicited
against the appellant/accused.
P.W.3, who registered Ex.P3 F.I.R., in his evidence,
deposed that on 25.05.2010 at about 1.00 P.M., he received a
phone call from P.W.1 and he visited the temple, where he
received Ex.P1-Complaint and on receipt of the same he
registered a case in Crime No.584 of 2010 for the offence under
Section 354 of I.P.C. against the appellant/accused. In the
cross-examination, he admits that no female devotees have
given complaint and that the name of the accused was not
mentioned in the complaint. Except registration of crime and
issuance of the First Information Report (Ex.P3), nothing has
been stated by P.W.3 against the appellant/accused.
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P.W.4, who is also an eyewitness to the incident, did not
support the case of prosecution. Though she was cross-
examined at length no incriminating material could be elicited
against the appellant/accused.
P.W.5 is the Investigating Officer, who conducted
investigation in the above crime. In his evidence, he deposed
that he examined P.Ws.1, 2 and 4 and L.W.2, visited the scene
of offence and apprehended the accused.
The case of the prosecution is that on the date of incident
the accused moved behind the female devotees, who were
taking rounds (Pradakshinas) around Dwaja Stambham in
Yellamma and Pochamma Temple, Balkampet, S.R.Nagar,
Hyderabad, touched their backs and misbehaved with them.
The evidence of P.W.3 would show that on receipt of a
telephonic call from P.W.1, he went to the Temple and received
the complaint (Ex.P1). He admits that the name of the accused
was not mentioned in the complaint. However, the evidence of
P.W.5-Investigating Officer would show that on the date of
incident itself, he apprehended the accused, who was present in
the office of P.W.1. Though the accused was present in the
office of P.W.1, what prevented P.W.1 in mentioning the name
of the accused in the complaint (Ex.P1). No explanation was
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given by the prosecution in this regard; rather the presence of
the appellant/accused at the place when the complaint was
lodged becomes doubtful.
Apart from that, a charge under Section 354 of I.P.C. is
one, which is very easy to make, and is very difficult to prove.
A careful approach has to be adopted by the Court while
dealing with a case alleging outraging the modesty of a woman.
The essential ingredients of the offence under Section 354 of
I.P.C. are that (1) the person assaulted must be a woman; (2)
that the accused must have used criminal force on her; and (3)
that the criminal force must have been used on the woman
intending thereby to outrage her modesty.
In the instant case, the prosecution neither recorded the
statements of any of the female devotees nor cited them as
witnesses and the prosecution failed to examine Mallesham
(L.W.2), who brought the accused before P.W.1, stating that the
accused misbehaved with the female devotees. Since the
prosecution failed to examine any of the victims and the alleged
eyewitnesses, who were examined as P.Ws.2 and 4, did not
support the case of the prosecution, there is nothing to prove the
ingredients of offence under Section 354 of I.P.C. against the
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appellant/accused and hence, the appellant/accused is entitled
for acquittal on this score also.
For the aforesaid reasons, I am of the view that the
prosecution miserably failed to adduce any evidence to prove
that the accused had committed an offence punishable under
Section 354 of I.P.C. beyond all reasonable doubt and the
appellant/accused is entitled for acquittal.
In the result, the Criminal Appeal is allowed. The
conviction and sentence recorded against the appellant/accused
in the judgment, dated 11.02.2011 passed in S.C.No.288 of 2010
on the file of the II-Additional Metropolitan Sessions Judge,
Hyderabad, for the offence punishable under Section 354 of
I.P.C., are set aside and the appellant/accused is acquitted of the
said charge. The bail bonds of the appellant/accused are hereby
cancelled and his sureties are discharged. The fine amount, if
any, paid by the appellant/accused shall be refunded to him.
JUSTICE G.SRI DEVI
07-02-2020
Gsn