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Mohd. Omar vs The State Of A.P. on 7 February, 2020

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
3

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?

4

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-
5

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
7

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

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