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Judgment
Anil L. Pansare, J
Heard. Admit. By consent of the learned Counsel for both sides, matter is taken up for final hearing at admission stage.
The Applicant/original Accused has questioned the legality, correctness and propriety of the Judgment and order dated 5/8/2023 passed by the learned Additional Sessions Judge, Wardha in Criminal Appeal No.16/2019 as also the Judgment and order dated 25/2/2019 passed by the learned Judicial Magistrate First Class, Pulgaon in Regular Criminal Case No.30/2016.
The Applicant has been convicted for the offence punishable under Section 354 of Indian Penal Code (In short, ‘IPC’) and sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs. 5000/-. He has been also convicted for the offence punishable under Section 354-A (1) (ii) of IPC and sentenced to suffer Rigorous Imprisonment for five months and to pay a fine of Rs. 2500/-. He has been also convicted for the offence punishable under Section 354-D (1) (ii) of IPC and sentenced to suffer Rigorous Imprisonment for five months and to pay a fine of Rs. 2000/-. He has been further convicted for the offence punishable under Section 341 of IPC and sentenced to suffer Simple Imprisonment for one month and to pay a fine of Rs. 500/-.
Having heard both the sides and having gone through the evidence, impugned Judgment and the other material placed before me, the question that arises is whether the acts done by the Applicant would attract the ingredients of the provisions of Indian Penal Code under which he has been convicted.
Briefly stated, the case of the prosecution is that on 17/11/2015 near Kelapur Bus Stop the Applicant assaulted and used criminal force to the Informant by holding her hand, pulling her towards himself with intent to outrage her modesty. It is further alleged that the Applicant has demanded/requested for sexual favours from the Informant and in doing so, has followed her and made an attempt to contact her to foster personal interaction repeatedly, despite a clear indication of disinterest by the Informant.
The prosecution has examined PW-2/Informant. She has deposed in examination-in-chief that on 17/11/2015 at 5.00 p.m. she alighted at Kelapur Bus Stop. The Applicant was present at the Bus Stop. She ignored him and proceeded to walk towards her village. The Applicant followed her on motorcycle and intercepted her. He held her hand, pulled her and asked why does she not talk to him and said that he intends to have friendship with her. She gave jerk to the Applicant’s hand and proceeded further. The Applicant followed her again and threatened her of beating, if she does not speak with him. The Applicant has then abused her.
In the cross-examination, it is elicited that the Applicant and PW-2 used to talk to each other on mobile phone. She has further admitted that her relative namely, Sachin Nagrale was aware of the fact that PW-2 used to speak with the Applicant as a friend. She has further deposed that when the Applicant caught hold of her hand, he said that he like and love her. She has also admitted that the Applicant on phone once said to her that he like her. She then deposed that they used to exchange messages on phone.
The above evidence would clearly show that the Applicant and PW-2 were friends. The evidence further indicates that the Applicant had feelings for PW-2 and had expressed his feeling on phone. PW-2 appears to have not responded to the Applicant’s proposal. Nonetheless, she continued exchanging messages with the Applicant. Ultimately, the Applicant approached her, caught her hand and pulled her and asked her as to why does she not speak with him and further said that he want to have friendship with her. PW-2 did not respond, and therefore, the Applicant has threatened her of beating and also abused her. This act, to my mind, will not attract ingredients of Sections 354 or 354-A (1)(ii) or 354-D(1)(ii) or 341 of IPC.
As regards Section 354 of IPC, the Hon’ble Supreme Court in the case of State of Punjab V/s Major Singh, AIR 1967 Supreme Court 63 has held that, essential ingredients of the offence punishable under Section 354 Indian Penal Code are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. The Supreme Court further held that the expression “outrage to female modesty” is no where defined. The Court noted that the essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter.
Thus, the most crucial element will be the intention of the person who uses criminal force to any woman and to gather the intention, one will have to consider the act as a whole along with the background that resulted into the alleged act. In the present case, the evidence is writ large on the point that Applicant and PW-2 were friends and have exchanged messages. The evidence further indicates that the Applicant was madly interested in PW-2 but did not get desired response from her, and therefore, on the date of incident followed her and caught hold of her hand and pulled her towards him and questioned as to why is she not talking with him and said that he intends to have friendship with her. PW-2 has not stated that the Applicant has touched her inappropriately. Thus, the reason for catching hold of hand and pulling her towards himself is that the Applicant has, in a way, proposed PW-2, may be in an offensive manner. This act by itself cannot be said to be an act to outrage the modesty of PW-2. In other words, the reason, which is relatable to the intention, is to express Applicant’s feelings for PW-2. Merely because the expression was offensive, will not convert the intention to propose into intention to outrage her modesty. In the circumstances, the conviction of the Applicant under Section 354 of IPC will be not sustainable.
As regards, the ingredients of Section 354-A (1)(ii), the requirement is that a person/accused of the said offence, must demand or request for sexual favours. In the present case, the act alleged does not, in any way, indicate that the Applicant uttered a single word demanding or requesting PW-2 for sexual favours. The conviction under Section 354-A(1) (ii) will, therefore, be also not sustainable.
Then comes the conviction under Section 354-D(1)(ii) of IPC, which provides that any man who monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking.
The learned APP failed to point out from the entire record that the Applicant has monitored the use by PW-2 of the internet, email or any other form of electronic communication. What has been said in the evidence is that, the Applicant and PW-2 used to talk to each other on mobile phone and used to exchange message. This act, by no stretch of imagination, would attract the provisions under Section 354-D(1)(ii) of IPC. The conviction thereunder, therefore, will be not sustainable.
Lastly, the Applicant has been convicted for the offence punishable under Section 341 of Indian Penal Code which provides for punishment for wrongful restraint, which has been defined under Section 339 of Indian Penal Code. It provides that, whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
As could be seen, to attract the ingredients of wrongful restraint, one must voluntarily obstruct a person to prevent him/her from proceeding in any direction. The obstruction, therefore, should be such that the person so obstructing should intent to not permit the obstructed person to proceed in a direction which he/she has right to proceed. The obstruction should be such that would reveal the intention of the obstructor to prevent a person proceeding in a particular direction. The act should show that the object and purpose of the act is to prevent obstructed person to proceed in a direction. In other words, the prime object must be to obstruct a person and not the consequence of the prime act. For illustration, if A intercepts B, who is proceeding in one direction, and makes inquiry as regards address of a person. The prime intention here is to make inquiry but the consequence is that B was prevented from proceeding further. The length of obstruction may also be relevant to gather the intention. If the offender has prevented the person obstructed from further movement for substantial period, there will be every reason to believe that the obstructor has prevented the person from proceeding in a particular direction. In the present case, the obstruction is for a very short duration. Put altogether, the act under question cannot be said to be an obstruction to a person.
In the present case, the obstruction is for the purpose of expressing feeling and not to prevent PW-2 to proceed in a particular direction. In other words, the intention was not to obstruct PW-2 to proceed by walk to her village but was outcome of expressing Applicant’s feeling towards PW-2. The conviction under Section 341 of IPC will be also not sustainable.
The courts below failed to notice that the case of prosecution, even if accepted on its face value, will not attract ingredients of the offences for which the Applicant has been convicted. The judgments rendered by both the courts below having not considered the provisions of law, are liable to be quashed and set aside. Hence, the following order.
ORDER
Criminal Revision Application is allowed.
The Judgment and order dated 5/8/2023 passed by the learned Additional Sessions Judge, Wardha in Criminal Appeal No.16/2019 as also the Judgment and order dated 25/2/2019 passed by the learned Judicial Magistrate First Class, Pulgaon in Regular Criminal Case No.30/2016 are hereby quashed and set aside.
The Applicant – Aryan @ Ravindra Kashinath Todkar is acquitted for the offences punishable under Section 354, 354-A(1)(ii), 354-D(1)(ii) and 341 of Indian Penal Code.
The Applicant be set at liberty, if not required in any other case. Criminal Revision Application is disposed of accordingly.
Since the present Criminal Revision Application is disposed of, pending Criminal Application (APPR) No. 333/2023 for suspension of sentence does not survive. The same stands disposed of accordingly.