Allowed

State of Karnataka v. Dastgeer Gous Pheersab

Karnataka HC15 Dec 2021CRL.A/100069/2018

Case brief

AI extract

What is this about?

This criminal appeal challenges the acquittal of an accused for sexual harassment under Section 354A of IPC. The High Court found the lower court's findings on identity perverse. The Court held the act was sexual harassment, not POCSO sexual assault, and convicted the appellant, sentencing him for the period already in custody.

What did the court decide?

The acquittal set aside. Accused convicted under Section 354A IPC and sentenced to imprisonment for the period he was in judicial custody.

State of Karnataka Vs Dastgeer Gous Pheersab — Child Sexual Offences (POCSO) | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 15^TH DAY OF DECEMBER, 2021

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PRESENT

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THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ

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AND

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THE HON’BLE MS.JUSTICE J.M. KHAZI

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CRIMINAL APPEAL NO.100069/2018

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BETWEEN

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STATE OF KARNATAKA, BY BHATKAL RURAL POLICE STATION, UTTARA KANNADA DISTRICT, KARWAR, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

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...APPELLANT

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(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)

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AND

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DASTGEER GOUS PHEERSAB, AGE: 35 YEARS, R/O. GULME, BELALKHAND, BHATKAL, DIST. KARWAR.

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…RESPONDENT

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(BY SRI.VIDYASHANKAR G. DALAWAI, ADV.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378(1) AND (3) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 01.08.2017 PASSED BY THE SPECIAL JUDGE, UTTARA KANNADA, KARWAR IN SPECIAL CASE NO.26/2013 AND ETC.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 07.12.2021 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the acquittal of respondent for the offences punishable under Section 354A of the Indian Penal Code, 1860 (hereinafter referred to as “IPC” for short) and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act” for short), the State has filed this appeal under Sections 378(1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.” for short).

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For the sake of convenience, the parties are referred to by their rank before the Trial Court.

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A charge sheet came to be filed against the accused alleging that on 08.07.2013 at 05:15 p.m. while prosecutrix was returning from School along with her two sisters and was proceeding towards her house, near Sodigadde Cross, accused sexually harassed her by trying

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to embrace her from behind with his hands. However, with utter shock, prosecutrix shouted for help and ran away along with her sisters and thereby accused committed the offences punishable under Section 354A of IPC and Section 8 of POCSO Act.

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Accused has pleaded not guilty and claimed to

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be tried.

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In support of the prosecution case, 8 witnesses are examined as PWs.1 to 8 and Exs.P1 to 9 are marked.

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During the course of his statement under Section 313 of Cr.P.C., accused has denied the incriminating evidence led on the prosecution side. He has not chosen to lead evidence on his behalf.

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After hearing the arguments of both sides, vide the impugned judgment and order, the learned Special Judge has acquitted the accused on the ground that the prosecution has failed to prove the charges levelled against the accused beyond reasonable doubt, including his identity.

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During the course of his arguments, the learned Additional State Public Prosecutor submits that the impugned judgment and order of acquittal is contrary to law, facts of the case and evidence on record. PW.2 is the victim girl. PW.3 is her sister. Their evidence prove the fact that on 08.07.2013 when they along with their another sister were returning from School, accused caught hold of the shoulder of the prosecutrix and tried to grapple her. Both PWs.2 and 3 have identified him. The evidence of PW.5 corroborate with their testimony. The evidence of PWs.7 and 8 prove the investigation. Without proper application of mind, the learned Special Judge has discarded their evidence and as such, his findings are perverse and not sustainable in law.

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He would further submit that without appreciating the testimony of PWs.3 and 5, who are the eye witnesses, which corroborate with the evidence of the prosecutrix, the learned Special Judge has held that the identity of the accused is not established. During the course of his statement under Section 313 of Cr.P.C., the accused has not disputed his presence at the place and

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time of the incident. The prosecution witnesses have no illwill or motive to falsely implicate the accused, who is a total stranger to them. The accused has not disputed the medical evidence and also the evidence regarding the age of the prosecutrix and prays to allow the appeal and convict and sentence the accused.

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On the other hand, the learned counsel representing the accused submits that after going through the oral and documentary evidence placed on record, the learned Special Judge has come to a correct conclusion that the charges levelled against the accused are not proved including his identity and accordingly acquitted him and the impugned judgment and order does not call for interference. He further submitted that having regard to the fact that accused is acquitted, presumption of his innocence is fortified and prays to dismiss the appeal.

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He would further submit that in case this Court comes to the conclusion that the evidence laid on behalf of the prosecution is reliable and could be a basis for convicting the accused, the provisions of Section 8 of

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POCSO Act are not attracted and at the most provisions of Section 354A may be pressed into service, in which event he may be sentenced under go imprisonment for the period during which he was in judicial custody.

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In support of his arguments regarding the presumption of innocence of the accused, the learned counsel for the accused has relied upon the decision in the case of State of H.P. Vs. Puneet Goyal passed in Criminal Appeal No.346/2007.

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We have heard elaborate arguments of both sides and perused the records.

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It is the definite case of the prosecution that when PW.2, the prosecutrix was returning from School along with her two sisters, accused came from behind them and tried to grab her and at the time he put his arms across her shoulder, she shouted and all the three girls started running. Before removing his hands, PW.2, prosecutrix had glimpse of the accused. All the three girls came running to the house of PW.5 Ramakrishna, which is situated by the side of the road and informed him about

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the incident. At that time, CW.7 Hanumantha Naik was also present in the house of PW.5 Ramakrishna. Since the incident had taken place within few minutes of these girls informing PW.5 Ramakrishna, all of them went to the place of occurrence and found accused standing below the railway bridge which is at a short distance from the place of occurrence. When they tried to apprehend him, he tried to run and in the process fell down and sustained minor injuries. He was brought to the house of PW.5 Ramakrishna. The father of the prosecutrix was informed. Thereafter, he has filed the complaint.

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The evidence of PWs.2 and 3 prove the fact of accused trying to grab PW.2 and all three sisters running away to the house of PW.5 Ramakrishna. During her crossexamination PW.2 has stated that when accused tried to hold her, she looked at him for one time. He had mustache but was not sporting beard. He was not known to her. The evidence of PWs.2 and 3 reveal that after making unsuccessful attempt to grab PW.2, he walked towards the channel. Ex.P9 is the sketch of the scene of occurrence. It reveals that the incident has taken place near the bridge

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under which the railway line passes and the accused was apprehended below the said railway bridge.

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The evidence of PW.5 Ramakrishna supports and corroborates with the testimony of PWs.2 and 3. He is a Tailor by profession. His evidence reveals that CW.7 Hanumantha Naik who was present when the girls came and informed about the incident is not his relative, but he is a customer of PW.5 Ramakrishna. The evidence of this witness reveal that after coming to know about the incident, he, CW.7 Hanumantha Naik along with the children went to the place where the incident had taken place and found the accused standing by the railway bridge and on being pointed out by the children, he and CW.7 Hanumantha Naik tried to catch him and while trying to escape, accused fell down and sustained some minor injuries. He was brought to the house of PW.5 Ramakrishna. PW.5 has also deposed that he informed the Police as well as PW.1 Jattappa Naik, the father of the prosecutrix who immediately came to his house. PW.1 along with the victim girl went to the Police Station to lodge the complaint while they detained the accused.

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During his cross-examination, PW.5 has specifically stated that they never manhandled the accused, but on the other hand, he sustained injury while trying to escape and fell down. The fact that on that day, accused was apprehended by PW.5 Ramakrishna and CW.7 Hanumantha Naik and in the process he sustained injury is not disputed by the defence. PW.5 is questioned as to whether the incident was brought to the notice of his wife, he has replied that since they were in a hurry to go to the spot in order to see whether they could find the person, they did not choose to inform the incident to his wife.

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PW.1 Jattappa Naik is the father of the victim girl. After coming to know about the incident, he accompanied the victim girl to the Police Station where she has filed the complaint. His evidence reveals that on 08.07.2013 at about 05:15 p.m. he received a call from PW.5 Ramakrishna through the cell phone of CW.7 Hanumantha Naik. Immediately he went to the house of Ramakrishna and found the accused and came to know about the incident through his daughter. He sent back his other two daughters home and along with PW.2 victim girl,

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he went to the Police Station and the victim girl filed the complaint as per Ex.P3. He has specifically stated that the complaint is in the hand writing of the victim girl.

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As already discussed, accused was not known to any of the prosecution witnesses. Absolutely there was no ill-will or enmity between them to falsely implicate the accused. The evidence of PWs.1, 2, 3 and 5 prove the allegations against the accused that on the date of incident, he tried to grab her from behind. Even though PW.3 has not stated that after PW.2 victim girl shouted about someone grabbing her, she did not see the face of the accused, PW.2 has clearly stated that while pushing away the hands of accused, she had a glimpse of him and he had mustache, but was not sporting beard. The evidence of PWs.2, 3 and 5 establishes the fact that within few minutes of the incident, they went to the spot and found accused standing near the railway bridge and on seeing them when he started running, they apprehended and brought him to the house of PW.5. It is pertinent to note that the place of occurrence is surrounded by cashew plantation. Consequently, the movement of people was

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very scarce. Moreover, when accused tried to escape, he fell down and sustained minor injuries and therefore PW.5 and CW.7 Hanumantha Naik were able to apprehend him. Consequently, both PWs.2 and 3 were able to observe him. After coming to know about the incident, PW.1 Jattappa Naik, the father of the victim girl came to the house of PW.5 Ramakrishna and seen the accused. Therefore, PWs.1, 2, 3 and 5 were able to identify the accused before the Court. Consequently, there was no need for conducting Test Identification Parade of the accused. The testimony of PWs.1, 2, 3 and 5 identifying the accused is reliable. The accused has not taken up a defence that the offence in question was committed by someone else and by mistake he has been detained by PW.5 Ramakrishna and CW.7 Hanumantha Naik.

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PW.6 Dr.Savita Kamat has examined PW.2 victim girl and issued wound certificate at Ex.P4. Her evidence coupled with Ex.P4 reveal that PW.2 victim girl was in a shock and complained of body pain. During her cross-examination, PW.6 has stated that she did not examine the genital of the prosecutrix as the Police

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requisition did not ask for it. Even though charge sheet is filed for the offence punishable under Section 8 of POCSO Act, the allegation against the accused is that he tried to grab the prosecutrix from behind while she was returning from school. Having regard to the nature of the allegation, the examination of her genital was not required. Virtually the testimony of PW.6 has remained unchallenged.

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PW.7 Mamata Rama Naik is the In-charge Head Mistress. Through her, the date of birth certificate of the prosecutrix is marked as Ex.P6 and the extract of Attendance Register for the month of July 2013 is marked as Ex.P7. The relevant entry dated 08.07.2013 is marked as Ex.P7(a). Her evidence proves the fact that as on the date of the incident, the prosecutrix was aged 12 years and on that day she attended the school. The testimony of this witness is not disputed by the accused.

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PW.8 Naveenchandra Jogi has conducted the investigation and filed the charge sheet. He has spoken to about it. His evidence including his testimony during crossexamination that accused sustained minor injuries when

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people tried to apprehend him is not disputed by the accused except making a general suggestion that accused has been falsely implicated.

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Thus, through the oral and documentary evidence placed on record, the prosecution has proved that on 08.07.2013, at about 05:15 p.m. while the prosecutrix along with her two sisters was returning from School, accused tried to grab her from behind by placing his hands around her shoulders. The evidence of PWs.1 to 3 and 5 also prove the fact that within few minutes of the incident, accused was apprehended by PW.5 and CW.6 as identified by PWs.2 and 3. PW.1 has seen the accused in the house of PW.5. Consequently, the testimony of PWs.1 to 3 and 5 identifying the accused before the Court is admissible. Therefore, the findings of the Trial Court that the identity of the accused is not established are contrary to the evidence on record and as such, it is perverse and it calls for interference by this Court.

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In the charge sheet in addition to Section 354A of IPC, the provisions of Section 8 of POCSO Act, is

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pressed into service. Section 8 of POCSO Act prescribes punishment for sexual assault which is defined under Section 7 of the POCSO Act which reads as under:

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“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.”

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The bare perusal of this provision makes it evident that the allegations establish against the accused does not attract the provisions of Section 7 of the POCSO Act which is punishable under Section 8 of POCSO Act. Consequently, the accused is not liable for punishment under the said provision.

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However, Section 354A of IPC defines the term sexual harassment and prescribes punishment for it. It reads as under:

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“354A. Sexual harassment and

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punishment for sexual harassment.-(1)A man committing any of the following acts—

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(i) physical contact and advances involving unwelcome and explicit sexual overtures; or

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(ii) a demand or request for sexual favours; or

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(iii) showing pornography against the will of a woman; or

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(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.

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(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.

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(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.”

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The reading of this provision indicates that the allegations made and proved against the accused squarely comes into the ambit of sub clause (i) of sub section (1) of Section 354A of IPC.

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The punishment prescribed for the offence under sub clauses (i) to (iii) of sub Section (1) of Section 354A of IPC is rigorous imprisonment for a term which may extent to three years or with fine or with both.

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When once this Court comes to the conclusion that the findings of the Trial Court are perverse and it calls for interference, the next question would be to what punishment the accused is liable.

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As evident from the charges levelled against the accused and proved, accused tried to grapple the prosecutrix and fortunately for both the prosecutrix as well as the accused, he did not succeed in his attempt. Before he could lay his hands on her shoulders, the prosecutrix threw his hands away and ran. Immediately within few minutes of the incident, accused was apprehended and in his attempt to escape, he sustained some minor injuries.

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After his arrest, he was remanded to judicial custody. Before he could secure bail, he was in judicial custody for a period of 15 days i.e., from 09.07.2013 to 23.07.2013. Taking into consideration these aspects, we are of the considered opinion that looking to the gravity of the offence established against the accused, it is sufficient and adequate to sentence the accused for imprisonment for the period already in custody.

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It is relevant to note that the maximum punishment prescribed for the offence punishable under Section 354A of IPC is imprisonment for a period which may extend up to three years or with fine or both. Consequently, it comes under the category of warrant trial. In case of warrant trial, Section 248(2) of Cr.P.C. mandates that before imposing the punishment, the accused shall be heard on the question of sentence. In the present case, as we are of the considered opinion that imposing punishment of imprisonment for the period during which the accused was in judicial custody would meet the ends of justice, we hold that there is no need to

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hear the accused on the question of sentence. However,

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this shall not be treated as a precedent.

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In the result, we proceed to pass the following:

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ORDER

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Appeal filed by the State is allowed. The impugned judgment and order of acquittal dated 01.08.2017 in Special Case No.26/2013 on the file of the Special Judge, Uttara Kannada, Karwar is hereby set aside.

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Accused is convicted for the offence punishable under Section 354A of IPC. He is sentenced to undergo imprisonment for the period during which he was in judicial custody.

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Sd/JUDGE

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Sd/JUDGE

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Rsh

State of Karnataka v. Dastgeer Gous Pheersab

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Dastgeer Gous Pheersab

Case brief

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What did the court decide?

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