Appeal against conviction and sentence for offences under Sections 342 and 354 IPC. High Court confirmed conviction but reduced rigid imprisonment to fine with default term due to age of offence and appellant's circumstances.
Sentence for Section 354 offence modified to fine of Rs. 50,000/- with one month simple imprisonment in default.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 1164 OF 2011
BETWEEN:
SRI. SUNIL KUMAR BEHARA, S/O VIJAYA SARADHI AGE: 30 YEARS, R/O FLAT NO. 303, "B" BLOCK NANDISH PARK APARTMENTS MATHIKERE, BANGALORE-560 054.
…APPELLANT
(BY SRI RAVI.B.NAIK, SENIOR COUNSEL FOR SRI.VIJETHA.R.NAIK, ADVOCATE)
AND:
Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA
THE STATE OF KARNATAKA, (THROUGH CUBBON PARK POLICE) REPRESENTED BY ITS STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE.
…RESPONDENT
(BY SRI. RENUKARADHYA.R.D, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:3.11.11 PASSED BY THE P.O., FTC-V, BANGALORE IN S.C.NO.97/10 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 342 AND 354 OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO TO PAY A FINE OF RS.1,000/- AND IN DEFAULT TO UNDERGO S.I. FOR 10 DAYS FOR THE OFFENCE P/U/S 342 OF IPC. AND THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR SIX MONTHS AND TO PAY A FINE OF RS.5,000/- AND IN DEFAULT TO UNDERGO S.I. FOR ONE MONTH. FOR THE OFFENCE P/U/S 354 OF IPC.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed against the judgment of conviction and order of sentence dated 03.11.2011 passed in S.C. No.97/2010 by the Presiding Officer, Fast Track Court-V, Bengaluru City, convicting the appellant/accused for the offences punishable under Sections 342 and 354 of
IPC, sentencing to undergo simple imprisonment for 6 months and to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for 1 month for the offence punishable under Section 354 of IPC and to pay a fine of Rs.1,000/- and in default to undergo simple imprisonment for 10 days for the offence punishable under Section 342 of IPC.
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On 20.03.2009 at about 10:45 a.m. the
appellant/accused is stated to have taken PW.5(CW.1) in his car bearing Regn.No.KA-03-MH-4845 for seminar at Vasantha Nagar at Francis Alliance and from there he induced PW.5 and took her to his apartment No.303 situated at Nandish Park, Mutyalanagar and there he showed PW.5 pornographic film on his laptop and induced her for sexual intercourse and he also had an intention of having bodily contact with her and he misbehaved with her and he dragged her and tried to kiss and hug her and wrongfully restrained her. PW.5 filed a complaint on 02.04.2009 and Cubbon Park Police registered the same in Crime No.102/2009 for offences punishable under Sections 342, 354 and 366 of IPC. After investigation charge sheet came to be filed for the said offences against the appellant/accused. As one of the offence is triable by Sessions Court, the case came to be committed to the Sessions Court. The Sessions Court framed charges
against the appellant/accused for the offences punishable under Sections 342, 354 and 366 of IPC. The prosecution examined 7 witnesses as PWs.1 to PW.7 and got marked 6 documents as Exs.P1 to P6 and one property as MO.1. The accused has examined one witness on his behalf as DW.1 and got marked 7 documents as Exs.D1 to D7. The statement of the accused has been recorded as required under Section 313 of Cr.P.C.
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5. Learned senior counsel for the appellant would
contend that, the alleged date of offence is 20.03.2009 and the complaint came to be filed on 02.04.2009 and there is a delay of more than 12 days in filing the complaint. The appellant/accused has refused to marry the complainant-PW.5 as she is addicted to alcohol and attending parties and consuming alcohol. The complainant-PW.5 has requested the appellant/accused to marry her and as appellant/accused refused, she lodged a false complaint against him. There is no material on record to show that, the laptop-MO.1 seized at the instance of the appellant/accused did contain any pornographic video and it has been played on 20.03.2009. The evidence of DW.1 clearly establishes that, the said laptop has not been opened on 20.03.2009. PW.5 sent E- mail on 21.03.2009 to PW.2 and he after enquiry sent complaint-Ex.D2 to Police on 25.03.2009, but, as per the evidence of PW.7-Investigation Officer, no such complaint has been received by them. The copy of E-mail which has
been sent by PW.5 dated 21.03.2009 is at Ex.D1. The photos Exs.D4 to D6 reveal that the complainant-PW.5 has participated in the party where members consumed alcohol. The house of the appellant/accused is in apartment building consisting of nearly 85 flats, if any incident has taken place the neighbors ought to have come
to know about the same. Even though PWs.3, 4 and 6 came to know about the incident through PW.5 on the date of incident when they met PW.5 in M.G. Road they also did not choose to file any complaint. The said aspect goes to show that, a false complaint has been registered against the appellant/accused. Even though laptop has been seized, the prosecution has not made any efforts to get it played to establish that it contained pornographic video. The Investigation Officer-PW.7 who seized the laptop under mahazar Ex.P3 did not speak about the contents of the laptop. The evidence of PW.5complainant/victim is not reliable as she had grudge against the appellant/accused, as he refused her request to marry her. Even PW.2-Human Resource Manager in
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Altron Technologies Private Limited, where this complainant and appellant/accused were working even after receiving E-mail dated 21.03.2009 has not chosen to file a complaint. Learned senior counsel submitted that, the offence punishable under Section 354 of IPC is follow up of offence punishable under Section 366 of IPC. The appellant/accused has been acquitted for offence punishable under Section 366 of IPC and therefore, he requires to be acquitted for offence punishable under Section 354 of IPC also.
reliance on the decision of Apex Court in the case of Rajendra @ Raju vs. State of Maharashtra reported in (2002) 7 SCC 3721 . In the said case, the Hon'ble Apex Court has held that, in order to constitute an offence of abduction a person must be carried off illegally by force or deception and these two ingredients have not been established in the case and further held that, the appellant/accused asking PW.1 to have sexual intercourse
with her in the presence of her 11 years old child and he allowed her to easily slip out of his hands from the lodge is also doubtful.
the appellant/accused is working in a different company, his father is on dialysis, mother is heart patient, his wife is not having any siblings and this appellant has to take care of his in-laws. After lapse of 14 long years, it is harsh to punish this appellant/accused sentencing him to undergo imprisonment. He further argued that, if the Court comes to the conclusion that, the appellant has committed the offences punishable under Sections 342 and 354 of IPC, he may be sentenced to fine alone.
seeking her help as she is under trouble in the house of the accused/appellant. PW.4 inturn intimated the same to PW.3 and PW.6. PW.5 sent an E-mail dated 21.03.2009 to PW.2 and the contents of that E-mail corroborates the averments made in the complaint - Ex.P2. The delay in filing the complaint has been properly explained by the prosecution. The appellant/accused failed to establish that due to grudge, PW.5 filed a complaint against the appellant/accused as he refused to marry her. The appellant/accused has held the victim-PW.5 and tried to kiss and hug her. The documents marked as Exs.D1 to D3 are consistent with complaint-Ex.P2 and evidence of PW.5. The victim was working under the accused and there is no question of filing any frivolous complaint against the accused. PW.5 has made a phone call immediately to PW.4 calling her to help her. Considering all the evidence on record, the Trial Court has rightly convicted the appellant/accused for offences punishable under Sections 342 and 354 of IPC.
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arguments advanced, the following points arise for my consideration:-
i. Whether the Trail Court erred in convicting the appellant/accused for the offences punishable under Sections 342 and 354 of IPC?
ii. Whether sentence imposed on the appellant/accused for offence punishable under Section 354 of IPC requires to be modified and reduced to fine only?
When she was sitting in the living room, he gave laptop to her to pass time and subsequently, he came and sat by her side and showed some photos of foreign trip and opened a pornographic movie on his laptop. Victim switched off the same, but the accused in spite of her request did not stop it. She further deposed that, the appellant/accused tried forcibly kissing and hugging her, he dragged her to his bed and tried to physically assault, some how she managed to push him away and ran into bathroom and locked inside. While in the bathroom she made a phone call to PW.4 (CW.7) and explained her the incident and PW.4 gave the said phone to PW.3 (CW.8) and she explained the same to PW.3. After some time, accused requested to her that, he has to attend the conference call in office at 4:00 p.m. and she came out of the bathroom and tried to run away towards front door but it was locked, any how, she got the door opened and ran to the road. As she left her purse in the car of the accused, at her direction, accused brought the same and gave it to her and she went in an Auto rickshaw to M.G.
Road where she met PWs.3, 4 and 6 and told them about the incident. The above evidence of PW.5 is corroborated by the evidence of PWs.3, 4 and 6, for having received phone call of PW.5 and meeting her at M.G. Road.
addicted to alcohol and she was attending the parties and consuming alcohol. The suggestions in that regard have been denied by PWs.2 to 6. Nothing has been elicited in cross examination of PWs.2 to 6 to establish the said defence. Exs.D4 to 6 are the photographs, produced to show that PW.5 has participated in the party along with other colleagues and holding alcohol glass. The said photographs do not establish the entire defence of the appellant/accused that victim proposed the accused to marry her and he refused as she was addicted to alcohol.
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rightly held that the appellant/accused has committed
offences punishable under Sections 342 and 354 of IPC.
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laws and it will be harsh for him to undergo simple imprisonment for the incident which has taken place 14 long years ago.
13 of 2013 reads as under:-
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.
ORDER
ii. The conviction of the appellant/accused for offences punishable under Sections 342 and 354 of IPC is confirmed. The sentence imposed for offence punishable under Section 342 of IPC is also confirmed.
in default of payment of fine to undergo simple imprisonment for 1 month for offence punishable under Section 354 of IPC.
Sd/JUDGE
HKV
List No.: 1 Sl No.: 15
2 issues framed by the court
Whether the trial court erred in convicting the appellant for offences under Sections 342 and 354 IPC?
Whether the sentence imposed for the offence under Section 354 IPC requires modification and reduction to fine only?
Colour shows how this judgement treated each authority
Rajendra @ Raju vs. State of MaharashtraDistinguished¶42
(2002) 7 SCC 3721 · Who else cites this
3 provisions across 2 enactments
Sri. Sunil Kumar Behara
The State of Karnataka
Shivashankar Amannavar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
