N U Lokesh Vs the State of Karnataka

THE STATE OF KARNATAKA, BY THE POLICE OF SHANIVARSANTHE POLICE, KODAGU DISTRICT-571235, REP. BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU - 560 001

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…RESPONDENT

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(BY SRI CHANNAPPA ERAPPA, HCGP)

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 25.02.2014 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, SOMWARPET IN C.C.NO.639/2011 AND CONFIRMED BY THE LEARNED PRINCIPAL SESSIONS JUDGE, KODAGU AT MADIKERI BY THE JUDGMENT AND ORDER DATED 21.07.2018 CRL.A.NO.17/2014 FOR THE OFFENCE P/U/S 354 OF IPC AND ACQUIT THE PETITIONER/ACCUSED.

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NC: 2025:KHC:30809 CRL.RP No. 957 of 2018

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HC-KAR

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL ORDER

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This petition is filed assailing the order convicting the petitioner for an offence under Section 354 Indian Penal Code. The appeal filed by the accused before the Sessions Court is also dismissed confirming the conviction.

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Accused is sentenced to undergo rigorous imprisonment for six months, in addition, fine of Rs.2,000/- is imposed, and in default, sentence of simple imprisonment of one month is also imposed.

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The facts alleged are as under:

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A criminal case came to be registered against the petitioner based on the complaint filed by one of the coworkers in the bank where the petitioner/accused is working. The complaint came to be lodged on 07.05.2011 before the jurisdictional police. The police after

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investigation have filed a charge sheet for alleged offence under Section 354 IPC.

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Petitioner was an accountant in Sahakara Sangha Niyamita, Handli at the time of alleged incident. It is alleged that on 03.05.2011 during lunch hour, the petitioner allegedly hugged the victim from behind and asked for sexual favour and thereby, outraged the modesty of the complainant and committed an offence publishable under Section 354 IPC.

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It is also alleged that on 06.05.2011 petitioner went to the house of the victim and sought sexual favour to which the petitioner resisted and raised alarm.

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Accused did not plead guilty and was tried. After recording evidence and considering the contentions of the parties, the Trial Court sentenced the accused as recorded above. Appellate Court dismissed the appeal. However, Appellate Court has recorded a finding that the incident dated 03.05.2011 said to have taken place in the

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office has not occurred. First Appellate Court has concluded that the incident dated 06.05.2011 is established and confirmed the conviction and sentence.

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Learned Senior counsel appearing for the petitioner would contend that the Appellate Court has recorded a categorical finding that the alleged incident dated 03.05.2011 where the petitioner is alleged to have hugged the victim cannot be believed. It is his further submission that the State has not questioned the said finding which it was required to do under Section 397 of Cr.P.C. Thus, he would contend that, the only question that is required to be considered is whether the incident which is said to have taken place on 06.05.2011 attracts Section 354 IPC.

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Learned Senior counsel would also refer to the

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contents of the complaint and the complaint reads as under:

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HC-KAR

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DgÀPÀëPÀ ¤jÃPÀëPÀgÀÄ, DgÀPÀëPÀ oÁuÉ, ±À¤ªÁgÀ ¸ÀAvÉ,

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¬ÄAzÀ, VÃvÀ ºÉZï.JA. ªÉÊ¥ï D¥sï ªÀÄÄgÀÄUÉÃ±ïPÀÄªÀiÁgï, ºÀArè ¥ÁæxÀ«ÄPÀ PÀÈ¶ ¥ÀwÛ£À ¸ÀºÀPÁgÀ ¸ÀAWÀ ¤' ºÀArè,

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ªÀiÁ£ÀågÉÃ,

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«µÀAiÀÄ: PÀæªÀÄ PÉÊUÉÆ¼ÀÄîªÀ §UÉÎ

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ºÀAqÉè ¥ÁæxÀ«ÄPÀ PÀÈ¶ ¥ÀwÛ£À ¸ÀºÀPÁgÀ ¸ÀAWÀ ¤ E°è ¢éwÃAiÀÄ zÀeÉð UÀÄªÀiÁ¸ÀÛ¼ÁV PÁAiÀÄð ¤ªÀð»¸ÀÄwÛzÀÄÝ £À£ÀUÉ J£ï.AiÀÄÄ ¯ÉÆÃPÉ±ï (¯ÉQÌUÀgÀÄ) EªÀgÀÄ vÀÄA¨Á PÉlÖzÁV ªÀiÁvÁr ªÀiÁ£À¹PÀªÁV ºÁUÀÆ zÉÊ»PÀªÁV J¼ÉzÁr PÀbÉÃjAiÀÄ°èAiÉÄÃ mÁZÀðgï PÉÆnÖzÀÄÝ ¸ÀÄªÀiÁgÀÄ 4 wAUÀ½AzÀ ¯ÉÊAVPÀ QæAiÉÄUÁV mÁZÀðgï PÉÆqÀÄwÛzÁÝgÉ. EzÀjAzÀ £À£ÀUÉ PÀbÉÃjAiÀÄ°è PÉ®¸À ªÀiÁqÀ®Ä ¸ÁzÀå«®è ºÁUÀÆ ªÀÄ£ÉUÀÆ §AzÀÄ vÀÄZÀÑªÁV ªÀiÁvÁr ªÀiÁ£À¹PÀªÁV mÁZÀðgï PÉÆqÀÄwÛzÁÝgÉ. zÀAiÀÄ«lÄÖ EzÀgÀ §UÉÎ PÁ£ÀÆ£ÀÄ PÀæªÀÄ PÉÊUÉÆ¼Àî¨ÉÃPÉAzÀÄ ªÀÄvÀÄÛ gÀPÀëuÉ PÉÆqÀ¨ÉÃPÉAzÀÄ PÉÃ½PÉÆ¼ÀÄîvÉÛÃ£É.

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£ÀªÀÄ¸ÁÌgÀUÀ¼ÉÆA¢UÉ.

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¸ÀÜ¼À: ºÀArè ¢£ÁAPÀ: 07.05.11 EAw «zsÉÃAiÀÄ (VÃvÁ)

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¢£ÁAPÀ 7.5.2011 gÀAzÀÄ ªÀÄzÁåºÀß 2.30 UÉ oÁuÉAiÀÄ°è ¥ÀqÉzÀÄPÉÆAqÀÄ ªÉÆ.¸ÀA 65/2011 PÀ®A 354 L¦¹ ªÉÄÃgÉUÉ ¥ÀæPÀgÀt zÁR°¹PÉÆArgÀÄvÉÛÃ£É.

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He would also refer to Section 354 IPC and said

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provision reads as under:

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354. Assault or criminal force to woman with intent to outrage her modesty.—

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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 shall not be less than one year but which may extend to five years, and shall also be liable to fine.

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Learned Senior Counsel inviting the attention of

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the Court to the contents of the complaint and also to the evidence led before the Court, would urge that there is no use of any force by the petitioner, even according to the complaint or prosecution evidence which is placed before the Court. Since there is no evidence relating to assault and use of criminal force, Section 354 IPC is not attracted. To substantiate his contention, he would also refer to the judgment of this Court in Naresh Aneja vs State of U.P.

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and Anr .¹ The relevant portion at paragraphs 20 and 24 of the said judgment are as under:

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"20. A bare perusal of Section 354IPC reveals that for it to apply, the offence must be committed against a woman; criminal force must be applied against her; and such application of force must be with the intent to

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1 (2025)2 SCC 604

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outrage her modesty. [See : Raju Pandurang Mahale v. State of Maharashtra , (2004) 4 SCC 371 : 2004 SCC (Cri) 1259] ]

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24. It is well-settled that for mens rea to be established, something better than vague statements must be produced before the court. As evidenced by the annexures referred to above i.e. the FIR, the preliminary investigation report as also the concluding portion of the charge-sheet, no direct allegation nor any evidence in support thereof can be found attributing intent to the appellant. It cannot be said, then, that a case under Section 354 IPC is made out against the appellant".

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Learned Senior counsel would also submit that the domestic enquiry was held alleging the same misconduct and same charges were leveled against the petitioner and in the domestic enquiry, charges have been not proved and the petitioner is exonerated. He would also submit that the degree of proof required in domestic enquiry is much less than the degree of proof required in a criminal case and referring to the judgment of the Apex Court in Ashoo Surendranath Tewari vs Deputy Superintendent of Police, EOW, CBI AND ANR² urged

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2 (2020)9 SCC 636

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that in case a person is exonerated in a domestic enquiry,

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then for the same offence based on the same set of allegations, the accused cannot be convicted.

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Learned High Court Government Pleader on the other hand would submit that the prosecution has led evidence and has placed the materials before the Court to show that the accused has committed the offence as he approached the complainant seeking sexual favour and he has assaulted the victim by pulling the victim.

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This Court has considered the contentions raised at the bar and perused the records.

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The allegations relating to the incident said to have taken place on 03.05.2011 is held to be not established by the Appellate Court. The Appellate Court has recorded a finding that the incident alleged to have taken place on 03.05.2011 cannot be believed. This finding has attained finality as the State has not questioned the said finding.

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HC-KAR

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The only question that is required to be considered is, “Whether the offence under Section 354 IPC is proved in relation to the incident said to have taken place on 06.05.2011?”

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After going through the contents of the complaint and the evidence led before the Court, it is explicit that there is no allegation of use of force or there is no allegation of assault by the petitioner on the victim. This being the position the ingredients of Section 354 IPC are not attracted and both the Trial Court and the Appellate Court have committed an error in coming to the conclusion that the accused has committed an offence under Section 354 IPC.

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On considering the contents of the complaint

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and the evidence placed before the Court and after going through the ratio laid down by the Hon’ble Apex Court, the Judgment in Naresh Aneja supra , this Court is of the view ratio in Naresh Aneja supra applies to the case, and the prosecution has failed to establish the assault or

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the use of criminal force. This aspect of the matter has been completely overlooked by the Trial Court as well as the Appellate Court.

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It is also noticed that the disciplinary authority has recorded a finding that the charges against the petitioner are not established and he is exonerated in the disciplinary proceedings. However, considering the fact that the petitioner is convicted by the Criminal Court, the disciplinary authority has passed further orders in favour of the delinquent employee and it is stated that against the said order, an appeal is pending before the Karnataka Appellate Tribunal.

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It is noticed that the charge in the domestic enquiry and the charge present in the criminal proceeding are one and the same, and it is based on the same set of facts. The degree of proof required under domestic enquiry is lesser compared to the standard of proof in a criminal proceeding under IPC. This being the position, since the petitioner is exonerated in the domestic enquiry, the

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petitioner cannot be convicted in the light of the same set of allegations leveled against him.

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Learned High Court Government Pleader would

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submit that PW.9 – the husband of the victim has supported the case of prosecution and has testified about the incident.

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This Court has considered the evidence of the husband of the victim. The statement itself would clearly indicate that it is a hearsay evidence. Moreover, the complainant herself has not stated that the husband was present when the accused allegedly entered the house of the victim on 06.05.2011.

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For the reasons recorded the petitioner is to be acquitted and impugned judgments are to be set aside.

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Hence the following:

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ORDER

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(i) Criminal Revision Petition is allowed .

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(ii) The impugned judgment dated 25.02.2014 passed by the JMFC, Somwarpet in C.C.No.639/2011 and the judgment dated 21.07.2018 in Criminal appeal No.17/2014 passed by the Learned Sessions Judge, Kodagu at Madikeri are set-aside.

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