The prosecution must establish all essential elements of an alleged offence under Section 354 IPC, including the use of criminal force, which was not proven in this case.

ORDER :

ANANT RAMANATH HEGDE, J.

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.

2. 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.

3. The facts alleged are as under:

- A criminal case came to be registered against the petitioner based on the complaint filed by one of the co- workers 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 investigation have filed a charge sheet for alleged offence under Section 354 IPC.

4. 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.

5. 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.

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

7. 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.

8. Learned Senior counsel would also refer to the contents of the complaint and the complaint reads as under:

9. He would also refer to Section 354 IPC and said provision reads as under:

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

10. Learned Senior Counsel inviting the attention of 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 Ane