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MADHYA PRADESH HIGH COURT
Prem Narayan Singh, J.
Nitesh Patidar and Ors. – Appellants
versus
State of Madhya Pradesh and Ors. – Respondents
Criminal Appeal No.53 of 2022
Decided on 9.7.2024
Counsel for the Parties:
For the Appellants:Shri Virendra Sharma, Advocate
For the State/Respondents:Shri H.S. Rathore, Government Advocate
IMPORTANT POINT
Attempt to outrage modesty – Intention to outrage modesty of a woman is significant ingredient of Section 354 of IPC.
Headnote:
Protection of Children from Sexual Offences Act, 2012 – Sections 7 and 8 – Indian Penal Code, 1860 – Section 354 read with Section 34 – [Section 74 read with Section 3(5) of BNS, 2023] – Attempt to outrage modesty and grievous hurt – Conviction and sentence – Acquittal of co-accused persons – Intention to outrage modesty of a woman is significant ingredient of Section 354 of IPC – In this case, there is material contradiction on point of “bad intention” and due to that “trembling of prosecutrix” – Prosecution also failed to prove the fact that Mobile given to prosecutrix was belonged to appellant – FIR was lodged not just after incident of molestation but rather it was lodged after receiving injury by prosecutrix’s father and brother – In these circumstances, there is great chance to make a false case against appellant regarding molestation with intention to aggravate nature of offence – Prosecutrix has also not received any injury in incident – She cannot be treated as injured witness and testimony of prosecutrix doesn’t inspire confidence – Independent witness has not been produced by prosecution – Since prosecution case has not been fortified by statements of witnesses and important ingredients as to intention of outraging modesty of prosecutrix has not been evinced beyond reasonable doubt by prosecution, appellant cannot be convicted for offence under Section 354 of IPC and Section 7/8 of POCSO Act – Appellant acquitted from all charges.(Paras 13, 14, 15 and 16)
Result: Appeal allowed.
JUDGMENT
This criminal appeal is preferred under Section 374 of Cr.P.C. by the appellants being crestfallen by the judgment dated 27.12.2021, passed by Special Judge (Protection of Children from Sexual Offences, 2012)/XIth, Additional Sessions Judge, Ujjain, in Sessions Trial No.207/2018, whereby appellant Nitesh has been convicted for the offence punishable under Sections 354, 323 read with Section 34 (two counts) of Indian Penal Code, 1860 (hereinafter referred as ‘I.P.C.’) & Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO’) and sentenced to undergo 01 year R.I., 06 months R.I. (two counts) & 03 years R.I. with fine of Rs.500/-, Rs.500/- (two counts) and Rs.500/- respectively and default stipulations and appellants Laxman and Gajendra have been convicted under Section 323 of I.P.C. (two counts) and sentenced to undergo for 06 months R.I. (two counts) with fine of Rs.500/- and default stipulation.
2. Before dwelling upon the points in this appeal, it is worth mentioning that appellants Nitesh, Laxman and Gajendra have already been acquitted from the charges of the offence punishable under Section 323 of IPC (two counts), on the basis of the compromise petition filed by the injured persons/ complainants Vijay Gaud, Ankit and Himanshi Gaud. Since the offence under Section 354 of IPC is not compoundable, the compromise petition with regard to the charges framed against appellant Nitesh Patidar under Section 354 of IPC and under Section 7/8 of POCSO Act could not be allowed. Thus, this appeal is being decided with regard to the aforesaid offences against appellant No. 1.
3. As per the case of prosecution, on 07.02.2018 at about 04:00 pm, the prosecutrix went to take tuition from her tuition teacher’s house where one Nitesh Patidar was also used to come for tuition. After tuition at about 5:30 pm, when the prosecutrix was going to her home, Nitesh Patidar gave her a mobile phone and caught her hand with bad intention and asked her to talk to him. Further, the prosecutrix went to her home and told about the incident to her parents. Thereafter, her father, her brother alongwith tuition teacher went to the house of Amarsingh Gehlot where Nitesh Patidar was residing. On reaching thereon, the tuition teacher called Nitesh Patidar. However, Gajendra Singh Gehlot and his son Laxman Gehlot came there and informed them that, Nitesh was not in the house and asked them as to why they came to his brother’s house. Meanwhile, Nitesh Patidar also came on the spot and thereafter, Nitesh alongwith Gajendra and Laxman started beating the father of the prosecutrix and her brother with fists and slapping. They also abused them. During the altercation, Saurabh Bhati, tuition teacher intervened to rescue them. In the course of incident, father of prosecutrix received injuries on chicks, head and stomach. On the same day, the complainant went to police station and lodged a complaint, thereafter, offence was registered against the appellants.
4. In course of investigation, injured persons prosecutrix’s father and brother Ankit were sent for medical examination, spot map was prepared, seizure memos were prepared and statements of the witnesses were recorded. After completion of investigation, charge-sheet was filed and case was committed to the Court of Sessions and thereafter made over to the Court Xth Additional Sessions Judge, Ujjain.
5. The prosecution has examined total 07 witnesses namely Prosecutrix (PW-1), S. Rubisas, Principal of School (PW-2), Prosecutrix’s father (PW-3), Dr. S.S. Daboriya, Medical Officer (PW-4), cousin of prosecutrix (PW-5), Saurabh Bhati (PW-6) and Laxman Ukey, Sub-Inspector (PW-7). No witness has been examined in support of the defence. The appellants abjured their guilt and they took a plea that they are innocent.
6. After analyzing the prosecution evidence and considering the rival submissions, the learned trial Court has acquitted the appellants Gajendrasingh and
