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IN THE HIGH COURT OF DELHI AT NEW DELHI
MUKTA GUPTA, J.
AMIT @ LALU – Appellant
Versus
STATE – Respondent
CRL.A. 858 of 2016
Decided On : 25-05-2017
POCSO Act - Sexual Offences - Section 354/354A IPC, Section 8 of POCSO Act - 354, 354A, 8 - The court discussed the offences punishable under Sections 354/354A IPC and Section 8 of POCSO Act. It highlighted the key legal provisions of Section 354 and 354A IPC, emphasizing the distinction between assault/criminal force and physical contact with explicit sexual overtures. The court also emphasized the elements of sexual assault without penetration under Section 8 of the POCSO Act and upheld the appellant's conviction for these offences.
Fact of the Case:
The appellant challenged the judgment convicting him for offences punishable under Sections 354/354A IPC and Section 8 of POCSO Act. The prosecutrix alleged that the appellant assaulted her and forced her for a kiss, leading to the registration of an FIR and subsequent trial.
Finding of the Court:
The court upheld the appellant's conviction for offences under Sections 354/354A IPC and Section 8 of POCSO Act, emphasizing the fulfillment of the necessary ingredients for these offences. The defense of false implication was not supported by evidence, leading to the dismissal of the appeal.
Issues: The issues revolved around the appellant's challenge to the conviction for sexual offences under Sections 354/354A IPC and Section 8 of POCSO Act, as well as the defense of false implication.
Ratio Decidendi: The court emphasized the distinction between the elements of assault/criminal force under Section 354 IPC and physical contact with explicit sexual overtures under Section 354A IPC. It also highlighted the elements of sexual assault without penetration under Section 8 of the POCSO Act.
Final Decision: The appeal was dismissed, and the impugned judgment of conviction and order on sentence were upheld.
Key Points: - The judgment explains the distinction between Section 354 IPC (assault or criminal force to outrage modesty) and Section 354A IPC (sexual harassment) and their ingredients. (!) (!) (!) (!) (!) (!) (!) (!) - It discusses whether a conviction can be for both 354/354A IPC and Section 8 of POCSO Act simultaneously, addressing the overlap and indicating how the court approached such convictions. (!) (!) (!) - It upholds conviction and sentences for offences under Sections 354 IPC, 354A IPC, and Section 8 of POCSO Act, confirming the elements proved in this case (minor prosecutrix, physical contact, sexual intent, and assault/criminal force). (!) (!)
1. Amit @ Lalu challenges the impugned judgment dated 8th July, 2016 convicting him for offences punishable under Sections 354/354A IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’) and the order on sentence dated 9th July, 2016 directing him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.3,000/- for offence punishable under Section 8 of POCSO Act, rigorous imprisonment for a period of one year for the offence punishable under Section 354A IPC and rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- for offence punishable under Section 354 IPC.
2. Assailing the conviction, learned counsel for the appellant contends that the present case is a case of sexual harassment punishable under Section 354A IPC and not a case of sexual assault. He further submits that the appellant cannot be convicted simultaneously for the offences punishable under Sections 354/354A IPC and Section 8 of POCSO Act.
3. Learned APP for the State on the other hand submits that there is no illegality in the impugned judgment and the order on sentence. The version of the prosecutrix was that she was touched thus constituting offence punishable under Section 8 of POCSO Act. Further the sexual intent is clear from the fact that the appellant pushed the prosecutrix on the sofa and forced her for a kiss.
4. FIR No. 247/2013 was registered under Sections 354/354A IPC and Section 12 of POCSO Act at PS Khajuri Khas on the complaint of PW-3 the prosecutrix wherein she stated that she studied in class 8th in Govt. Senior Secondary School, Khajuri Khas, Delhi. On 7th May 2013, around 9:00 P.M. when she had gone to fetch milk from the dairy of the appellant, the appellant stated that he wanted something from her. On her asking, he stated that he wanted a kiss from her. When she rebuked, he held her hand, pulled her and started assaulting her. He was under the influence of alcohol. However, she freed herself, went home and narrated the incident to her mother. After she told PW-4 her mother, she went to the shop of the appellant to confront him but he started misbehaving with her mother. Thereafter, PW-8 SI Pravesh Kumar along with the prosecutrix and her mother went to the house of the appellant where he was present and under the influence of alcohol. SI Pravesh Kumar interrogated and arrested him. On 8th May, 2013, statement of the prosecutrix was recorded before the learned Metropolitan Magistrate under Section 164 Cr.P.C. After completion of investigation, charge sheet was filed for offences punishable under Sections 354/354A IPC and Section 12 of POCSO Act and charge was framed for offences punishable under Sections 354/354A IPC and Section 8 of POCSO Act.
5. Before Court, the prosecutrix deposed in conformity with her statement made before the police. She further deposed that when the appellant caught hold of her hand, the appellant pulled down the shutter of the milk dairy. She deposed that the appellant stated, 'kajal mujhe tumse kiss chahiyea'. When she resisted, the appellant forced her for a kiss and threw her down on the sofa by pulling her hand.
6. Mother of the prosecutrix corroborated the testimony of the prosecutrix and stated that when the prosecutrix returned home at 9:15 P.M. on the day of incident, she was weeping and she stated that the appellant had caught hold of her hand and asked for a kiss.
7. The issue whether an accused could be simultaneously convicted for offences punishable under Sections 354 and 354A IPC came up for consideration before this Court in the decision reported as 237 (2017) DLT 271 T. Manikandan Vs. The State (Govt. of NCT of Delhi) & Anr. wherein this Court held-
“6. Sections 354 and 354A to 354D IPC read 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 there
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