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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Harsh Kumar, J.
State of U.P. - Appellant
Vs.
Kuldip Alias Kamlesh - Respondent
Government Appeal No. - 778 of 2018
Decided On : 13-11-2018
POCSO Act - Acquittal - Sections 354, 354A I.P.C. and Sections 7 & 8 of POCSO Act - The court discussed the provisions of Sections 354, 354A I.P.C. and Sections 7 & 8 of POCSO Act and concluded that the mere act of throwing a mobile phone or medicines did not constitute an offence under these sections. The prosecution failed to prove specific acts of the accused that would amount to the offences under the mentioned sections.
Fact of the Case:
The court considered an application for leave to file an appeal against the acquittal of the accused-respondent for charges under Sections 354(A), 506 I.P.C. and Section 8 of POCSO Act. The prosecution alleged that the accused-respondent offered a mobile phone to a 13-year-old prosecutrix, made obscene acts, and threatened her, but the trial court acquitted the accused.
Finding of the Court:
The court found that the prosecution failed to prove the specific acts of the accused that would constitute the alleged offences. It noted contradictions in the prosecutrix's statement and concluded that the trial court's judgment of acquittal was flawless and did not warrant interference.
Issues: The issues revolved around the alleged acts of the accused-respondent and whether they constituted offences under the relevant sections of the law.
Ratio Decidendi: The court's decision was based on the lack of evidence to prove the specific acts of the accused that would amount to the alleged offences under the relevant sections of the law. It also emphasized that the trial court's judgment of acquittal was well-reasoned and did not suffer from any legal infirmity.
Final Decision: The court dismissed the application for leave to file an appeal and upheld the acquittal of the accused-respondent.
JUDGMENT :
Harsh Kumar, J.
1. Heard learned A.G.A. for the State and perused the record.
2. The application has been moved for leave to file appeal against the impugned judgment and order dated 27.7.2018 passed by Additional Sessions Judge, Court No.1/Special Judge, POCSO Act, Hamirpur in Special Case Trial No.34 of 2016 (State Vs. Kuldip @ Kamlesh), by which the learned Judge has acquitted the accused-respondent Kuldip @ Kamlesh for the charges of offence under Sections 354(A), 506 I.P.C. and Section 8 of POCSO Act.
3. Learned A.G.A. submitted that it is proved from the evidence on record that the respondent-accused offered a mobile phone to 13 years old prosecutrix on 6.2.2016 at about 12 in noon when she was all alone at home and upon her denial he thrown away the mobile inside her house and since then outrages her modesty and also threatens of life and commits obscene acts; that the prosecutrix in her statement on oath has stated that after the incident the accused-respondent made a call on the mobile phone (thrown by him) wherein he demanded a sum of Rs.1,000/-from her and that some medicines were also thrown by him along with the mobile phone, and when she was going to school accused-respondent caught her from behind and told her to give the medicines provided by him to all the family members and then to approach him; that learned trial court has acted wrongly and illegally rather perversely in holding that throwing of the mobile phone or medicines as alleged, does not bring the action of accused-respondent within the definition of an offence under Section 354 or 354A I.P.C. or under Section 7/8 POCSO Act; that learned trial court has acted wrongly and perversely in acquitting the accused-respondent from the offences under Sections 354A, 506 I.P.C. and Section 8 of POCSO Act; that in the circumstances the leave to appeal may be granted.
4. Upon hearing learned A.G.A. and perusal of record, I find that in the F.I.R. there is no whisper of throwing any medicines with the mobile phone and the learned trial court in detailed analysis of evidence on record has found various contradictions in the statement of prosecutrix and has found her statement to be self-contradictory. The accused has stated that he has been falsely implicated due to election rivalry as his father was village Pradhan and the alleged act of accused-respondent in throwing away the mobile in the house of prosecutrix does not amount to an offence under Section 354A I.P.C. as has been rightly negated by the trial court.
5. For ready reference the provisions of Sections 354, 354A I.P.C. and Sections 7 & 8 of POCSO Act are being reproduced hereunder:-
Provision of Sections 354, 354A I.P.C.-
354 A. Sexual harassment and punishment for sexual harassment.-(1) A man committing any of the following acts-
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks,
shall be guilty of the offence of sexual harassment.
Provision of Sections 7 & 8 of POCSO Act
7. Sexual assault.-Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
8. Punishment for sexual assault .-Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to
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