Shiv Kumar Dubey v. The State of Jharkhand

: Mr. R.S. Mazumdar, Sr. Advocate Mr. Nishant Kumar Roy, Advocate : Mr. Saket Kumar, APP : Mr. Rakesh Kumar Sinha, Advocate Ms. Juhi Kumari, Advocate --------------- nd December 2022 The judgment dated 28th February 2015 passed in Criminal Appeal No. 16 of 2015 is under challenge in the present criminal revision petition.

2. The petitioner has suffered SI for three years under section 354-B of the Indian Penal Code (in short, 'IPC') by judgment dated 29th January 2015 in T.R. No.1810 corresponding to GR Case No. 2285 of 2014.

3. In T.R. No.1810 corresponding to GR Case No. 2285 of 2014 the trial Court has held as under: “14. ……… I find that charges involved in this case against the accused is very serious in nature and involves modesty of woman and in such circumstance, it is very probable for any woman to become mentally upset. It is admitted that she called her husband immediately over the phone after the alleged incident and her husband arrived overnight after which they enquired from the pandit and then lodged the F.I.R. Hence, there is genuine reason for the delay. It has further been contended by the defence that there was dispute with regard to previous donation due to which enmity prevailed among them and as a result of which the pandit has been falsely implicated. I find that in this case it is well admitted by the witnesses that the pandit used to visit the house of PW-2 Meera Devi since last 10-15 years and both her Son and daughter-in-law had been residing at Ramgarh since last one year. It is also admitted that PW-2 Meera Devi had called the pandit for settling down quarrel between her son and daughter-in-law and if there was any such enmity 2 Cr. Rev. No. 369 of 2015 and dispute then Meera Devi would have never called the pandit and even if he was called then she would have never had such faith and trust in him to allow him to take measurement of her daughter-in-law in private. I am also unable to think that if there was any dispute with regard to donation with the pandit then why would any lady come up with such a serious allegation by compromising with her modesty and respect. I also find that her entire family has the corroborated the allegations against the accused. As far as ingredient of "section 354B is concerned, I find that it was pandit who told the informant victim to remove her clothes. Accused has taken advantage of the faith and trust of both the informant and PW2 Meera Devi, who were blinded by the faith thinking that the pandit will do some kind of magic and there will be peace and harmony in between informant and her husband. It was believed by the informant that pandit would only measure her body for some ritual but instead pandit took advantage of the situation and started caressing her breast and in spite of resistance from the informant pandit did not stop and also started inserting thread into her private part. Thus, ingredients of section 354B is well established in this case. 15. Accordingly based upon all the above findings and discussions and keeping in view the facts and circumstances of this case I am of the view that the prosecution has been able to prove this case against the accused person beyond shadow of all reasonable doubt. 16. Therefore, the accused namely Shiv Kumar Dubey is held guilty for offence under u/s 354B IPC and he is convicted accordingly.....”

4. While dismissing Criminal Appeal No. 16 of 2015, the appellate Court has held as under: “16. From the aforesaid facts and circumstances, it is evident that the prosecutrix has supported the case as stated in the written report. All the witnesses have corroborated her on the point of date, time, place and manner of occurrence. Meera Devi P.W.2 and Amarjit Kumar Kushwaha, P.W.4, both have corroborated the fact that on hearing hulla by the prosecutrix, they went to Pooja Room and saw the appellant descending from the stairs and the prosecutrix told him about occurrence just after occurrence. Therefore, the evidence on this point shall be admissible U/s 6 of the Evidence Act. There is nothing in the cross-examination of witnesses to doubt their veracity. 17. Considering the aforesaid facts and circumstances of the case, I am of the opinion that the prosecution has been able to prove its case against the appellant for the offence U/s 354B of IPC beyond all reasonable doubts. The learned court below has rightly held the appellant guilty and I do not find any illegality in the impugned judgment of the learned court below. As far as the question of sentence is concerned, it is proportionate to the gravity of the offence and does not require any interference. This appeal is dismissed.”

5. Thus, both the Courts have held that the prosecution has proved 3 Cr. Rev. No. 369 of 2015 the facts for constituting the essential ingredients of the offence under section 354-B IPC.

6. The essential ingredients for constituting the offence under section 354-B IPC are: (i) assault or use of criminal force, or (ii) abets to such act to a woman and (iii) with the intention to disrobe or compel a woman to be naked.

7. The offence of criminal force has been defined under section 350 IPC to mean whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.

8. Assault as defined under section 351 IPC would mean that whoever makes any gesture or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person to apprehend that he who makes that gesture or preparation is about to use criminal force to that person.

9. Mr. R.S. Mazumdar, the learned senior counsel for the petitioner has submitted that the best piece of evidence in the cases of this nature would come from the victim herself and the other witnesses shall only provide corroboration to her testimony.

10. This argument has been raised on behalf of the petitioner in the context of the statement of the complainant in paragraph no.12 of her cross-examination.

11. The informant who tendered evidence as PW1 has stated in paragraph no.12 of her cross-examination thus: “12. ?kj ds vkl&ikl dkSu jgrs gSa eSa fdlh dks ugha tkurhA iafMr th eq>s diM+k [kksyus cksys rks eSaus [kqn ls diM+k [kksykA eSa iwjh rjg ls uaxh ugha gqbZ Fkh 'kjhj ij diM+k FkkA” English Translation: “12. I do not know anyone who lives near my house. Pandit Jee asked me to remove clothes then I removed it myself. I was not completely naked, I had clothes on my body.”

12. The statement made by the informant that she on her own removed her dress rules out use of criminal force or assault upon her by the 4 Cr. Rev. No. 369 of 2015 petitioner. From her statement in paragraph no.12, it is also not reflected that when the petitioner asked her to remove her dress he intended to outrage her modesty. Still further, the evidence of the victim lady does not establish that the petitioner intended to disrobe her or least to say that compelled her to be naked.

13. Therefore, conviction of the petitioner under section 354-B IPC is not sustainable.

14. However, on a reading of the evidence tendered by the prosecution witnesses the offence of sexual harassment is made out against the petitioner. In my opinion, the prosecution has been able to prove that the petitioner committed the offence as provided under clause (i) under section 354-A IPC for which the sentence provided is imprisonment of either description of 3 year, or with fine, or with both.

15. In the peculiar facts of the case, the petitioner is awarded SI for one year under section 354-A IPC for the offence committed by him.

16. During the trial, the petitioner was in custody from 7th June 2014 to 29th January 2015 and from 29th January 2015 to 28th April 2015.

17. Considering the age of the petitioner who is about 76 years old, the sentence of SI for one year under section 354 IPC is reduced to the period already undergone by him.

18. Accordingly, Criminal Revision No. 369 of 2015 is allowed, in the aforesaid term.

19. The petitioner shall stand discharged of liability of the bail bonds furnished by him pursuant to the order dated 28th April 2015 passed by this Court.

20. Let a copy of the order be transmitted to the Court concerned through 'FAX'.

21. Let the lower Court records be sent back to the Court concerned forthwith. RKM (Shree Chandrashekhar, J.)