Man grooving his neck towards a woman while riding two-wheeler and listening to music not ‘stalking’ under S.354-D of IPC: Bombay HC

Bombay High Court: In the present case, applicant was convicted under Section 248(2)¹ of Criminal Procedure Code, 1973 for offences punishable under Sections 279², 354-D³, and 337⁴ of the Penal Code, 1860 (‘IPC’) and was sentenced to undergo rigorous imprisonment of three months and to pay fine of Rs 500 for offence punishable under Section 354-D; rigorous imprisonment of three months and to pay fine of Rs 5,000 for offence under Section 279 and rigorous imprisonment of three years and to pay fine of Rs 500 for offence punishable under Section 337 of IPC.

A Single Judge Bench of Milind N. Jadhav, J., opined that applicant’s act of shaking his neck i.e., grooving his neck while riding and simultaneously listening to the music did not fall into any one of the ingredients of the offence of stalking under Section 354-D of IPC. The Court agreed with the complainant’s submission that the act of overtaking and coming close while driving a vehicle in motion endangered the life and limb of both the riders, therefore, the Court stated that applicant had been correctly convicted for rash and negligent driving even though there was no collision between the vehicles of the parties.

The Court stated that the incarceration of 36 days in prison of applicant was adequate sentence for offences punishable under Sections 279 and 337 of IPC, therefore, the sentence of three months awarded to applicant was reduced to 36 days imprisonment only which was already undergone by applicant. The Court thus directed the Jail Superintendent, Taloja Jail to immediately release applicant from jail custody/prison on the date of the order itself.

Background

Applicant was listening to loud music on his headphones while riding his motorcycle and thereafter rode it alongside the complainant and looked at her and gestured to her by shaking his neck. Thereafter, as the complainant approached railway station, applicant again overtook her and moved his motorcycle close to her, as a result of which the complainant lost balance of her two-wheeler and fell to the ground. The complainant sustained injuries to her right elbow, shoulder, and thigh. The people present at the incident caught hold of applicant and took him to the police station.

The complainant submitted that applicant was following/stalking her while honking incessantly and looked at her with bad intention and made gestures and rode his motorcycle remarkably close to her.

Analysis, Law, and Decision

The Court noted that applicant and the complainant did not know each other at all and on the date of the incident, association of applicant and complainant was barely for a period of 15-20 minutes. The Court opined that there was a dichotomy whether the complainant dashed her scooty to a parked Fortuner vehicle or a taxi and there was no investigation done at all.

The Court stated that for the applicability of Section 354-D of IPC, it was necessary to prove that applicant was following the complainant, he contacted her while doing so and that his contact with her was intended at fostering personal interaction repeatedly despite a clear indication of disinterest by her. If these ingredients were proven by the prosecution beyond reasonable doubt, then offence of stalking could be invoked. However, in the present case, applicant came from behind and since the complainant was on her scooty waiting in front of him, to overtake and go ahead of her, he honked incessantly. Thereafter, applicant repeated the same act and in the third instance, the same act was repeated leading to the complainant having collision with a parked Fortuner vehicle.

The Court opined that if this version was true, then on all the three instances, applicant came from behind and attempted to overtake the complainant from the right side which was the correct side.

The issue for consideration was “whether the facts of the present case could be attributed to the ingredients of stalking under Section 354-D of IPC?”.

The Court opined that there was no evidence collected and gathered by the Investigating Officer from the CCTV cameras to corroborate and prove the ingredients of stalking. On the other hand, the prosecution’s case itself disproved that applicant contacted, attempted to contact, attempted to foster personal interaction, attempted to do so repeatedly despite the complainant showing disinterest and such things were clearly not proved. There was no talk, approach, or interaction between the parties.

The Court opined that applicant’s act of shaking his neck i.e., grooving his neck while riding and simultaneously listening to the music did not fall into any one of the ingredients of the offence of stalking under Section 354-D of IPC. The Court stated that the Trial Court did not appreciate the ingredients of Section 354-D in the facts of the present case and construed that applicant’s act was an attempt to affect the modesty of the woman.

The Court stated that there was no mens rea involved in the present case and no direct evidence in that regard. The Court opined that such an act could not be inferred based on mere conduct as conduct was a group of acts committed by a person. The observations and finding did not lead to applicant committing any act described under the definition of ‘stalking’ under Section 354-D and therefore, applicant’s conviction was quashed and set aside.

The Court agreed with the complainant’s submission that the act of overtaking and coming close while driving a vehicle in motion endangered the life and limb of both the riders. The Court opined that the prosecution’s case of rash and negligent driving, as appreciated by the Trial Court and upheld by the District Court, needed to be accepted as the complainant had suffered injuries. The Court stated that the complainant on her own without the intervention or attempted interjection of applicant could not have met with the accident and thus, there was contributory negligence applicable to a certain extent.

The Court also stated that riding a two-wheeler with loud music and headphones on ears would also qualify as a rash act on applicant’s part while riding a two-wheeler. In the present case, there had been constant wavering and applicant had interjected his two-wheeler alongside complainant’s two-wheeler causing an accident. Thus, the Court held that the prosecution’s case was proved beyond reasonable doubt to this extent only and there was no reason to interfere with the impugned judgment of the Trial Court which was upheld and modified by the District Court to the extent of the typographical mistake occurring therein.

The Court relied on Municipal Corpn., Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731 and opined that applicant had materially contributed to the damage i.e., the negligence leading to the accident of the complainant and there was a degree of want of care and caution which had contributed to the negligence of applicant in his act of riding his two-wheeler too close in proximity to the complainant’s two-wheeler along with his headphones on while listening to music. Therefore, the Court stated that applicant had been correctly convicted for rash and negligent driving even though there was no collision between the vehicles of the parties.

The Court after considering that applicant had already been incarcerated and had been in prison from 06-09-2024 till the date of this order, opined that applicant’s imprisonment of 36 days would serve the sentencing purpose and was adequate and deterrent enough punishment to him for his act of rash and negligent driving. The Court further stated that the incarceration of 36 days in prison of applicant was adequate sentence for the twin offences punishable under Sections 279 and 337 of IPC. Therefore, the sentence of three months awarded to applicant was reduced to the period of 36 days imprisonment only which was already undergone by applicant.

The Court partly allowed the application and held that applicant was completely exonerated from the offence of Section 354-D of IPC and sentencing under Sections 279 and 337 of IPC passed by both the Courts below in the impugned judgments was modified/reduced to 36 days only.

The Court directed the Jail Superintendent, Taloja Jail to immediately release applicant from jail custody/prison on the date of the order itself.

[Rakesh Matasharan Shukla v. State of Maharashtra, 2024 SCC OnLine Bom 3243, decided on 11-10-2024]

Advocates who appeared in this case:

For the Applicant: Tanveer Aziz Patel a/w. Aditya Shah, Advocates

For the Respondent: Sangita Phad, APP