Delhi High Court: The instant appeal preferred by the State under Section 378(1)(b), Criminal Procedure Code, 1973 (CrPC), challenging trial court’s judgment of acquittal dated 29 January 2015, whereby the respondent/accused had been tried for offences under Sections 354-A and 354-D, Penal Code, 1860 (IPC) and Section 12, Protection of Children from Sexual Offences Act, 2012 (POCSO Act), in connection with an incident of catching hold of the minor’s hand without consent with sexual intent by the accused, a stranger. The Single Judge Bench of Chandrasekharan Sudha*, J., although held that a stranger grabbing minor’s hand at night held to constitute criminal force under Section 354 IPC but upheld the trial court’s order of acquittal. The Court reasoned its decision on following grounds:
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The ingredients for the offences charged, Sections 354-A, 354-D IPC and Section 12, POCSO Act, were not made out.
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Although the facts may disclose an offence under Section 354 IPC, absence of charge and inapplicability of Section 222 CrPC prevented conviction.
Factual Matrix
The prosecution case is that on 20 March 2013 at about 10.00 p.m., PW 2, a minor aged about 17 years, was returning from a common bathroom to her room situated on the fourth floor of a building in Naraina Village.
At that time, the accused, a stranger, came from behind and caught hold of her hand. PW 2 managed to free herself, ran into her room, bolted the door from inside, and raised alarm. The accused followed her, banged on the door, and shouted abuses. Upon hearing the commotion, other residents gathered, apprehended the accused, and informed the police.
The police reached the spot, recorded her statement, and arrested the accused. An FIR was registered at Naraina Police Station on the basis of the complaint of PW 2. After investigation, charge-sheet was filed. The trial court framed charges under Sections 354-A and 354-D IPC and Section 12, POCSO Act. The accused pleaded not guilty and claimed trial.
The Additional Sessions Judge, by order dated 29 January 2015, acquitted the accused acquitted of offences under Sections 354-A, 354-D IPC and Section 12, POCSO Act. The State preferred the present appeal under Section 378(1)(b) CrPC, challenging the impugned order of acquittal.
Issues for Determination
Whether the impugned order of acquittal suffers from any infirmity warranting interference by the appellate court?
Analysis
Scope of Appellate Interference
At the outset, the Court observed that under Section 386 CrPC, the appellate court possesses full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. CrPC does not impose any limitation or restriction on the exercise of such power, and the appellate court may reach its own conclusion both on questions of fact and law. At the same time, the Court emphasised that expressions such as “substantial and compelling reasons”, “strong circumstances” or “glaring mistakes” are not intended to curtail this power but merely underscore the reluctance of an appellate court to interfere with an acquittal. However, it was further underscored that in cases of acquittal, a double presumption of innocence operates in favour of the accused: (i) the presumption of innocence is a fundamental principle of criminal jurisprudence; and (ii) such presumption stands reinforced by the acquittal recorded by the trial court. Consequently, if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court ought not to disturb the finding of acquittal. [See Babu Sahebagouda Rudragoudar v. State of Karnataka, (2024) 8 SCC 149; Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471; and Chandrappa v. State of Karnataka, (2007) 4 SCC 415].
Relying on Ram Kumar v. State of Haryana, 1995 Supp (1) SCC 248, the Court noted that due weight must be given to the trial court’s advantage of observing the demeanour of witnesses. It reiterated the settle principle of law that “if the main grounds on which the court below has based its order acquitting the accused, are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal”.
Determination of Charges
The Court noted that although the charge-sheet alleged offences under Sections 354, 354-A, 354-D and 509 IPC along with Section 10, POCSO Act, the trial court had framed charges only under Sections 354-A, 354-D IPC and Section 12, POCSO Act. Therefore, the enquiry was confined to whether the evidence on record established the ingredients of these specific offences.
The Court noted that Section 354-A IPC contemplates sexual harassment and requires the presence of unwelcome and explicit sexual conduct coupled with sexual intent with fulfilling following essential ingredients:
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the victim must be a woman;
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there must be unwelcome and explicit sexual conduct; and
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conduct may include physical contact and advances involving sexual intent, a demand or request for sexual favours, showing pornography against her will, or making sexually coloured remarks.
Section 354-D IPC deals with stalking and the essential ingredients are:
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the accused must follow or contact a woman repeatedly;
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such contact must be despite a clear indication of disinterest by the woman; or
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the accused monitors her use of the internet or electronic communication.
Section 12, POCSO Act prescribes punishment for sexual harassment of a child, essential ingredients are:
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the victim must be a child below 18 years of age;
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the accused must engage in sexual harassment without physical contact; and
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such conduct may include making sexual remarks, gestures, showing pornography, or repeatedly communicating with sexual intent.
Evaluation of Evidence vis-à-vis Charged Offences
Upon examining the materials on record, the Court found that the alleged overt acts of the accused did not satisfy the statutory ingredients of Section 354-A or Section 354-D IPC or Section 12, POCSO Act. The conduct attributed to the accused, though improper, did not amount to sexual harassment in the manner contemplated under Section 354-A, nor did it constitute repeated following or stalking within the meaning of Section 354-D. Similarly, the requirements of Section 12, POCSO Act, which presuppose non-contact sexual harassment through gestures or communication, were not fulfilled.
The Court examined Section 354 IPC, statutory definitions of “force” under Section 349 IPC, “criminal force” under Section 350 IPC, and “assault” under Section 351 IPC, to decide whether the proved facts would constitute an offence under Section 354 IPC, which penalises assault or use of criminal force to outrage the modesty of a woman.
Applying these definitions to the facts of the case, the Court observed that the conduct of the accused, being a stranger, approaching the victim at night while she was returning from a common washroom, and catching hold of her hand without her consent, would certainly amount to use of criminal force. The reaction of the victim, who became frightened, ran into her room and bolted the door, further corroborated the nature of the act. The Court noted that such conduct, by its very nature, was “sexually coloured” and clearly indicative of an intention to outrage the modesty of the victim. The absence of any prior relationship and the suddenness of the act reinforced this inference.
The Court thus recorded a clear finding that even if the ingredients of Section 354-A IPC were not made out, the facts established on record would squarely constitute an offence under Section 354 IPC.
Applicability of Section 222 CrPC
The Court further considered whether the accused could be convicted under Section 354 IPC despite the absence of a specific charge. For this purpose, reliance was placed on Section 222 CrPC, which permits conviction for a “minor offence” even if no charge has been framed for such offence.
The Court referred to the decision in Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577, wherein it was held that the concept of “minor offence” is not determined merely by the lesser punishment but by the nature of the ingredients, but “only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as a minor offence, vis-a-vis the other offence”.
Upon comparing Sections 354 and 354-A IPC, the Court found that the ingredients of the two provisions are distinct. While Section 354 IPC requires use of criminal force with intent to outrage modesty, Section 354-A IPC pertains to specific acts of sexual harassment. Despite the punishment under certain sub-clauses of Section 354-A being lesser, the offences cannot be regarded as cognate or interchangeable. Consequently, Section 354 IPC cannot be treated as a “minor offence” vis-à-vis Section 354-A IPC.
In view of this distinction, the Court held that neither Section 222(1) nor Section 222(2) CrPC could be invoked to convict the accused under Section 354 IPC in the absence of a charge.
Decision
The Court held that although the evidence on record disclosed conduct amounting to an offence under Section 354 IPC, the legal constraints arising from the absence of a charge and the inapplicability of Section 222 CrPC, provided no ground for interference. Therefore, the appeal sans merit is dismissed and the acquittal was upheld.
[State v. Nitu Singh, CRL.A. 265/2018, decided on 28-4-2026]
*Judgment by Justice Chandrasekharan Sudha
Advocates who appeared in this case:
Mr. Utkarsh, APP, Counsel for the Appellant/State
Mr. Ravinder Mehandra, Adv., Counsel for the Respondent
Buy Protection of Children from Sexual Offences Act, 2012 HERE
Buy Code of Criminal Procedure, 1973 HERE
