PRAKASHAN v. STATE OF KERALA

Crl.M.C.No.912/2024 2

"C.R"

A. BADHARUDEEN, J.

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Crl.R.P.No.912 of 2024 ================================ Dated the 4^th day of October, 2024

O R D E R

This revision petition has been filed under Sections 438 ad 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging judgment in Crl.Appeal No.41/2024 on the files of Sessions Court, Palakkad, arising out of the judgment in C.C.No.868/2018 on the files of the Judicial Magistrate of First Class-II, Palakkad.

2. Revision petitioner herein is the sole accused in the above case.

3. Heard the learned counsel for the revision petitioner/accused and the learned Public Prosecutor on admission.

4. The prosecution case in a nut shell is that the accused/revision petitioner, who is a resident of Mankara, Palakkad, continuously followed the defacto complainant, a lady working in a school

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Crl.M.C.No.912/2024 3 as a teacher by profession and contacted her even though she had given clear indication that she had no interest towards the accused. This is the base on which prosecution alleges commission of offence punishable under Section 354-D of the Indian Penal Code (`IPC' for short).

5. On getting the final report filed by the Investigating Officer, the learned Magistrate proceeded with trial after completing pre- trial formalities. During trial, PW1 to PW5 were examined and Exts.P1 to P5 were marked on the side of prosecution. Though opportunity was provided to the accused to adduce evidence after questioning him under Section 313(1)(b) of Cr.P.C, no defence evidence was adduced. After elaborately discussing the evidence tendered by the prosecution, the learned Magistrate found that the allegation against the accused that he had committed offence punishable under Section 354-D of the IPC was proved beyond reasonable doubts and thereby he was convicted for the said offence and sentenced to undergo simple imprisonment for a period of four months and to pay fine of Rs.2,000/- (Rupees Two thousand only) and in default of payment of fine, simple imprisonment for a period of one month also was imposed.

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Crl.M.C.No.912/2024 4

6. Challenging the verdict of the trial court, the revision petitioner filed an appeal before the Sessions Court, Palakkad and as per the judgment in Crl.Appeal No.41/2024 dated 11.06.2024 the learned Sessions Judge upheld the conviction as well as the sentence.

7. Now the revision petitioner/accused impugns the concurrent verdicts of conviction as well as sentence.

8. At the time of hearing the learned revision petitioner submitted that commission of offence punishable under Section 354-D of IPC is not proved beyond reasonable doubts with the necessary ingredients to attract the said offence and there were inconsistencies in the evidence of PW1. Delay in lodging the FIR is another ground canvassed to unsustain the concurrent verdicts. Identity of the accused is another challenge raised in this revision petition.

9. Opposing the contentions raised by the learned counsel for the revision petitioner, the learned Public Prosecutor would submit that the trial court relied on the evidence of PW1, the victim herself, supporting the allegations after identifying the accused with certainty and, in fact, there is no inordinate delay also in registering the crime. Therefore,

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Crl.M.C.No.912/2024 5 concurrent verdicts do not require any interference and the same are liable to be confirmed.

10. On scrutinising of the verdicts impugned, it is discernible that the defacto complainant, who had given evidence as PW1, supported the prosecution stating that while she was working as a teacher at Padashala English Medium School, the accused used to disturb her while she was going to the school. Further he followed and exhibited gestures with an intention to insult her dignity, despite her disinclination. Once he sent chocolates to her through her students and even though she asked him to stop stalking, despite her objection he continued the same. Thereafter, she informed the same to her family and her brother warned the accused. But the accused not changed his attitude and accordingly she made an oral complaint at the Police Station. He was warned by the police and thereafter he discontinued the disturbance for a short period. After a short period, he resumed and continued stalking and thereby she filed complaint on 19.07.2018. She also stated in the complaint that her mobile number is `9048626988', to which the accused sent messages and make phone calls from his mobile phone, which starts with number `78' and ends with

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Crl.M.C.No.912/2024 6 number `45'. The complaint got marked as Ext.P1. Even though she was cross examined at length, nothing extracted to disbelieve her version in any manner. The brother of PW1, examined as PW2 also deposed that the occurrence was in the month of July, 2018. Apart from PW2, PW4, another teacher of the school who worked along with PW1, also supported the version of PW1 regarding stalking and disturbance at the instance of the accused after identifying the accused at the dock.

11. In this matter, the other witnesses also supported the prosecution case and accordingly the trial court found that the accused committed offence punishable under Section 354-D of IPC. Now the question to be considered is; whether any illegality committed by the trial court or by the appellate court in finding that the revision petitioner/accused committed offence punishable under Section 354-D of IPC? Section 354-D of IPC provides as under:

"Section 354-D Stalking:-: (1) Any man who-

(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

(ii) monitors the use by a woman of the internet, email or any other form of electronic communication,

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Crl.M.C.No.912/2024 7 commits the offence of stalking; Provided that such conduct shall not amount to stalking if the man who pursued it proves that—

(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii) in the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on the first conviction with imprisonment of either description for a term which may extend to three years and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years and shall also be liable to fine."

12. Section 78 of Bharatiya Nyaya Sanhita, 2023 is the pari materia provision corresponding to Section 354-D of IPC, dealing with `stalking'. The same provides as under:

(1) Any man who--

(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

(ii) monitors the use by a woman of the internet, email or any other form of electronic communication,

commits the offence of stalking;

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Crl.M.C.No.912/2024 8 PROVIDED that such conduct shall not amount to stalking if the man who pursued it proves that—

(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or

(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii) in the particular circumstances such conduct was reasonable and justified.

(2) Whoever commits the offence of stalking shall be punished on the first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years and shall also be liable to fine."

13. Reading Section 354-D of IPC, it is emphatically clear that any man, who follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman is said to have committed offence of stalking punishable under Section 354-D(2) of IPCor under Section 78 of BNSS. Here the evidence of PW1 supported by the evidence of PW2 and PW4 would show that the accused followed and attempted to contact PW1 to foster personal interaction repeatedly despite a clear disinclination and disinterest by her. Thus the ingredients to attract offence under Section 354-D of IPC is fully

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Crl.M.C.No.912/2024 9 proved by the prosecution beyond reasonable doubt.

14. Adverting to the contention raised by the learned counsel for the revision petitioner that there was delay in lodging the FIR, the same is not acceptable as PW1 had given complaint regarding stalking on 19.07.2018 which started earlier and continued till the date of complaint, even after warning by PW2, the brother of PW1 and the police, before registration of the crime. Addressing the dispute regarding the identity of the accused, the accused is a person known to PW1 and PW2 and when they identified the accused at the dock, the question of identity also doesn't arise.

15. Therefore the conviction imposed by the trial court is perfectly justifiable and no interference in the said finding is warranted by exercising the limited power of revision. Accordingly, the conviction imposed by the trial court and confirmed by the appellate court stands confirmed.

16. Coming to the sentence, Section 354-D(2) of IPC provides that whoever commits the offence of stalking shall be punished on the first conviction with imprisonment of either description for a term

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Crl.M.C.No.912/2024 10 which may extend to three years and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years and shall also be liable to fine. Thus the maximum punishment is extendable upto 3 years and also payment of fine. Considering that the maximum punishment is extendable upto 3 years and payment of fine, imposing of 4 months imprisonment and fine of Rs.2,000/- (Rupees Two thousand only) would only be justified in the facts of the case and, therefore, no interference is called for in the sentence also.

17. Accordingly, this Revision Petition fails and the same is dismissed.

Registry shall forward a copy of this order to the jurisdictional court for information and to execute the sentence. Sd/-

(A. BADHARUDEEN, JUDGE)

rtr/

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