Delhi High Court Sets Aside Conviction Under Sections 354A, 354D and PoCSO; Accused Acquitted

A bench of Justice Chandrasekharan Sudha heard an appeal under Section 374 Cr.P.C. by the sole accused against a trial court judgment of 28.02.2017 and sentence order of 21.03.2017, which had convicted him under Sections 354A and 354D IPC and Section 12 of the Protection of Children from Sexual Offences Act, 2012 (PoCSO Act). The appeal contested both the findings of fact and the correctness of the legal characterisation of the acts as sexual harassment, stalking and PoCSO offences.

The High Court allowed the appeal, set aside the conviction and sentence and acquitted the appellant under Section 235(1) Cr.P.C., directing that his bail bond stand cancelled. The Court held that the prosecution failed to prove the ingredients of the offences charged and that the facts, even if some incident occurred, did not satisfy statutory requirements for Sections 354A, 354D or Section 12 PoCSO. The Court, in its reasoning, observed: “Further, PW4, who is none other than the father of the victim does not support the prosecution case despite the prosecutor examining him by putting leading question pursuant to the permission granted by the Court under Section 154 of the Indian Evidence Act, 1872. It appears that some incident did happen. The accused might have threatened and used abusive language. But this does not satisfy the ingredients of the offences charged. The alleged intimidation is not a minor offence when compared to the offences under Sections 354A, 354D IPC or Section 12 PoCSO Act. Therefore, taking recourse to Section 222(2) Cr.P.C. also, the appellant/ accused cannot be found to have criminally intimidated PW2 or committed an offence coming under Section 506 IPC as he has not been charged for the said offence. That being the position, it can only be held that the prosecution has failed to establish the offences charged against the accused. Hence, the trial court apparently went wrong in convicting the accused for the offences punishable under Sections 354A, 354D IPC and Section 12 of the PoCSO Act.”

Background The prosecution case alleged that the accused repeatedly stalked and harassed the victim (PW2) for several months and on 14.02.2014 abused and threatened her near her house; an FIS and FIR were recorded and a chargesheet lodged under Sections 354A, 354D IPC and Section 12 PoCSO Act. PW2’s FIS, recorded the same day, stated: “For the last 5 months, a person named Ajay Prasad ... has been following me while I travel to and from my office. I told him several times not to follow me ... he kept threatening me, saying that if I didn't talk to me, he would kill me.” The trial court convicted and sentenced the accused to concurrent terms (including rigorous imprisonment up to two years for stalking under Section 354D) and granted benefit under Section 428 Cr.P.C.

On appeal, defence argued false implication arising from a prior monetary dispute between families, material contradictions in witness testimony, and that the victim was not a minor at the time of the incident. Prosecution relied on the testimony of PW2, PW3 (her sister) and PW4 (her father) and school records produced by PW5 (Principal) indicating a date of birth of 13.05.1996 for PW2. The High Court examined the record and evidence: it found the materials unsatisfactory to prove PW2’s minority; noted inconsistencies between PW2’s account and PW4’s evidence (including that PW4 was at work at the relevant time); recorded that PW4 did not support the prosecution despite being examined by leading questions under Section 154 Evidence Act; and applied statutory definitions and elements of Sections 354A, 11/12 PoCSO and 354D IPC to the proven acts.

The Court analysed Section 354A’s clauses and the PoCSO definition of sexual harassment (Section 11) and concluded that the alleged acts did not demonstrate the requisite “sexual intent” or deliberate conduct falling within clauses (i)–(vi) of Section 11; nor did the proven conduct satisfy the statutory ingredients of Section 354A. On Section 354D, while recognising some following or abusive conduct, the Court found that the evidence did not establish repeated pursuit despite a “clear indication of disinterest” as required. The Court relied on authorities on evidence procedure (including permitting leading questions under Section 154) but found the core factual matrix insufficient to sustain conviction. The appeal succeeded; the impugned conviction and sentence were set aside, the accused was acquitted and his bail bond cancelled. No interim directions or additional relief were issued.

Case Details: Case No.: CRL.A. 424/2017 Case Title: Ajay Prasad v. The State NCT of Delhi Appearances: For the Petitioner(s): Mr. Madan Lal Kalkal, Advocate For the Respondent(s): Mr. Utkarsh, APP for State with SI Chempat Singh, P.S. Gazipur Amicus for Victim: Mr. Moksh Arora, Advocate