While striking the right chord and taking a most pragmatic approach, the Nagpur Bench of Bombay High Court in a most learned, laudable, landmark, logical and latest oral judgment titled Amit vs State of Maharashtra & Anr. in Criminal Appeal No. 364 of 2022 with Criminal Appeal No. 515 of 2022 and cited in Neutral Citation No.: 2024:BHC-NAG:14232 that was pronounced as recently as on December 5, 2024 has minced just no words to hold in no uncertain terms that a solitary instance of following a girl would not be sufficient to make out the offence of stalking. It must be noted that the Nagpur Bench after perusing the facts of the case and all the evidence before it acquitted the appellants who were accused of stalking a 14-year-old girl under Sections 354D of the IPC. Very rightly so!
By the way, the Single Judge Bench comprising of Hon'ble Mr Justice GA Sanap who authored this oral judgment was most forthcoming in making it indubitably clear that the prosecution must be able to prove that the victim was repeatedly or constantly followed, watched or contacted…either directly or through electronic, digital media in order to attract the offence of stalking. More to the point, the Bench was most unequivocal in holding that:
It is to be noted that in order to attract the offence of stalking, the prosecution must prove that the accused repeatedly or constantly followed, watched or contacted a child either directly or through electronic, digital media. In view of this mandatory requirement of the offence of stalking, a solitary instance of following a victim would not be sufficient to make out this offence. Absolutely right!
At the very outset, this brief, brilliant, bold and balanced oral judgment sets the ball in motion by first and foremost putting forth in para 1 that:
These two appeals arise out of the judgment and order dated 03.06.2022, passed by the learned Extra Joint District Judge and Additional Sessions Judge, Akola, in Sessions Trial No. 113/2020 whereby the learned Judge convicted the appellants/accused nos.1 and 2 for the offences punishable under Sections 354, 354-A, 354-D, 452 r/w Section 34 and U/s 506(I) of the Indian Penal Code and under Section 7 punishable under Sec.8 and offence under Sec. 11 punishable under Section 12 of the Protection of the Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act for short). Both the appellants/accused are sentenced as follows:
- Rigorous imprisonment for five years and to pay fine of Rs.5,000/- and in default to suffer SI for three months for the offence punishable under Section 354 of the IPC.
- Rigorous imprisonment for three years and to pay fine of Rs.5,000/- and in default to suffer SI for three months for the offence punishable under Section 354-A of the IPC.
- Rigorous imprisonment for three years and to pay fine of Rs.5,000/- and in default to suffer SI for three months for the offence punishable under Section 354-D of the IPC.
- Rigorous imprisonment for seven years and to pay fine of Rs.10,000/- and in default to suffer SI for six months for the offence punishable under Section 452 read with Section 34 of the IPC.
- Rigorous imprisonment for two years and to pay fine of Rs.5,000/- and in default to suffer SI for three months for the offence punishable under Section 506(I) of the IPC.
- Rigorous imprisonment for five years and to pay fine of Rs.10,000/- and in default to suffer SI for six months for the offence under Section 7 punishable under Section 8 of the POCSO Act.
- Rigorous imprisonment for three years and to pay fine of Rs.5,000/- and in default to suffer SI for three months for the offence under Section 11 punishable under Section 12 of the POCSO Act.
For clarity, the Bench clarifies in para 2 stating that:
The appellant in Criminal Appeal No. 364/2022 is accused no.2 and the appellant in Criminal Appeal No. 515/2022 is accused no.1. In this judgment, they would be referred as accused no.1 and accused no.2.
To put things in perspective, the Bench envisages in para 3 while elaborating on facts of case that:
Background Facts
The informant is the mother of the victim girl. The victim girl, on the date of the incident was about 14 years of age. The prosecution case, which can be unfolded from the report and other materials is that the informant with her two daughters is residing at village Khadka, Tah. and Dist. Akola. Accused nos.1 and 2 are the residents of village Khadka. They are residing in the same locality. In the year 2020, the victim was studying in 7th Standard at Chindhaji Maharaj Vidyalaya, Kaulkhed Jahangir. Accused nos. 1 and 2 are friends. It is stated that in the month of January, the victim girl informed her mother that when she had been to the river to fetch water, both the accused followed her.
Thereafter, one day, accused no.1 told her that he likes her and wants to marry with her. The victim girl told him that he is like her brother and he should behave like a brother. On being informed about this incident by the victim, the mother went to the parents of accused nos.1 and 2 and requested them to give an understanding to their sons.
Quite significantly, the Bench points out in para 17 of this progressive judgment that:
The next important aspect that needs consideration is as to the role attributed to accused nos.1 and 2 and the offences proved against them by the prosecution. I have minutely perused the evidence. On perusal of the evidence, I am satisfied that as far as accused no.2 is concerned, the evidence on record is not sufficient to prove the charge against him. Perusal of the evidence of the victim girl would show that no specific role has been attributed to accused no.2. Accused no.2 is the friend of accused no.1.
The basic allegation of outraging the modesty of the victim girl has been made against accused no.1. It has come on record that when accused no.1 committed the offence inside the house of the victim, accused no.2 was standing outside. The victim girl has not attributed any role at that time to accused no.2. Similarly, no specific allegation has been made with regard to the stalking against accused no.2. It is seen that the accused no.2 was roped in because he is the friend of accused no.1. Perusal of the evidence would show that it is not sufficient to prove the charge against accused no.2.
Most significantly, the Bench encapsulates in para 18 what constitutes the cornerstone of this notable judgment postulating precisely that:
Perusal of the evidence would show that it is not sufficient to prove the offence of stalking against accused no.1 as well. Section 354-D of the IPC and Section 11 r/w Sec.12 of the POCSO Act provide the punishment for the offence of stalking. It is to be noted that in order to attract the offence of stalking, the prosecution must prove that the accused repeatedly or constantly followed, watched or contacted a child either directly or through electronic, digital media. In view of this mandatory requirement of the offence of stalking, a solitary instance of following the victim would not be sufficient to make out this offence.
It is worth noting that the Bench notes in para 19 that:
The victim has narrated the incident dated 26.08.2020 in great detail in her evidence before the Court, in her Section 164 Cr.P.C. statement before the learned Magistrate and in her statement recorded before the CWC. The victim has stated that on 26th, her mother had gone to Akola. Her younger sister was in another room. She has stated that at that time, the accused came in front of her house. She heard knocking on the door. She has stated that as soon as she opened the door, accused no.1 pushed the door and entered the house. She has categorically stated that accused no.1 gagged her mouth. Accused Akash (A1) pressed her breasts. She has stated that she raised the shouts.
Accused no.1 threatened her with dire consequences in case the incident was reported to anybody. She has stated that her younger sister on hearing shouts came to her. The accused ran away from the spot. As far as accused no.2 is concerned, no role has been attributed to him. It is stated that he was standing outside the house of the victim. As far as occurrence of this incident is concerned, PW4, the younger sister of the victim, has corroborated the evidence of the victim. PW4 has stated that on that day, her mother had gone to Akola. She and her sister (victim) were present in the house. She has stated that she heard the knocking on the door. Her sister went to open the door. She has stated that she heard the shouts of her sister. Thereafter, she went there. She has stated that she saw that both the accused were running. She has stated that thereafter, the victim narrated the entire incident to her. She has deposed about it.
Most forthrightly, the Bench holds in para 20 that:
On perusal of the evidence of the victim (PW2) and her sister (PW4), I am satisfied that this evidence inspires confidence. I have no reason to discard and disbelieve their evidence. Both the sisters have been subjected to searching and grueling cross-examination. Perusal of their cross-examination would show that no material has been elicited in their cross-examination to doubt their credibility and trustworthiness. I have no reason to discard and disbelieve their evidence.
On the basis of this evidence, the offence under Section 354-A of the IPC and under Section 7 r/w Section 8 of the POCSO Act has been made out. In my view, therefore, the conviction for these offences does not warrant interference. Similarly, the offence proved against accused no.1 is house trespass after preparation for committing an offence, which is punishable under Section 451 and not under Section 452 of the IPC. On going through the record, I am satisfied that the offence made out against accused no.1 would be under Section 451 and not under Section 452 of the IPC. The conviction for other offences namely, 354, 354-D, 452 r/w Section 34 and 506(I) of the IPC and under Section 11 punishable under Section 12 of the POCSO Act, cannot be sustained. It is further pertinent to note that as far as the incident of outraging the modesty of the victim girl is concerned, accused no.2 cannot be held guilty. He did not play any role in it. The offences are proved against accused no.1 only. The accused no.2 deserves to be acquitted of all the offences.
In sum, we thus see that the Nagpur Bench of Bombay High Court very rightly concluded in this leading case that a solitary instance of following a girl would not be deemed sufficient to make out the offence of stalking. We thus see that as the ingredients of offence of stalking were not made out, the appellants were thus rightly acquitted. No denying!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
