1. This case has a checkered history. Initially, the proceedings commenced on the basis of a written complaint dated August 23, 2014, submitted by the de facto complainant, who is the father of the victim. The allegation was that the accused, a driver by profession, used to pick up students from their respective residences and drop them at the Army Public School in Siliguri. On the relevant date, the de facto complainant’s 14-year-old daughter was alone in the appellant’s pool car, during which journey the appellant driver outraged her modesty. Upon reaching school, she reported the incident to the Principal and other teachers. Upon receiving information, her father arrived at the school, took her home, and subsequently lodged an FIR against the driver.

2. Following the initiation of the case under Section 354 of the Indian Penal Code (IPC) and Section 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, an investigation was conducted. Upon completion of the investigation, charges were framed under Section 354 IPC and Section 12 of the POCSO Act. The appellant pleaded not guilty and claimed trial.

3. The prosecution examined five witnesses. Following the completion of witness depositions, the appellant was examined under Section 313 of the Code of Criminal Procedure (Cr.P.C.) after receiving the statutory warning. Thereafter, the Learned Trial Judge delivered a judgment convicting and sentencing the appellant under Section 12 of the POCSO Act, 2012.

4. Aggrieved by this, the appellant preferred a Criminal Appeal before the Hon’ble High Court. The Hon’ble High Court set aside the conviction and remanded the case back to the Trial Court with instructions to deliver a fresh judgment based on the available evidence on record regarding the charge under Section 354 IPC. The High Court explicitly observed that the ingredients of Section 12 of the POCSO Act were not attracted and that Section 354 IPC was the appropriate section under which the trial should proceed. This order was passed by the Hon’ble High Court at Calcutta in CRA 676 of 2016 on August 9, 2019.

5. Following these directions, the Learned Trial Judge rewrote the judgment afresh and passed an order of conviction against the appellant on December 23, 2019, under Section 354 IPC. The appellant was sentenced to undergo rigorous imprisonment for two years along with a fine of Rs.10,000, and in default, to undergo further rigorous imprisonment for six months. Against this judgment of conviction and sentence dated December 23/24, 2019, the present criminal appeal has been filed.

6. Mr. Satarudriya Mukherjee, Learned Advocate appearing for the appellant, submitted that the appellant has been falsely implicated by the de facto complainant and his daughter because the appellant refused the victim’s request to allow her to drive the vehicle. According to Mr. Mukherjee, there are several anomalies in the prosecution's case:

7. Although the victim was usually accompanied by three other girls to school, she was alone on that particular day; however, the Investigating Officer (IO) failed to verify school registers or other records to confirm whether the other three students were present at school that day.

8. Because this fact was not verified by the IO, the victim’s statement under Section 164 Cr.P.C. and her court deposition should not be treated as sacrosanct.

9. The Investigating Officer did not seize the school attendance register.

10. The teachers and the Principal, to whom the incident was first narrated, were never cited as witnesses in the case.

11. The victim's clothing, which could have indicated resistance against the attempt to outrage her modesty, was never seized.

12. Furthermore, Mr. Mukherjee emphasized the following points during arguments:

               a) Travel Duration: The distance between the victim’s residence and the school is approximately 2 km, which takes 10 to 15 minutes by car. However, on that day, the victim was picked up around 6:40 AM and reached the vicinity of the school at approximately 7:30 AM. b) Lack of Inquiries on Arrival: When both the accused and the victim reached the school past the reporting time, the accused was neither stopped nor questioned about the delay. c) Absence of Visible Distress: Following the alleged incident of resistance, no signs of struggle or emotional disturbance were visible on her face or clothing, and no one questioned her regarding any indications of a struggle. d) Non-Examination of Co-Travelers: The IO never examined the regular co-travelers of the victim during the investigation. e) Conduct After Incident: Following the alleged attempt to outrage her modesty, the victim did not flee the spot. Even assuming her statement is taken as sacrosanct—that she hit the accused with a register—she still chose to sit beside the accused rather than fleeing to safety, which contradicts basic human instincts.

13. Mr. Mittal, Learned State Counsel, submitted that the judgment of conviction and sentence was rightly passed against the appellant. He submitted that the evidence demonstrates force was applied against the victim, drawing the Court’s attention to Sections 349 and 351 IPC in conjunction with Section 354 IPC, which governs the outraging of a woman’s modesty.

14. Regarding the non-availability of the three other girls in the vehicle, Mr. Mittal highlighted the appellant’s statement during examination under Section 313 Cr.P.C., where the appellant himself admitted that the victim was alone in the vehicle on that date.

15. Addressing the victim’s Section 164 Cr.P.C. statement and trial deposition, the State Counsel argued that any minor discrepancies should not be given undue weight, given that the victim was 14 years old and reported the incident immediately upon reaching school. He argued that a young girl would not put her modesty at stake by inventing false allegations on flimsy grounds.

16. Mr. Mittal further emphasized that:

               i. The offence took place in an isolated area, leaving no scope for independent eyewitnesses or an opportunity for the victim to flee the vehicle.

               ii. The pool vehicle was a pickup van designated to transport four children from different locations; picking up passengers from multiple points accounts for the time gap highlighted by the defense.

               iii. No defense witnesses were examined on behalf of the appellant.

               iv. Rejection of the argument regarding non-seizure of clothes, as the nature of such an allegation is not dependent on the condition of the victim's attire.

               v. The victim's deposition inspires confidence, and when testimony is reliable, further corroboration is unnecessary.

Court’s View

17. Upon reviewing the record and the impugned judgment, I find that despite initial confusion regarding whether the three co-travelers were present, the appellant's examination under Section 313 Cr.P.C. clearly reveals his admission that the victim was alone in the vehicle on that date. This admission renders the examination of school registers or co-travelers redundant.

18. It is true that the Principal and teachers were not cited as prosecution witnesses. However, because the incident occurred outside school premises inside the vehicle, the prosecution successfully proved that only the appellant and victim were present inside. While the IO could have cited school officials, their omission does not diminish the veracity of the FIR or the victim's testimony.

19. Regarding the time delay during the 2 km commute, the vehicle routinely picked up four children from different locations, and the defence brought no evidence to show expected travel times for such a route. Moreover, the victim testified that the appellant stopped the vehicle in an isolated spot, held her hands, and attempted to molest her, prompting her to strike him with a register before he threatened her. This sequence of events—stoppage, molestation attempt, resistance, and threats—reasonably accounts for the delay. Furthermore, the defence failed to cross-examine PW-1 or PW-2 regarding school rules or arrival times, nor did they lead any evidence on this point.

20. The victim reported the incident to her peers and teachers immediately upon arrival. The defence’s theory that she falsely implicated the driver merely because he refused to let her drive the vehicle is implausible, as no young girl would put her modesty at stake on such a trivial pretext.

21. A comparative examination of the victim's statements reveals variations:

               i. In her Section 164 Cr.P.C. statement recorded on August 29, 2014, she stated: "I was alone in the vehicle with the driver. Then all of a sudden when the vehicle reached between No. 17 of Panighata Tea Garden... the driver touched and held my hands and body with ill motive. I had a register in my hands and with that I assaulted him and he left me, but the driver threatened me with dire consequences..."

               ii. In her deposition before the Court on June 5, 2015, she stated that the driver "tried to molest me and kiss me."

22. While the Judicial Magistrate's recording does not explicitly mention an attempt to kiss, the trial deposition includes it. The Learned Trial Judge attributed this discrepancy to the victim's tender age. However, since her court deposition occurred within a year of the incident—when a 14-to-15-year-old’s memory remains sharp—the addition of "tried to kiss me" represents an improved version of the prosecution’s case. The Trial Judge erred in giving undue weight to this improved version.

23. Nevertheless, while giving a clean chit to this improved detail is flawed, it does not constitute a fatal illegality or perversity in the overall judgment. Even excluding the improved detail, sufficient evidence remains to establish that the appellant used criminal force to outrage the victim's modesty. Therefore, the conviction under Section 354 IPC must be upheld.

24. Regarding the sentence, rigorous imprisonment for two years is overly harsh given that the driver did not proceed further after the victim resisted. Accordingly, the sentence of imprisonment is reduced from two years to one year of rigorous imprisonment. The fine of Rs.10,000 and its default clause of six months' rigorous imprisonment remain unaltered.

25. Accordingly, the Criminal Appeal is disposed of by the following order:

               a) Criminal Appeal (CRA 6 of 2020) is dismissed with the modification that the appellant's sentence under Section 354 IPC is reduced to one year of rigorous imprisonment along with a fine of Rs.10,000 (and six months' default rigorous imprisonment).

               b) The appellant is directed to surrender before the Learned Trial Judge within one month from the date of this judgment to serve out the remaining sentence. If he fails to surrender, the Learned Trial Judge shall issue a warrant of arrest in accordance with law.

               c) Let a copy of this judgment, along with the Trial Court record, be remitted to the Learned Trial Court. The judgment dated December 23, 2019, stands affirmed subject to the modification of sentence.

               d) A copy of this judgment shall also be sent to the District Magistrate, Jalpaiguri, for information and necessary action.

               e) Urgent certified copies of this judgment, if applied for, be supplied to the parties upon compliance with requisite formalities.