Gujarat HC Upholds Section 354 Conviction, Refuses Probation for Offence Against Teenage Girls
Confirming concurrent findings of two courts below, the Gujarat High Court rejected a probation plea and ordered two men convicted of outraging modesty to surrender within eight weeks.
Justice Nisha M. Thakore, sitting singly at the High Court of Gujarat at Ahmedabad, dismissed a criminal revision application filed by two men convicted of outraging the modesty of two teenage girls in December 2008. The revision was directed against concurrent findings of the Judicial Magistrate First Class, Jetpur and the Additional Sessions Judge, Rajkot at Jetpur, both of whom held the applicants guilty under Section 354 read with Section 114 of the Indian Penal Code. After independently re-appreciating all twelve prosecution witnesses and the defence witness, the court found no ground to interfere with the conviction. It also refused to extend the benefit of Section 4 of the Probation of Offenders Act, 1958, holding that crimes against women involving moral turpitude do not merit such relief, and directed the applicants to surrender before the jail authority within eight weeks.
The Incident and the Proceedings Below
On 27 December 2008, at around 8:00 AM, two young women — the primary victim (aged approximately 17) and her paternal cousin sister (aged approximately 18) — left their home in Thana Galol village, Taluka Jetpur, to fetch drinking water from the village Gaushala situated across the river. The two accused, Rajeshbhai Ashokbhai Gohel (Luhar) and Nareshbhai @ Dakubhai Madhavjibhai Solanki, followed them on a motorcycle, whistled, winked at them, and made a vulgar solicitation. When the victims did not respond, the accused stopped the motorcycle and grabbed the primary victim's left arm. Both girls raised an alarm, causing the accused to flee on their motorcycle into the interior of the village.
The FIR bearing I-CR No. 198 of 2008 was registered at Jetpur Taluka Police Station at around 15:40 hours the same day, for offences under Sections 354, 504, and 114 of the IPC. Accused No. 2 was arrested on 31 December 2008 and Accused No. 1 on 2 January 2009. The charge-sheet was filed on 1 April 2009 in respect of offences under Sections 354, 504 read with Section 114 IPC.
The trial Court convicted both accused under Section 354 read with Section 114 IPC and sentenced each to two years rigorous imprisonment with a fine of Rs. 1,000. It acquitted them under Section 504 IPC, finding no evidence of specific abusive words intended to provoke a public breach of peace. On appeal, the Additional Sessions Judge, Rajkot at Jetpur, in Criminal Appeal No. 11 of 2014, reduced the sentence to one year simple imprisonment but enhanced the fine to Rs. 10,000 each, while confirming the conviction. The present criminal revision application was filed in 2019. A coordinate bench admitted it on 24 January 2019 and stayed execution of the conviction and sentence pending disposal.
Grounds Urged by the Applicants
Counsel for the applicants pressed several grounds. They argued that the accused were not previously known to the victims by name and no test identification parade (TI parade) was conducted by the Investigating Officer, making identification unreliable. They pointed to a seven-hour delay between the incident and the registration of the FIR. They also raised questions about who actually narrated the complaint to the police, noting that the mother of the primary victim admitted in cross-examination that her husband had narrated the incident during FIR registration. The defence submitted that the place of the alleged incident was not truly isolated — residential houses, a bus stop, and commercial cabins existed on the opposite bank of the river — and therefore independent witnesses ought to have been present and examined.
Counsel further argued that the trial court and the appellate court had convicted the accused on presumption rather than on proof beyond reasonable doubt, and that the appellate court had failed to independently re-appreciate the evidence. As an alternative, counsel urged the court to extend the benefit of probation under Section 4 of the Probation of Offenders Act, 1958, emphasising that the incident occurred in 2008, the revision was being heard in 2026, the sentence had remained suspended throughout, and the applicants were married with children and engaged in labour work. Reliance was placed on a coordinate bench order of 17 September 2025 in Criminal Revision Application No. 643 of 2009 where Section 354 IPC convicts were granted probation, and on the Supreme Court's decision in Milind s/o Ashruba Dhanve v. State of Maharashtra, 2026 (0) AIJEL-SC 76829.
The State's Response
The Additional Public Prosecutor, Ms. Krina Calla, submitted that concurrent findings of fact based on appreciation of evidence existed across both courts below, and revision jurisdiction does not permit a wholesale re-examination of those findings. She argued that both victims had identified the accused before the court in the dock and had maintained a completely consistent account throughout their examination and cross-examination. The Investigating Officer had explained the absence of independent witnesses by reference to dense winter mist and low visibility at 8:00 AM in December. The FIR delay of seven hours was natural for a rural family dealing with the molestation of young daughters, involving deliberation, consultation with elders, and the social stigma of reporting such incidents.
On the FIR narration issue, the APP pointed out that no question had been put to the Police Station Officer who registered the FIR, and that the mother's admission must be read in full: she had also stated that her daughter had named the accused as fellow villagers. The APP opposed the probation prayer given the nature of the offence.
Re-appreciation of Evidence by the High Court
Justice Thakore undertook an independent re-appreciation of the entire evidence. She examined the deposition of the primary victim (Exh. 14), who identified both accused in court, gave a consistent account of the incident, and explained the need to fetch water from the Gaushala despite the domestic tap connection by stating that the municipal supply was hard and brackish. The victim's explanation was corroborated by the Investigating Officer, who confirmed that village women routinely preferred Gaushala's borewell water for drinking. This explanation was also consistent with the cross-examination admission of the defence's own witness — the retired Talati-cum-Mantri of Thana Galol (Exh. 38) — who agreed that village residents publicly visited the Gaushala borewell for regular domestic consumption.
The court considered the evidence of the cousin sister (Exh. 18) and found it consistent with the primary victim's account in all material particulars. The omission in her initial police statement of the technical word “harassment” was treated as minor rather than fatal, as the core substance of her deposition remained unshaken. The father's evidence (Exh. 19) and mother's evidence (Exh. 33) were also scrutinised. On the question of who narrated the complaint during FIR registration, the court accepted the explanation that the father, being a fellow villager familiar with the accused, had provided their formal names to the Police Officer, while the victim and her mother stood outside. The court found this natural in a rural setting and not a ground to discard the prosecution case.
On the absence of a TI parade, the court noted that both victims had stated they recognised the accused only by sight as co-villagers before the incident, without knowing their formal names. Both subsequently identified the accused before the court. The court found this sufficient in the circumstances, particularly given that the accused had not disputed their presence at the time and place of the offence during the trial.
On the seven-hour FIR delay, the High Court agreed with the appellate court's reasoning that rural families, when the honour of young daughters is involved, typically deliberate, consult community elders, and approach the police slowly. This was not treated as a suspicious circumstance.
The court relied on the trial court's application of the Supreme Court's decision in Vidyadharan v. State of Kerala, (2004) 1 SCC 215, holding that the offence under Section 354 IPC is complete when the accused possesses clear knowledge that their physical acts — winking, whistling, vulgar remarks, and grabbing a woman's arm — are likely to outrage her modesty. Absolute criminal intent is not the sole test.
Two panch witnesses who had stood as panchas to the arrest panchnama turned hostile before the trial court. The court noted this but found the prosecution case not materially weakened, given the cogent and consistent testimony of both victims and the Investigating Officer.
Rejection of the Probation Prayer
Justice Thakore turned next to the alternative prayer for probation under Section 4 of the Probation of Offenders Act, 1958. The court had called for a report on the antecedents of the applicants and found they were not involved in any other offences. The coordinate bench decision of 17 September 2025 relied on by the applicants had also involved a Section 354 IPC conviction, but the court distinguished it by reference to binding Supreme Court authority.
The court applied the Supreme Court's decision in Ajahar Ali v. State of West Bengal, (2013) 10 SCC 31, which held directly that the benefit of the Probation of Offenders Act is not available to persons convicted of offences against women and children, describing such accused as undeserving of probation regardless of individual circumstances. The court also applied State of Uttar Pradesh v. Shri Kishan, (2005) 10 SCC 420, for the proposition that offences involving moral turpitude which have great impact on social order require exemplary treatment, and that imposing meagre sentences merely on account of lapse of time is counter-productive to the interests of society.
The court observed that the victims were barely 17 and 18 years old at the time of the offence. It noted that incidents of molestation of minors are systematically under-reported because families fear social stigma, and that perpetrators deliberately target young persons who can be easily intimidated. The court rejected the submission that the lapse of nearly 18 years since the incident, or the fact that the applicants had settled into family life, warranted extending the benefit of probation.
Order
The revision application was dismissed. The judgments and orders of the Judicial Magistrate First Class, Jetpur in Criminal Case No. 360 of 2009 dated 23 July 2014, as modified by the Additional Sessions Judge, Jetpur in Criminal Appeal No. 11 of 2014 dated 17 January 2019, were upheld and confirmed. The conviction under Section 354 read with Section 114 IPC, with a sentence of one year simple imprisonment and a fine of Rs. 10,000 each, stands.
The order of suspension of sentence dated 24 January 2019 was vacated. The applicants were directed to surrender before the concerned jail authority within eight weeks from 6 July 2026. If they fail to surrender within that period, the concerned court will be at liberty to issue non-bailable warrants to secure their presence. The records and proceedings were directed to be returned to the courts below.