Delhi District Court
State vs Amit Sharma on 28 February, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDL. SESSIONS JUDGE (FTC)-01, CENTRAL,
TIS HAZARI COURTS, DELHI
SC No.461/2017 CNR No. DLCT01-008951-2017
FIR No.644/2015
U/s 356/379/328/354/354-B/509/506 IPC
P. S. Timar Pur
STATE VERSUS AMIT SHARMA
(i) SC No. of the case : 461/2017
(ii) Date of commission of offence : 02.05.2015
(iii) Name, parentage and address : Amit Sharma
of accused S/o Sh. Rajender
Kumar
R/o H. No.U-7,
Second Floor,
Laxmi Nagar,
Delhi-92.
(iv) Offences complained of : U/s 356/379/328/
354/354-B/509/506
IPC
(v) Plea of the accused : Pleaded not guilty
(vi) Final order : Acquittal
(vii) Date of such order : 28.02.24
Date of Institution : 06.06.2017
State vs. Amit Sharma Page 1 of 23
FIR No.644/2015
U/s 356/379/328/354/354-B/509/506 IPC
P. S. Timar Pur
Date of Judgment reserved on : 23.02.24
Date of Judgment : 28.02.24
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION :-
1. The present case was registered on the complaint of Ms. PG date of which is mentioned in the receipt as 25.08.2015 which is Ex.PW5/A. It is submitted by the complainant that she was staying in Delhi since 6 months for the preparation of IAS competitive examination. She was searching for accommodation at Nehru Vihar.
On 02.05.2015 around 5:00 PM the accused Amit Kumar Sharma had asked her that he can get the complainant / PW-4 a room / accommodation as the accused had good acquittance with his landlord. To increase the confidence in PW-4 the accused had stated that he is also preparing for IAS examination and he is also staying at A-Block- 434, Third Floor, Nehru Vihar, Delhi. The complainant was helpless as she was in search of accommodation since many days and therefore she came under influence of the talk by the accused. The accused had taken the complainant to his abovesaid room and asked to wait for about sometime as his landowner will come in half hour. The accused brought the tea for the complainant in the said room and had taken tea brought by the accused from a tea shop outside the said accommodation. After taking tea the complainant had got State vs. Amit Sharma Page 2 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur unconscious. The complainant had mark-sheet of her school with her. After sometime she gained her consciousness then she had found that her clothes were not in proper order. When she confronted the accused that how she got unconscious then the accused forcibly caught the complainant and tried to kiss her and started moving his hand on the chest of the complainant. Somehow the complainant got relieved from the clutches of the accused and at that time the accused had obstructed the complainant and shown his mobile phone which were showing obscene photo of the complainant which were taken by the accused. Then the accused had told the complainant that he loves the complainant very much and if the complainant does not accept whatever is told by the accused then he will upload the obscene photo on inter-net and get the complainant defamed due to which the complainant would not be in a position to show her face anywhere. The accused had also snatched her mark-sheet and asked the complainant to come back tomorrow with the threat that failing which he will upload the photo on the inter-net. He had told complainant to collect the mark-sheet tomorrow. On this threat the complainant got feared due to her helplessness and for the sake of her reputation and left the place. On 03.05.2015 the complainant came back again on which the accused had caught the complainant and tried to tear off the clothes of the complainant. The accused had placed his hands on the chest of the complainant and tried to physically forcibly impose himself on the complainant. When the complainant had protested then State vs. Amit Sharma Page 3 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur the accused had thrown back abuses on the complainant and somehow the complainant had ran away from the spot. The complainant had got shocked due to which she could not tell this incident to anyone. The accused is resident of House No.21, New Colony, Adilavad, Kagaz Nagar, Telangana, Andhra Pradesh and his 3 mobile numbers are also disclosed. The complaint is Ex.PW5/A which was received by SHO Timar Pur on 25.08.2015. On the complaint FIR Ex.PW1/A was registered by PW-1 at about 7:50 PM on receipt of rukka. Endorsement of PW-1 on rukka is Ex.PW1/B and the certificate under Section 65B of Evidence Act of such correct registration of FIR is Ex.PW1/C. The copy of FIR and rukka was handed over to SI Harender Kumar/PW-5. PW-5 had investigated the case and got the statement of complainant recorded under Section 164 Cr. P C which is Ex.PW3/D recorded by learned MM-06, North District, Rohini Court, Delhi /PW-3. The PW-4 was produced before learned MM after the marking of application to her by learned Link MM. The application is Ex.PW3/A. The voluntariness of the statement of PW-4 is Ex.PW3/C and the statement under Section 164 Cr. P. C. is Ex.PW3/D. The certificate of correctness of recording of statement is Ex.PW3/E and the copy of this statement was supplied to IO on moving of application Ex.PW3/F.
2. The IO PW-5 had investigated the case, submitted the chargesheet before the Court, the cognizance was taken and the State vs. Amit Sharma Page 4 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur accused was summoned. Charge was given to the accused on 15.11.2017 under section 328/354/354B/356/379/506/509 IPC to which accused had pleaded not guilty and claimed trial. Prosecution had led PW-1 to PW-5 as its total witness and statement of accused was recorded under Section 313 Cr. P. C. on 21.02.24. Accused has not preferred to lead evidence in defence.
3. Final arguments are heard from the State and the accused and the charge-wise findings are discussed below.
4. Learned Counsel for the accused relied upon the following citations:
1. Ashok Sirpaul vs. Central Bureau of Investigation 2017 (3) JCC 2028 of the Hon'ble High Court of Delhi; and
2. Venu Madhava K & M/s Four Seasons Engergy Ventures Pvt Ltd vs. The State (NCT of Delhi) & Indian Potash Ltd 2017 (4) JCC (NI) 276
5. The first offence against the accused persons is under Section 354/34 IPC which is regarding assault by use of criminal force to women with intent to outrage her modesty. The relevant ingredients of the above Section 354 IPC are laid down in citation in Appeal (crl.) 278/1997 titled as Vidyadharan Vs. State of Kerala dated 14.11.2003 from Hon'ble Supreme Court of India and the relevant paras of which are reproduced here as under:
State vs. Amit Sharma Page 5 of 23 FIR No.644/2015U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur "In order to constitute the offence under Section 354 mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention having such outraged alone for its object. There is no abstract conception of modesty that can apply to all cases. (See State of Punjab v. Major Singh (AIR 1967 SC63). A careful approach has to be adopted by the Court while dealing with a case alleging outraged of modesty. The essential ingredients of the offence under Section 354 IPC are as under:
(i) that the person assaulted must be a woman;
(ii) that the accused must have used criminal force on her, and
(iii) that the criminal force must have been used on the woman intending thereby to outrage her modesty.
Intention is not the sole criteria of the offence punishable under Section 354 IPC, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her witness should receive same weight. In the instant case after careful consideration of the evidence, the trial Court and the High Court have found the accused guilty. As rightly observed by the Courts below Section 3 (1)(xi) of the Act which deals with assaults or use of force on any woman belonging to scheduled Caste or Scheduled Tribe with intent to or dishonour or outrage her modesty is an aggravated form of the offence under Section 354 IPC. The only difference between Section 3 (1)(xi) and Section 354 is essentially the caste or the tribe to which the victim belongs. If she belongs to Scheduled Caste or Scheduled Tribe, Section 3 (1)(xi) applies. The other difference is that in Section 3 (1)(xi) dishonour of such victim is also made an offence. Section 448 provides for punishment relating to house trespass. In order to sustain the conviction under Section 448 IPC it must be found that the intention of the accused was to commit an offence or to intimidate, insult or annoy the complainant. There must be unlawful entry and State vs. Amit Sharma Page 6 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur there must be proof of one or other of the intentions mentioned in Section 441 IPC. In the case at hand evidence clearly establishes the commission of offence punishable under Section 448."
6. Hon'ble High Court of Calcutta (Appellete Side) in case titled Gobinda Ghosh vs The State Of West Bengal on 9 February, 2022 IN C.R.A. 152 of 2018 has held as under:
(vi) Surprisingly enough, the Learned Trial Judge convicted the appellant under Section 354B of the Indian Penal Code. Section 354B is the penal provision for assault or use of criminal force to a woman with intent to disrobe. It runs thus:-
"354B. Assault or use of criminal force to woman with intent to disrobe. - Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine".
Careful reading of Section 354B suggests that even if an accused does not have any intention to commit rape, he may be held guilty for committing the offence of disrobing a woman. Even in Section 354B it is not required for the prosecution to State vs. Amit Sharma Page 7 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur prove that the victim was actually disrobed use of criminal force with the intent to disrobe by the accused is sufficient to bring home the charge under Section 354B of the Indian Penal Code.
Now the Learned Trial Judge did not frame any charge under Section 354B of the Indian Penal Code causing thereby prejudice to the appellant because he did not get any opportunity to understand or explain for which he was being tried. Section 354B of the Indian Penal Code is not a lesser offence of Sections 376/511 of the Indian Penal Code. Therefore, the Learned Trial Judge committed a gross error in convicting the appellant under Section 354B of the Indian Penal Code taking aid of Sub- Section 4 of Section 222 of the Code of Criminal Procedure.
7. The relevant provisions of law are reproduced as under:
356. Assault or criminal force in attempt to commit theft of property carried by a person.--
Whoever assaults or uses criminal force to any person, in attempting to commit theft on any State vs. Amit Sharma Page 8 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur property which that person is then wearing or carrying, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
379. Punishment for theft.--
Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
506. Punishment for criminal intimidation.-- Whoever commits, the offence of criminal intimidation shall be punished with imprison ment of either description for a term which may extend to two years, or with fine, or with both;If threat be to cause death or grievous hurt, etc.-- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to State vs. Amit Sharma Page 9 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
509. Word, gesture or act intended to insult the modesty of a woman.--
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.
8. It is noticed that the examination in chief of PW-4 was recorded on 27.09.2019 and the entire case of the prosecution rests on the statement of PW-4. After recording of part examination in chief of PW-4 the further examination in chief was deferred as PW-4 was not feeling well during her such deposition. Then the examination in chief of the witness was State vs. Amit Sharma Page 10 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur deferred for 16.12.2019, 22.10.2019 and 23.10.2019. The witness Vikas Sehgal was absent on 22.10.2019 despite service. However the prosecutrix PW-4 did not appear though the IO was present on 22.10.2019. Learned PO was on leave on 16.12.2019.The witness remained absent on 15.02.2020. Thereafter the matter had to be adjourned on 05.09.2020 due to Corona Pandemic. The witness Vikas Sehgal had expired report of which was received before the Court on 26.03.2021. It is recorded in order dated 04.04.2022 that PW-4 /the prosecutrix had left her last known address and had shifted to some unknown place without leaving her contact on which IO was summoned who was cross examined and discharged. Again process on PW-4 received with the report that she was not found at the given address however she was contacted through WhatsApp and would be coming at another date as she was attending last rites of some person. This fact is recorded in order dated 20.09.2022. Summons were issued to witness PW-4 through IO and the witness was served on WhatsApp. The phone call of PW-4 was attended by her friend stating that the witness is in Malaysia. It is recorded in order dated 15.12.2022 that the witness has not been appearing for one reason or the other and it was further recorded that it appears that PW-4 is evading the process of the Court. Fresh process was issued and the witness was also informed telephonically but PW-4 did not disclose her current address. PW-4 had stated on phone State vs. Amit Sharma Page 11 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur call that she will appear on her own before the Court but she did not appear on 03.04.2023 despite such oral undertaking on which bailable warrants were issued against her for a sum of Rs.1000/- which were received unexecuted on 21.08.2023. Fresh bailable warrants were also received unexecuted with the report of DCP. It was observed in order dated 01.11.2023 that the witness PW-4 is not traceable despite grant of numerous opportunities to the prosecution and no further opportunity was granted after 01.11.2023. Since the star witness was not examined in chief in complete nor her cross examination was done therefore no useful purpose would be served for issuing repeated summons in a 5 years old matter. Hence PE was closed by the order of the Court on 01.11.2023. Statement of accused was recorded under Section 313 Cr. P. C. and accused had preferred not to lead any DE.
9. PW-2 is Nodal Officer from Vodafone Mobile Service who had produced CAF Ex.PW2/A of mobile number of the accused with copy of Aadhaar Card deposited at the time of issuing of such mobile number. Attested copy of CDR is Ex.PW2/B and certificate under Section 65B of Indian Evidence Act is Ex.PW2/C. The certificate was not given by PW-2 but by some other person Sh. Pradeep Singh who had left the service and therefore this certificate is not proved on record as to the correctness of the record produced. PW-2 cannot say that who is State vs. Amit Sharma Page 12 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur the actual user of the mobile phone. PW-5 had admitted in cross examination that the late witness Sh. Vikas Sehgal had told him that he never saw the prosecutrix visiting the rented room and the complainant also refused to get herself medically examined as the incident is old. The call record and location are not proved.
10. It is noted that even when the incident is old however the accused can be brought to the book though there is delay in registration of FIR. However the complainant has categorically deposed against the accused. IO had failed to seize the mobile of the accused and by such examination if there was any obscene pictures in the mobile phone of the accused. The location of the accused and the prosecutrix is not collected by the IO on the said date and time or any certificate is produced to show that if such location was destroyed. Hence the said evidence was not destroyed and IO had not collected the same nor produced the direct evidence before the Court. Apart from this prosecutrix had not appeared before the present Court to complete her examination in chief and also she did not appear for cross examination in absence of which it is settled law that evidence as got recorded by the prosecutrix could not be believed and therefore could not be relied upon. The necessary law in this regard is reproduced hereasunder:
Hon'ble High Court of Delhi in case titled Venu State vs. Amit Sharma Page 13 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur Madhava K & Anr. vs The State (Nct Of Delhi) & Anr. on 1 December, 2017 in CRL.M.C. 2463/2013 & CRL.M.A. Nos. 9529/2013, 14694/2015 has held as under:
31. The aforesaid section manifestly gives purely discretionary authority to a Criminal Court, firstly, by enabling it at any stage of an enquiry, trial or proceeding under the Code
(a) to summon any one as a witness, or
(b) to examine any person present in Court, or
(c) to recall and re-examine any person whose evidence has already been recorded.
Secondly, it is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case.
This is a supplementary provision enabling, and in certain circumstances imposing on the Court, the duty of examining a material witness who would not be otherwise brought before it. It is not only the prerogative but the duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice. It is the duty of the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.
State vs. Amit Sharma Page 14 of 23 FIR No.644/2015U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur
32. The object of Section 311 Cr.P.C. is that, there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. This section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. However, it has to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.
33. The examination of a witness means as laid down in Section 137 of The Indian Evidence Act, 1872, his examination-in-chief, his cross-examination and his re-
examination. It follows that the provision that a witness shall be examined means not only that he shall be examined-in-chief but also that he should be permitted to be cross-examined and re-examined.
34. Further, examination-in-chief of a witness alone without his cross-examination is incomplete statement of witness and is not State vs. Amit Sharma Page 15 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur evidence under the Indian Evidence Act.
Whole of evidence, i.e. examination-in-chief and cross- examination, is to be read together for correct appreciation to find out truth there from cross-examination being a part of evidence, while judging veracity of statement of a witness.
35. The judgment of the Apex Court in case Radhey Shyam Garg vs. Naresh Kumar Gupta; 2009 (3) JCC (NI) 204 is relevant, which is reproduced as under:-
"13. Examination in terms of the provisions of the Indian Evidence Act envisages examination in chief, cross-examination and re-
examination, as would appear from Sections 137 and 138 thereof. A person whose evidence has been taken by way of an examination in chief by way of affidavit, keeping in view the statutory scheme noticed both in the Code of Civil Procedure as also in the Code of Criminal Procedure, there cannot be any doubt whatsoever that a person intends to summon a witness who had filed his affidavit would be only for the purpose of his cross-examination."
36. The very purpose of Section 137 of Evidence Act and Section 311 Cr.P.C. would be defeated if the opportunity to cross-examine a witness is not given to the either of the party.
11. The next ingredient which the prosecution has to prove State vs. Amit Sharma Page 16 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur is the ingredient under Section 328 IPC the law regarding which is discussed and laid down in citation titled as Sunil Mishi @ Silly vs. State of NCT of Delhi in CRL. A. 610/2013 & Harmeshlal s/o Ajit Singh vs. The State of Maharashtra 2016 ALL MR (Cri) 1980. The relevant paras are reproduced hereinunder:
30. Section 328 I.P.C. reads thus :-
"Causing hurt by means of poison etc, with intent to commit an offence. Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating, or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
31. A perusal of the aforesaid section would show that the following elements are essential to constitute an offence under Section 328 IPC:-
i) Some person or persons should administer or cause to be taken by any person any poison or stupefying, intoxicating or unwholesome drug, or other thing and;
ii) The intention of the person or persons mentioned in (i) should be to cause hurt to the person concerned, or should be to commit or to facilitate commission of an offence or there should be knowledge on the part of the person or persons that the result of his act or their act was likely to cause hurt to the concerned persons.
32. Both these elements should exist conjunctively, then and then alone would the offence be complete and the person or persons, as the case may be, would be guilty of the offence contained in this section.
State vs. Amit Sharma Page 17 of 23 FIR No.644/2015U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur Xxxxxxxxxxxxx
38. Dealing with the effect of non cross-examination, Supreme Court in Laxmibai (dead) Thr. LRs and Anr. v. Bhagwantbuva (dead) Thr. LRs and Ors., AIR 2013 SC 1204 observed as under:-
"40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226; State of U.P. v. Nahar Singh (dead) and Ors., AIR 1998 SC 1328; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.) AIR 2001 SC 3207; and Sunil Kumar and Anr. v. State of Rajasthan, AIR 2005 SC 1096)."
Xxxxxxxxxx
43. Hon'ble Supreme Court in Ganesh Lal v. State of State vs. Amit Sharma Page 18 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur Rajasthan, (2002) 1 SCC 731 elaborately discussed regarding the presumption laid down under Section 114 Evidence Act:
"12. Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public private business, in their relation to facts of the particular case. Illustration (a) provides that a man who is in possession of stolen goods soon after the theft may be presumed by the Court to be either the thief or one who has received the goods knowing them to be stolen, unless he can account for his possession. The presumption so raised is one of fact rather than of law. In the facts and circumstances of a given case relying on the strength of the presumption the Court may dispense with direct proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and wisdom underlying Section 114. Where offences, more than one, have taken place as part of one transaction, recent and unexplained possession of property belonging to deceased may enable a presumption being raised against the accused that he is guilty not only of the offence of theft or dacoity but also of other offences forming part of that transaction."
xxxxxxx Harmeshlal
9. Once the presence of the appellant in the company of the complainant from Chandrapur through drinking of tea by complainant given to him by the appellant till the time the complainant woke up from his slumber only to find himself as left stranded by the appellant is established, a situation of drawing presumption by application of Section 114 of the Indian Evidence Act arises. Section 114 lays down that the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Therefore, the presumption would be that only the appellant was responsible for drowsiness of State vs. Amit Sharma Page 19 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur the complainant which led to his slipping into unconscious state and it was intentionally induced by the appellant by administering him some stupefying or unwholesome drug. This presumption could have been rebutted by the appellant by bringing on record some explanation or some circumstances showing a probability that there may have been some other person involved in the case, who may have been responsible for drowsiness and unconscious state of the complainant. But, there is neither any explanation nor any circumstance brought on record in order to probablise the defence of the appellant that he had got nothing to do with the complainant. In fact, the defence of the appellant is of total denial, but as stated earlier, he has failed to establish that he had no connection with the complainant whatsoever, rather his presence with the complainant all throughout from Chandrapur till the time the complainant regained his consciousness after being into state of unconsciousness has been established in a reasonable manner and the presumption arising therefrom has not been rebutted by him.
10. Administration of substance or drug had its own consequence in this case which was in the nature of rendering the appellant incapacitated thereby fulfilling the second ingredient of the offence punishable under Section 328 I.P.C. The second ingredient is about administering a poison or stupefying substance etc. with an intention to cause hurt or injury or commit an offence or facilitate commission of an offence or with the knowledge that the act is likely to result in causing of hurt. Hurt as defined in Section 319 IPC is bodily pain, disease or infirmity. Unconsciousness is a mental and physical condition of a person which incapacitates him completely in the sense that he is incapable of doing anything. Dictionary meaning of the term 'infirmity' is physical or mental weakness (See: Concise Oxford Dictionary, Indian Edn. p.729). If physical or mental weakness or both make a man infirm, his being in unconscious state will make him all the more infirm. Therefore, inducing unconsciousness of a person by means of a poison, stupefying substance etc. as contemplated under Section 328 IPC amounts to causing of hurt.
11. Learned Counsel for the appellant has strenuously argued that as there was no medical examination of the appellant, nothing can be said with any amount of certainty that the tea State vs. Amit Sharma Page 20 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur that was given to the complainant was mixed with any stupefying substance. It is true that no medical examination of the complainant has been carried out. But, we have to take into account the attending circumstances which rendered redundant the conduct of the medical examination of the complainant. According to the version of the complainant, the substance or drug administered to him in the evening of 01/01/2012 had its effect on his mind and body as a result of which he went into state of unconsciousness and came out of it only in the morning of 02/01/2012. As seen from the evidence of P.W.-7 A.P.I. Prakash Masal, who recorded the first information report, the complainant was in a dilemma as to whether the FIR should be lodged at Chandrapur or at Nagpur and ultimately it was lodged in the night of 03/01/2012 at Nagpur. By this time it was too late in the day to refer the complainant for any medical examination. It was obvious that by that time whatever effect the substance or the drug had on the mind and body of the complainant may have been weaned away. In these circumstances the medical examination of the complainant had become redundant. Therefore, I find that circumstances of the case have offered reasonable justification for absence of medical examination of the complainant in this case, which must be appreciated. Then, what remains is the testimony of P.W.-1 Vasant and I have already found that the core part of his testimony is reliable. There is no reason for the complainant to falsely implicate the appellant in this case. No probable explanation has been given by the appellant for leaving the complainant in unconscious condition some time in the night of 01/01/2012 till early morning of 02/01/2012 and, therefore, by way of adverse inference, it has to be concluded that the appellant was responsible for drowsiness and unconsciousness state of the complainant, which was induced by some substance or drug administered through tea to the complainant by him.
Xxxxxxx 11.1 The first ingredient is that accused person should administer or cause to be taken such unwholesome substance or State vs. Amit Sharma Page 21 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur thing on PW-4. The prosecutrix had reported the matter dated 02.05.2015 and the obscene photographs were shown to PW-4 by accused in his mobile phone on the same day with the threat to her to come on next day. Hence the complaint was lodged by prosecutrix before the police vide Ex.PW5/A and FIR on which was lodged on 25.08.2015. Hence there is considerable difference between 02.05.2015 and 25.08.2015 and of course the effect of unwholesome substance or thing must have been lost during the said period. However the effect of administration of such unwholesome substance or thing could be conveniently looked into if the IO could have collected relevant evidence available on the face of it which are the obscene photo on the mobile phone of the accused shown to PW-4 on 02.05.2015. IO had not even bothered to collect the said photo from the mobile phone of the accused. The intention also which is part of second ingredient of Section 328 IPC could be gathered after looking into such photographs and there software attributes. Both the ingredients must satisfy conjunctively and in absence of the relevant evidence it cannot to said that any such offence was caused by the accused persons. The oral deposition of the PW-4 cannot be relied upon in the absence of cross examination and her further non-appearance. Hence it is held that the prosecution has miserably failed to prove ingredients of Section 328 IPC against the accused and therefore the accused is held entitled to the benefit of doubt under all the State vs. Amit Sharma Page 22 of 23 FIR No.644/2015 U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur offences against which he is charged with.
12. In such view of the matter there is absence of sufficient material/ evidence on record by way of proof to satisfy any ingredient of any of the offence against which the accused is charged with. Hence it is held that the prosecution has failed to prove the offences against the accused.
13. In view of above, it is held that prosecution has failed to discharge burden of proof that the accused has committed offence under Section 356/379/328/354/354-B/509/506 IPC. Hence the accused Amit Sharma is acquitted of the offence charged under Section 356/379/328/354/354-B/509/506 IPC against him. Accordingly, accused Amit Sharma stands acquitted. His earlier personal bond is cancelled and surety is discharged and documents, if any, be returned to the surety and endorsement on security documents is allowed to be de-endorsed. In terms of Section 437A Cr. PC, accused has furnished his bail bonds as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
Digitally signed by JOGINDER Announced in the open Court PRAKASH JOGINDER PRAKASH NAHAR on 28.08.24 NAHAR Date: 2024.02.28 15:36:59 +0530 (JOGINDER PRAKASH NAHAR) Additional Sessions Judge (FTC-I) Tis Hazari Court/Delhi/28.02.24 State vs. Amit Sharma Page 23 of 23 FIR No.644/2015
U/s 356/379/328/354/354-B/509/506 IPC P. S. Timar Pur