Delhi District Court
Rajesh Kumar vs State Of Nct Of Delhi on 9 January, 2023
IN THE COURT OF SHRI CHANDER MOHAN,
ADDITIONAL SESSIONS JUDGE07, SOUTH DISTRICT, SAKET
COURTS, NEW DELHI
CRIMINAL APPEAL NO. 349 of 2019
CNR NO. DLST010059002019
IN THE MATTER OF:
1. Rajesh Kumar
S/o Sh. Heera Lal
R/o B101, Pratap Garden
Bindapur, Uttam Nagar
New Delhi
2. Prem Kishore @ Akshay
S/o Hemraj
R/o B2/8, Harijan Basti,
Kondli, Delhi .......Appellants
Versus
State of NCT of Delhi ........Respondent
Instituted on : 02.09.2019
Reserved on : 24.12.2022
Pronounced on : 09.01.2023
CA. No. 349/19 Rajesh Kumar & Anr. Vs. State Page No 1 of 15
JUDGMENT
1. This is an appeal against the judgment dt. 25.07.2019 and order on sentence dt. 05.08.2019 passed by Ms. Saloni Singh, Ld. MM, whereby both the appellants were convicted for the offence U/s 509 IPC and sentenced to undergo SI for one month and a fine of Rs, 1000/ each.
2. The facts necessary for the disposal of the present appeal are that complainant Ms. Manisha Kumari accused the appellants of eve teasing by lodging the following complaint dt. 27.06.2014 (ExPW1/A) with PS Saket, New Delhi.
"Main TJS (DLF MALL) Saket mein sales girl executive jo meri dukaan ke aage ek dukkan par teen ladke Rajesh, Akshay, Gaurav mera MALL ke andar ek maheene se mera peeche karte hai wah mujh par gandi gandi commnents maarte hai aur mujh par haste hai. Jo maine pahle bhi teenoko samjhaya par wah nahi maante aur mujh par comment maarte rahate hai. Jiske karan aj bhi maine subha ka samay mere piche teeno aye the maine unhe mana kiya tha ki mere peecha mat are jo main ajj Launch ke samay 2 baje apni shop se bahar gai thi or jo teeno mere peeche aye Ashiwarya Rai aur jor jor se mujh par hasne lage aur maine mana kiya to bole tu to pagal hai. Aur mera majak udhane lage aur phir maine 100 no par phone kar diya...."
3. FIR bearing no. 446/2014 was registered on the above CA. No. 349/19 Rajesh Kumar & Anr. Vs. State Page No 2 of 15 allegations and after conclusion of the investigation, chargesheet was filed before the Trial Court on 03.02.2016 and after taking cognizance, all the accused persons were summoned. The appellants appeared before the Court on the said date and copy of the entire charge sheet was supplied to them in compliance of Section 207 of Code of Criminal Procedure, 1973. Opportunity was granted to the accused to make submissions on the point of charge and based on a prima facie case, vide order dt. 07.07.2017, charge under Section 354A & 354D read with 34 of IPC was framed against appellants.
4. During trial, prosecution examined the complainant as PW1 and the police officials, who participated in the investigation, namely, Head Constable (HC) Sher Singh as PW2, SubInspector (SI) Gurdeep Raj as PW3 and SubInspector (SI)/Investigation Officer (IO) Amit Solanki as PW4 and placed on record the complaint as Exhibit PW1/A; arrest memo and personal search memo of the accused persons as Exhibit PW1/B to Exhibit PW1/G; Daily Dairy (DD) Entry no. 20A as Exhibit PW3/A (OSR); present FIR No. 446/2016 as Exhibit P1; statement of the complainant recorded under section 164 of CrPC as Exhibit P2; rukka as Exhibit PW 4/A and the site plan as Exhibit PW4B. On completion of prosecution evidence, the appellants Rajesh Kumar and Prem Kishore were examined by the Court under Section 313 read with Section 281 of CrPC, wherein all incriminating evidence/material relied upon by the prosecution was put to the accused, which were denied by the accused stating that the complainant has filed a false case against them because of a misunderstanding. The appellants choose not to lead any evidence despite opportunity It is pertinent to mention here that the accused Gaurav Sharma expired on 09.11.2018 CA. No. 349/19 Rajesh Kumar & Anr. Vs. State Page No 3 of 15 during the trial proceedings and the case stands abated qua the said accused.
5. After hearing the arguments, both the apellants were acquitted for committing the offence U/s 354A & 354D IPC, however, they were convicted of an offence U/s 509 IPC and sentenced to undergo SI for one month and a fine of Rs, 1000/ each.
6. Aggrieved by the above order of conviction and sentence, the present appeal has been preferred.
7. The main emphasis of the submissions made on behalf of the appellants is that appellants Rajesh Kumar and Prem Kishore@Akshay were charged for an offence U/s 354A and 354D and without reformulation/amendment of the charge, they have been convicted for an offence U/s 509 IPC. According to counsel for the accused, this has caused a serious prejudice. It is also contended by the counsel that the Trial Court has failed to appreciate the evidence in its correct perspective and also that there are serious contradictions between the statement of witnesses. As per counsel for the appellants, complainant failed to specify date and time of the allegations, further, Ld. Trial Court failed to take into account the contradictions in the statements of the complainant and other PWs as to where her statement was recorded, location of the store, number of the police persons who came to the place after knowledge of the incident etc. Hence, as per counsel benefit of the doubt ought to have been given to the accused persons.
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8. On the contra, it is contended on behalf of the State that appellant has not suffered any prejudice because of his conviction U/s 509 IPC and further that the contradictions pointed out by counsel for the accused are not material and therefore may be conveniently overlooked.
9. I have heard Ld. APP for the State and Counsel for the accused persons.
10. The issue of non framing of charge or some defect in drafting of charge came before the supreme court in case titled as Rafiq ahmed @ Rafi Vs. State of U.P Criminal Appeal No. 656 of 2005. In the said case the accused persons were initially charged for offence U/s 396 IPC r/w 201 IPC but were convicted for an offence U/s 302 IPC. The following observations of the Hon'ble Supreme Court in the said case are extracted below: The Learned Counsel appearing for the appellant has not been able to demonstrate any prejudice which the appellant has suffered in his right to defence, fair trail and in relation to the case of the prosecution. Once the appellant has not suffered any prejudice, much less a serious prejudice, then the conviction of the appellant under Section 302 IPC cannot be set aside merely for want of framing of specific/alternate charge for an offence punishable under Section 302 IPC. It is more so because the dimensions and facets of an offence under Section 302 are incorporated by specific language and are inbuilt in the offence punishable under Section 396 IPC. Thus, on the application of principle of 'cognate offences', there is no prejudice caused to the CA. No. 349/19 Rajesh Kumar & Anr. Vs. State Page No 5 of 15 rights of the appellant.
11. In the above case the Hon'ble Supreme Court also took note of Lakhjeet Vs. State of Punjab [1994 Suppl. (1) SCC (crl). 173] in para 17 of the Judgment. Relevant extract is reads as under: "wherein the accused was charged with an offence U/s 302 IPC and convicted and sentenced for the said offence, both by the Trial Court as well as the High Court. In appeal, a Division Bench of this Court considered whether the offence could not converted and the appellant could be convicted for an offence U/s 306 IPC. Having regard to the evidence adduced by the prosecution and the answer of the accused to the questions put to him under Section 313 of the Cr.P.C, the court was satisfied that the accused had fair notice of the allegations to attract an offence U/s 306 IPC and as such there was no denial of fair trial to the accused. Finally, the court convicted him of an offence U/s 306 IPC".
12. The ratio of above judgments appears to be that if the accused has not suffered in his right to defence, no prejudice has been caused to him and further the incriminating evidence appearing against him was put to him in his statement U/s 313 CrPC i.e., the accused clearly understands the nature of the offence for which he has been tried then any error or omission in framing the charge will not vitiate the trial.
13. Counsel for the appellants has argued that the above principle will apply only where a charge is framed for a higher offence and ultimately CA. No. 349/19 Rajesh Kumar & Anr. Vs. State Page No 6 of 15 conviction takes place for a less grave offence, however, in the present case, the charge was framed against the accused for offence U/s 354A & 354D and they were convicted for 509 IPC which is not less grave because both carry maximum imprisonment for a period of 3 years; stated simply they are equally grave and therefore, the above principle will not apply to the facts of the present case.
14. No doubt, the rule laid down in the above precedents have been applied to the cases where ultimately conviction took place for offences which were less grave with which accused were charged in terms of punishment, however, reading of the memo of charge framed in the present case would show that there was no error in mentioning the ingredients of the offence or even the acts and conducts of the accused which constitute the offence U/s 509 IPC but the Ld .Trial Court only applied the wrong section of IPC.
For better appreciation, the charge framed by the Ld. Trial Court on 07.07.2017 is extracted below:
Notice/Charge 1 (a)I, Ms. Saloni Singh, Metropolitan Magistrate, (Mahila Court02), Saket Courts (South District), New Delhi, do hereby charge you Mr. Rajesh Kumar, aged 27 years S/o Sh. Heera Lal, R/o B101, Pratap Garden, Bindapur, Uttam Nagar, New Delhi.
(b)On Section 354A That you on 27.06.2014 at around 2:00 PM at DLF Mall, Ground Floor, Saket, New Delhi falling within the territorial jurisdiction of PS Saket, with common intention made unwelcome gestures by following her and CA. No. 349/19 Rajesh Kumar & Anr. Vs. State Page No 7 of 15 calling her Aishwarya Rai and passing lewd and vulgar comments and after that started laughing loudly and called her "pagal" and have been for the past one passing lewd and vulgar comments at the complainant and thereby committed an offence punishable U/s 354 A/34 of Indian Penal Code, 1860 and within the cognizance of this Court.
(c) And I hereby direct that you be tried to this Court on the said charge.
2(a) On Section 354D That you on 27.06.2014 at around 2:00 PM at DLF Mall, Ground Floor, Saket, New Delhi, falling within the territorial jurisdiction of PS Saket, followed the complainant and had been following her for the past one month and passing lewd remarks with common intention to foster personal interaction with the complainant despite her clear indication of disinterest and thereby committed an offence punishable under section 354D/34 of IPC and within the cognizance of this court.
Charge framed against other accused is also on similar lines.
15. Perusal of the above notice would show that the specific words and conduct of the accused/appellant was put to the them, although the Court applied Section 354 A and 354 D. Accused were given clear descriptions of the allegations against them. During the course of Trial also the complainant reiterated the said allegations and full opportunity was given to the accused to cross examine on the said allegations. Even in statement U/s 313 CrPC, the said allegations were specifically put to the accused including the CA. No. 349/19 Rajesh Kumar & Anr. Vs. State Page No 8 of 15 complaint and statement U/s 164 CrPC of the complainant. Hence, it is evident that accused suffered no detriment or disability while defending themselves. The only error committed by the Ld. Trial Court was that instead of Section 509 IPC, the charge of Section 354 A & 354 D was mentioned. Hence it can be seen that there was only error in respect to the form and not substance.
16. Section 464 CrPC specifically takes care of omission to frame or absence of, or error in a charge. Section 464 CrPC reads under:
1) No finding sentence or order by a Court of competence jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on he ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may
a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point of immediately after the framing of the charge;
b) In the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it think fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall CA. No. 349/19 Rajesh Kumar & Anr. Vs. State Page No 9 of 15 quash conviction.
17. The observations of the Hon'ble Supreme Court in the case of Willie (Willaim) Slaney Vs. State of Madhya Pradesh [AIR 1656 SC 116] which dealt with a question as to whether omission to frame a charge was a curable irregularity are relevant (same were relied by the Hon'ble Supreme Court in para 13 of the Rafiq Ahmed @Rafiq vs .State of UP, Criminal Appeal No. 656/2005) In that case the accused was charged for committing an offence punishable under section 302 IPC but the court finally convicted him of an offence punishable under section 304 Part II. The Court, while examining if the accused had been prejudiced in his defence and the validity of his conviction, held as under:
Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person get a full and fair trial along certain well established and wellunderstood line that accord with our notions of natural justice. If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and CA. No. 349/19 Rajesh Kumar & Anr. Vs. State Page No 10 of 15 he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.
18. In view of the above discussions, this court is of the opinion that appellant had proper notice regarding the offence for which they were being tried, there was no failure of justice and they did not suffer any prejudice due to the error or omission in the charge.
19. This court has observed that while drafting the present appeal, Ld. Counsel for the accused has not taken note of the amendments in punishment for section 354, 509 IPC etc have been modified by Act 13 of the 2013 with effect from 03.02.2013. The present incident has taken place on 27.06.2014, therefore, the amended Act was applicable and punishments quoted by the counsel for the convict in his appeal for various sections relate to the period before the amendment.
20. On merits, the argument of counsel for the appellants that the complainant failed to specifically name the accused pales into insignificance as she has correctly identified the accused persons. Similarly, not specifically mentioning as to which accused uttered the embarrassing remarks is not fatal when it is seen that the incident occurred in the year 2014 and evidence of CA. No. 349/19 Rajesh Kumar & Anr. Vs. State Page No 11 of 15 complainant was recorded after 3 years and this gap properly explains this omission. Infact, witness has herself deposed that she doesn't remember the names of accused etc due to lapse of time. Similarly, counsel for the accused has failed to mention any contradiction in the statement of witnesses which goes to the root of the matter. As to where the police met her, or discrepancy in arrival of police etc. are minor in nature. The following observations of Hon'ble Supreme Court in Bhagwan Jagannath Markad and Others Vs .State of Maharashtra (2016) 10 SCC 537 are relevant "while appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to effect the credibility of the version of a witness, the court may reject the evidence".
21. Nature of the allegations clearly meet the ingredients of Section 509 IPC. The words addressed to the complainant like "Tu pagal hai, Aishwarya Rai hai", "aree pagal a gyi" and thereafter laughing at her by the accused persons who were working adjacent in front of the shop where she was working clearly were intended to insult her modesty and intrude upon her privacy. Complainant has stood firm in her cross examination. This court has no reason to not believe her testimony Accordingly, the conviction CA. No. 349/19 Rajesh Kumar & Anr. Vs. State Page No 12 of 15 passed by Ld. Trial Court against both the convicts/appellants U/s 509 IPC is upheld.
22. Order on Sentence Appellant Prem Kishore@Aksha is currently aged about 31 years. He has submitted that he is married but has no children. He has old age parents to take care of. He has further submitted that he is the only earning member in his family and working as a food delivery boy in Zomato and earning around 10,000/ per month. He has further submitted that he is not a previous convict and even no case is pending against him Appellant Rajesh Kumar is currently aged about 32 years has submitted that he is married and has two minor school going daughters. He has old age mother to take care of. He has further submitted that he is the only earning member of his family and has a momos stall in Rajapuri Madhu Vihar and earning around 10,000/ per month. He has further submitted that he is not a previous convict and even no case is pending against him.
23. As per counsel for the appellant, considering the above circumstances of the appellants, the sentence of 1 month and fine of Rs. 1,000/ imposed upon them is harsh and unreasonable and since the antecedents of both the appellants/convicts are clean and the offence with which the appellants were charged carries maximum imprisonment of 3 years, therefore, the benefit of probation ought to have been granted.
24. I have heard counsel for the appellants on the point of sentence.
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25. Perusal of the order of sentence dt. 05.08.2019 would reveal that the benefit of probation was declined by the Ld. Trial Court due to the following reasons " The facts and the circumstances of the present case are that the office of the complainant and the accused persons was located at the same place and the accused persons used to eve tease the complainant every time they saw her by passing comments such as "Aishwarya Rai a gyi etc"., and used to laugh loudly on seeing her. The complainant had to undergo this ordeal on a regular basis at her work place. The complainant was very young and with a lot of effort and courage, she may have decided to work. If women face such hostile environment at public areas or near their work places on regular basis, it would act as deterred for the women to step outside their homes. The object of such offences is to not only punish the offender but to create a safe and carefree environment for the women. The effect of this experience of the complainant would probably last for her lifetime. Therefore, considering all the facts and circumstances of he case, the court is of the view that the convicts are not entitled to the benefit of probation.'
26. The court is in agreement with the reasoning of the Ld. Trial Court for not granting benefit of probation to both the appellants. There has to be some deterrence for eve teasing and the facts of the case would show that it was not an isolated incident but the complainant faced harassment CA. No. 349/19 Rajesh Kumar & Anr. Vs. State Page No 14 of 15 from the appellants more than once. However, at the same time this court has noted that the appellants were in their early twenties when the offence was committed by them and an opportunity should be given to them to reform themselves. Further, they are sole earning member of their families. Considering the entire facts and circumstance of the case and nature of the offence and also taking into account the fact that they have faced the trial for about 78 years, this court is inclined to take a lenient view. Accordingly, the sentence awarded by the Trial Court is modified. Both the appellants are directed to undergo imprisonment till the rising of the court and further to pay a fine of Rs. 5,000/ each for committing offence U/s 509 IPC in default of which they shall undergo simple imprisonment for a period of one month.
27. Fine of Rs. 5,000/ deposited by each appellant vide receipt no. 0626601 & 0626602 dt. 09.01.2023.
28. TCR be sent back to Ld. Trial Court with copy of this judgment.
29. Appeal file be consigned to Record Room after due compliance.
Pronounced in the open (CHANDER MOHAN)
Court on 09th January, 2023 Additional Sessions Judge07,
South, Saket Courts, New Delhi
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