Delhi District Court
Shri Shailender Aggarwal vs The State on 11 March, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-014786-2023
CRIMINAL REVISION No.: 561/2023
SHRI. SHAILENDER AGGARWAL,
S/o. Shri. Moolchand Aggarwal,
R/o 10-11/9, Old Nursing Hostel,
Nurses Flats, Hindu Rao Hospital,
Delhi. ... PETITIONER
VERSUS
STATE (GNCT of DELHI) ... RESPONDENT
Date of Institution : 18.10.2023
Date when judgment was reserved : 21.12.2024
Date when judgment is pronounced : 11.03.2025
AND,
CNR No.: DLCT01-015843-2023
CRIMINAL REVISION No.: 593/2023
DR. 'D1',
W/o. Shri. 'A',
R/o. 'XYZ'. ... PETITIONER
VERSUS
1. STATE,
Through Public Prosecutor, GNCTD,
Tis Hazari Courts, Delhi-110054
2. SHRI. SHAILENDER AGGARWAL,
S/o. Shri. Moolchand Aggarwal,
R/o 10-11/9, Old Nursing Hostel,
Nurses Flats, Hindu Rao Hospital,
Malka Ganj, New Delhi-110007. ... RESPONDENTS
Date of Institution : 03.11.2023
Date when judgment was reserved : 21.12.2024
Date when judgment is pronounced : 11.03.2025
1
Identities of the prosecutrix and her other particulars have been deliberately withheld in view of the decisions
in; Birbal Kumar Nishad v. State of Chhattisgarh, 2021 SCC OnLine SC 3464; X v. State of Maharashtra,
2023 SCC OnLine SC 279; and Saleem v. State (NCT of Delhi), (2023) 3 HCC (Del) 365: 2023 SCC OnLine
Del 2190.
CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi)
CR No. 593/2023 Dr. D v. State & Anr. Page No. 1 of 49
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.03.11
16:09:26
+0530
JUDGMENT
1. The present common judgment shall determine the aforenoted criminal revision petitions, preferred in terms of the provisions under Section(s) 397/399/401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C./Code'), bearing; Crl. Rev. No. 561/2023 and Crl. Rev. No. 593/2023. Pertinent to outrightly observe that Crl. Rev. No. 561/2023 has been preferred by Sh. Shailender Aggarwal (hereinafter referred to as the 'accused', as before the Ld. Trial Court), whereas Crl. Rev. No. 593/2023 has been preferred by Dr. 'D' (hereinafter referred to as the 'complainant', as before the Ld. Trial Court ). Notably, both the said criminal revision petitions impugn/challenge the order dated 14.09.2023 (hereinafter referred to as the 'impugned order'), passed by the learned Metropolitan Magistrate-03/Ld. MM-03, Central, (Mahila Court), Central, Tis Hazari Courts, Delhi (hereafter referred to as the 'Ld. Trial Court/Ld. MM'), in Cr. Case No. 8738/2017, titled as; 'State v. Shailendra Aggarwal', arising out of FIR No. 280/2016, PS. Subzi Mandi, under Sections 354/354A/506/323/452/509 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'). Pertinently, by virtue of the impugned order, Ld. Trial Court, while dismissing the applications filed by/on behalf of the accused under Sections 239 and 173(8) Cr.P.C., directed the framing of charges against the accused under Sections 354/354A/354D/451/506/323 IPC. Strikingly, while the accused under his petition has entreated for setting aside of the order of framing of charge and correspondingly, prayed for discharge from the instant proceedings, in contrast, the complainant has impugned the said order/order dated 14.09.2023 of the Ld. Trial Court on the ground that the Ld. Trial Court, while CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 2 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:09:32 +0530 passing the said order, erroneously failed to consider that in the instant case, provisions of Section 376/Section 376/511 IPC ought to have been attracted against the accused and matter deserved committal before the Ld. Sessions Judge.
2. Succinctly, the case of the prosecution is that on 17.09.2017, SI Saris Khan was present at PS Subzi Mandi, when a written complaint was received by her from the complainant, Dr. 'D'. Notably, in her complaint, the complainant inter alia asserted that the accused, namely, Shailender was her distant relative, and that the accused's wife was also employed as staff nurse at Surgical Emergency, Bara Hindu Rao Hospital. As per the complainant, since the accused was her/complainant's distant relative and residing nearby, they/accused and his family used to visit the complainant's house. However, it was proclaimed by the complainant that after some time, the accused started misbehaving with the complainant, besides commenced passing lewd comments and gestures. Correspondingly, as per the complainant, the accused used to also make unwanted physical contact and advances, unwelcome explicit sexual overtures, as well as even used to explicitly touch the complainant's private parts without her consent. It was further avowed by the complainant that as and when, she objected to the illegal/unwelcome acts of the accused, the accused used to intimidate her/the complainant of dire consequences, besides used to threaten to defame the complainant in the society. Concomitantly, as per the complainant, the accused used to demand and request for sexual favors, without her consent and even tried to pounce on her. On 14.09.2016, as per the complainant, the accused forcibly entered into the complainant's house, assaulted her, as well as pushed her/complainant's breasts, CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 3 of 49 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.11 16:09:37 +0530 besides tried to open the knot of complainant's salwar and tried to rape her. It was further proclaimed by the complainant that when she objected to the same and shouted, the accused left her house with a threat that in case, she disclosed the said facts to anyone, he/the accused would defame the complainant. The complainant further asserted that she fathomed courage to informed about the incident to her husband and thereafter, fathomed courage to report the incident to the police. Markedly, on the basis of the complainant's complaint, the instant FIR came to be registered, and investigation ensued.
2.1. Noticeably, during the course of investigation MLC No. 3347/16 of the complainant was got conduced on 17.09.2016, wherein it was inter alia recorded, "...No opinion can be given as the patient refused for her internal examination. Original MLC done by Dr. Shilpa...". Correspondingly, the accused was interrogated pursuant to direction of Ld. ASJ in accused's anticipatory bail application as well as the statement of the complainant under Section 164 Cr.P.C. was recorded before the Ld. MM on 17.09.2016, relevant extracts of which are reproduced as under;
"...मैं उपरोक्त पते पर रहती हूँ, पिछले साल मेरी Sister की Engagement 11/02/15 को Shailender के साले Ankit के साथ हु ई थी, तो Shailender मेरे घर आने जाने लगा । धीरे धीरे Shailender दोस्ती बढ़ाने लगा, Compliments देता, Guitar offer करता, AC वालो को Service के लिए ले आता, Whatsapp Message करता। दिनांक 17/05/15 को जब मेरे पति और मेरे बच्चे घर पर नहीं थे , Shailender घर मे घुस गया और मुझे Hug और Kiss किया और अपना Private Part निकालकर Touch किया, मैनें धक्का देकर उसको हटा दिया, फिर उसने कहा कि किसी को मत बताना, reputation और family destroy हो जायेगी, वचन दिया कि मेरी मर्जीके बिना मुझे कभी Touch नहीं करे गा। 18/05/15 को मैं नें अपने पति को बता दिया, वो Upset हो गये और Shailender को फोन करके कहा कि यह क्या किया, अपनी पत्नी को Divorce दे देगा, तो उसने कहा दे दूंगा। 21/05/15 को Shailender ने मेरे पति से माफी मांगी। दिनांक 12/06/15 को Hospital जाते वक्त Shailender मुझे फिर मिल गया और बात करने के लिए Insist करने लगा। July CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 4 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:09:40 +0530 में मैं Pregnant हो गयी और हमारा मिलना जुलना बन्द हो गया। 15- 20 दिन में वो फोन करता और बात होती। 16/04/16 को मुझे Daughter हो गयी। फिर 15-16/05/16 को Shailender मुझे फिर मिल गया और कहने लगा मैं आपको बहु त सुख दूंगा। फिर 02/08/16 को मैं बहु त रो रही थी और तब मैं नें पति को सब बताया और उन्होनें Shailender को फोन करके बुलाया तो वो Wife Namarta को लेकर आ गया और मैनें Shailender को slap किया। दिनांक 14/09/16 को बच्चे नीचे खेल रहे थे , Mother-in-law छत पर थी तब Again Shailender entered my house and touched my boobs tried to open knot of Salwar and tried to rape me. I shouted and he left my place. फिर मैं नें पुलिस Complaint की और Police कार्यवाही हु ई।..."
(Emphasis supplied) 2.2. Congruently, during the investigation, the IO recorded statements of various witnesses and upon conclusion of investigation, chargesheet was filed upon which, the Ld. Trial Court took cognizance of the offence on 25.07.2017. Strikingly, the IO also filed a supplementary chargesheet before the Ld. Trial Court inter alia containing the FSL report dated 25.04.2019. Pertinently, during the course of proceedings, the accused moved an application under Section 173(8) Cr.P.C. inter alia seeking directions to the IO to submit the transcript of the audio recording, present in the memory card, mobile phone, etc., of the complainant's mobile phone. Concomitantly, application under Section 239 Cr.P.C., seeking discharge was moved on behalf of the accused before the Ld. Trial Court. Markedly, arguments on the said applications as well as on the aspect of charge was addressed by/on behalf of the accused, complainant and the State. Further, as aforementioned, the said applications were dismissed, besides charges under Sections 354/354A/354D/451/506/323 IPC were directed to be framed by the Ld. Trial Court vide order dated 14.09.2023/impugned order. Relevant extracts from the impugned order are reproduced as under;
"...In view of the aforementioned observations laid down in judicial dicta, the court undoubtedly has CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 5 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.11 16:09:44 +0530 power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused is made out and this Court is of the considered opinion that there exists prima facie case against the accused person. The law is well settled regarding the expert opinion to its nature being corroborative piece of evidence as expert witness is not a witness of fact and the opinion is to be analyzed objectively by the Court during the course of trial. Furthermore, in the present matter, the prosecution had tried to procure the CDRs of the complainant and accused but failed to procure the same as they were not found preserved as per TRAI Guidelines for which the documents have been placed on record to discard the allegations of complainant. Moreover the IO has already seized the case property which will be brought during the trial and is for the accused to prove his defence during trial, therefore, no ground exists for taking the transcript on record at this stage, or to direct IO to file the same on record. Already the supplementary chargesheet under Section 173(8) Cr.P.C had been filed by the IO. No case is made out to enter into a detailed appreciation of the evidence intended to be led by the prosecution.
As there are allegations of advancing physical contact by the accused against the complainant of explicit sexual overtures despite her clear disinterest by entering into her house forcefully, assaulted her, pushed her breast, tried to open the knot of her salwar, threatening her with dire consequences, to defame her in case she discloses anything to anyone, touching the private part of the complainant without her consent using criminal force with an intention to outrage the modesty of the complainant by pouncing upon her and contacted her to foster personal interaction repeatedly despite a clear indication of disinterest by her over phone, whatsapp on various occasions i.e., 17.05.2015, 14.09.2016 & 15.05.2016. Charge is accordingly framed against the accused u/s 354/354- A/354-D/451/506/323 IPC and read over to the accused in Hindi to which he pleaded not guilty and claimed trial and no ground exists for directing IO to place on record the transcript as the electronic evidence has already been procured by prosecution agency. As there is no allegations against the accused qua the offence of Section 509 IPC therefore, accused is hereby discharged of offence u/s 509 IPC. Accordingly, both the applications stands disposed of..."
(Emphasis supplied) CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 6 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL Date:
GOYAL 2025.03.11
16:09:48
+0530
3. Learned Counsel for the accused/revisionist,
Shailender outrightly submitted that the complainant initiated several false cases/complaints/FIRs against the accused, including the present FIR, wherein the accused endeavored to raise a defence of alibi (of his absence at the alleged place of occurrence) before the Ld. Trial Court as well as handed over one DVR of his CCTV footage, mobile phone as well as memory card and a pen-drive to the investigating officer/IO of the present case during the course of investigation of the present case. Correspondingly, as per the Ld. Counsel, the accused had also obtained a copy of FSL report along with the CD and other documents, exhibiting that no tampering, alteration or addition has been done in the said mobile phone recording(s), memory card data and DVR of his CCTV footage. However, despite the same, Ld. Counsel asserted that the Ld. Trial Court failed to consider the relevant material brought on record of the Ld. Trial Court, while erroneously framing charges against the accused. In this regard, Ld. Counsel fervently asserted that had the Ld. Trial Court duly considered the material placed on record by the accused, it would be quite lucid the complainant and her husband along with other persons, namely, Ashish and Shyam Gupta, hatched a conspiracy against the accused as well as his family members, to wrongly implicate them in false case. Ld. Counsel further submitted that the Ld. Trial Court failed to appreciate the fact that the IO has not filed the transcript of the aforesaid recordings before the Ld. Trial Court, for which, the accused entreated for further investigation so that material evidence may be brought on record of the Ld. Trial Court, despite which, the Ld. Trial Court mistakenly dismissed the application of the accused, filed under Section 173(8) Cr.P.C. and failed to CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 7 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.11 16:09:51 +0530 consider the true and correct facts of the present case. Even otherwise, it was further submitted by the Ld. Counsel that despite repeated requests of the accused, Ld. Trial Court failed to hear the audio recordings, which is part of the chargesheet, exhibiting malicious implication of the accused in the present case. Correspondingly, as per Ld. Counsel, Ld. Trial Court failed to appreciate the fact that the alleged incident is asserted to have transpired at around 07.00 p.m. on 14.09.2016, however, the relevant CCTV footage, which was perused by the Ld. Trial Court on 26.07.2022, duly proves that the accused had entered into his house at about 18:05:54 hours and left his house at about 20:29:24 hours on the said day, establishing that the accused was present at his house at the alleged time of incident on 14.09.2016. However, despite the same, Ld. Counsel asserted that the Ld. Trial Court passed the impugned order on mere conjunctures, surmises and in contravention of the settled cannons of law, besides being oblivious of the relevant material and facts, deserving the same to be set aside at the outset, as suffering with gross illegality. 3.1. Learned Counsel for revisionist Shailender/accused further contended that the impugned order was passed by the Ld. Trial Court on mere assumptions and that no sound and/or cogent reasons have been delineated thereunder. It was further submitted that while passing the impugned order, the Ld. Trial Court further failed to appreciate that from the material placed on record, even the basic ingredients of the provisions/offence under Section 354/354A/354D/451/506/323 IPC are not even prima facie established against the accused in the instant case. Further, as per the Ld. Counsel, the Ld. Trial Court, while passing the impugned order, did not even consider that there is no evidence or material on CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 8 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:09:54 +0530 record against the accused to proceed with the framing of charges under the said provisions/Sections, besides strenuously reiterated that even the basic ingredients of the said provisions/charges are not attracted against the accused in the instant case. It was further submitted that the Ld. Trial Court failed to give any sufficient cause/reason, while passing the impugned order, being non- speaking as well as passed by the Ld. Trial Court in an extremely casual and cavalier manner. Further, as per the Ld. Counsel, the Ld. Trial Court also failed to give any sound, cogent or justified reasons for passing the impugned order, which adversely affects the rights of the accused. Consequently, the Ld. Counsel prayed that the impugned order, being passed in gross violation of law and settled judicial precedents, deserves to be set aside, outrightly. In support of the said contentions, reliance was placed upon the decisions in; State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568; Sh. Satish Mehra v. Delhi Administration, 1996 (9) SCC 766; and Sunil Kumar v. State & Anr., CRMC No. 512/2017, dated 14.12.2018 (J&K High Court).
4. Per contra, Ld. Counsel for the revisionist, namely, Dr. 'D'/complainant submitted that the Ld. Trial Court passed the impugned order, oblivious of the relevant material/documents placed on record, besides failing to consider the consistent statements/assertion of the complainant before the police officials as well as the Ld. MM in her statements under Section 161 Cr.P.C. and Section 164 Cr.P.C., respectively. In this regard, it was further vehemently argued by the Ld. Counsel that the Ld. Trial Court did not consider the statement of the complainant, recorded under Section 164 Cr.P.C., wherein she explicitly inter alia avowed that on the date of incident, the accused forcibly entered her house, CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 9 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.11 16:09:58 +0530 assaulted her, pushed her breast, tried to open the knot of her salwar as well as tried/attempted to rape her. However, despite the same, as per the Ld. Counsel, charges under Section 376/Section 376/511 IPC were not framed against the accused by the Ld. Trial Court. It was further submitted by the Ld. Counsel that the Ld. Trial Court did not record the contentions raised by/on behalf of the complainant during the course of arguments/proceedings before the Ld. Trial Court, and reiterated that the charges were framed against the accused, without considering the police report and documents sent with it under Section 173 Cr.P.C. and the argument advanced on behalf of victim/complainant. Even otherwise, as per the Ld. Counsel, the framing of charges is not in accordance with the procedure prescribed by the law, besides have been framed in violation of the provisions under Articles 14, 19 and 21 of the Constitution of India. In this regard, Ld. Counsel further asserted that the procedure prescribed under the Code/Cr.P.C. is the 'procedure prescribed by law' within the meaning of the expression under the Constitution, which was not duly complied with/considered by the Ld. Trial Court for the reason that material documents/facts/statements of witnesses were negated by the Ld. Trial Court, while passing the impugned order. It was further submitted that order of framing of charges by Ld. Trial Court/impugned order does not only explicates utter non application of mind by the Ld. Trial Court, rather, also indicates gross violation of law by the Ld. Trial Court. Further, as per Ld. Counsel, Ld. Trial Court wrongly proceeded only under Sections 354/354A/354D/451/506/323 IPC against the accused as ingredients of the Section 376 IPC and/or Section 376 IPC read with Section 511 IPC was sufficiently present in the instant case.
CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi)
CR No. 593/2023 Dr. D v. State & Anr. Page No. 10 of 49
Digitally signed
by ABHISHEK
GOYAL
ABHISHEK
Date:
GOYAL 2025.03.11
16:10:03
+0530
4.1. Learned Counsel for the complainant/revisionist Dr. 'D' further ardently reiterated that there was sufficient material to proceed with the framing of charges against the accused for the offence under Section 376 IPC/Sections 376/511 IPC on the basis of the complainant's statement under Section 164 Cr.P.C. Further, as per the Ld. Counsel, it is not within the domain of the courts to overzealously analyze the material/evidence placed on record in detail at the stage of charge and conclude the entire case even before it begins, to the prejudice the case of the complainant or an accused. Even otherwise, as per the Ld. Counsel, the investigation in the instant case is grossly tainted with malafide, one sided and tilts in favour of the accused, as the investigating agency has not properly followed the correct procedure for the investigation of the case, as per as Punjab Police Rules, 1934 as well as Circular No.444/2016, Standing Instructions/ Circular No. 17 of 2013 & Circular No. 15 of 2015, issued by the Delhi Police. Ld. Counsel for the complainant further submitted that the complainant would suffer irreparably, in case the Ld. Trial Court proceeds with the trial of the said case under wrong legal provisions/sections and it would be great injustice not only with the complainant but also to the criminal justice delivery system. Lastly, it was submitted by the Ld. Counsel that the trial proceedings in the instant case have been grossly delayed to the prejudice of the complainant, by repeated adjournments by the Ld. Trial Court. Accordingly, Ld. Counsel entreated that the impugned order/order dated 14.09.2023, passed by the Ld. Trial Court is liable to be set-aside and the matter may be directed to be committed to Ld. Sessions Court, besides charges under Section 376 IPC and Section 376 IPC read with 511 IPC be added/framed against the accused. In support CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 11 of 49 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.11 16:10:07 +0530 of the said contentions, reliance was placed upon the decisions in; Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, AIR 2018 SC 2039; Aparna Bhatt & Ors. v. State of MP, Crl. Appeal No. 329/2021, dated 18.03.2021 (SC); State of Rajasthan v. Ashok Kumar Kashyap, MANU/SC/0275/2021; Pappu Tiwary v. State of Jharkhand, MANU/SC/0115/2022; Chaitu Lal v. State of Uttarakhand, Crl. Appeal No. 2127/2009, dated 20.11.2019 (SC); Madan Lal v. State of J&K, 11998 Crl.LJ 667; Dr. Atul Krishna v. State of Uttarakhand & Ors., SLP (Crl.) No. 2493/2021, dated 15.09.2021 (SC); Rajinder @ Raju v. State & Anr., Crl. Rev. Pet. 801/2019, dated 27.05.2020 (DHC); Central Bureau of Investigation v. Prem Bhutani & Anr., Crl. Rev. Pet. No. 406/2019, dated 04.04.2022 (DHC); State v. Mohd. Javed Nasir & Ors., Crl. Rev. Pet. 268/2018, dated 23.11.2022 (DHC); Sanikommmu Vijaya Bhaskar Reddy v. State of Andhra Pradesh, Crl. Rev. Pet. No. 148/2022, dated 06.04.2022 (AP High Court); and Pushpendra Kumar Singh @ Puspendra v. State of Jharkhand, Crl.MP 2632/2021, dated 29.08.2024 (Jharkhand HC).
5. Ld. Addl. PP for the State submitted that the impugned order was passed by the Ld. Trial Court after due appreciation of the facts and circumstances of the present case and, as such, deserves no interference by this Court. It was further submitted that all the relevant facts and circumstances were duly considered by the Ld. Trial Court, besides the impugned order was passed by the Ld. Trial Court, wary of the settled judicial precedents and the material brought forth. Ld. Addl. PP for the State further submitted that no illegality/infirmity can be attributed to the impugned order, so as to subject the same to any interference by this Court under this Court's exercise of its revisional CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 12 of 49 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.11 16:10:10 +0530 jurisdiction.
6. The arguments of Ld. Counsel for the accused/revisionist Shailender, Ld. Counsel for the complainant/ revisionist Dr. 'D' as well as that of Ld. Addl. PP for the State have been heard as well as the records, including the Ld. Trial Court record and the judgments cited by/on behalf of the parties have been thoroughly perused.
7. Before proceeding with the determination of the merits of the case/issues posed before this Court, it would be apposite to outrightly make a reference to the relevant provisions under law, in particular, the provisions under law/Section 397 Cr.P.C.2, as under;
"397. Calling for records to exercise of powers of revision - (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation - All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.
(2) The powers of revision conferred by sub-
section (1) shall not be exercised in relation to any 2 Pari materia to Section 438 BNSS, which provides; "438. Calling for records to exercise powers of revision-
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on his own bond or bail bond pending the examination of the record.***Explanation--All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 439.***(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding...." (Emphasis supplied).
CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 13 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:10:14 +0530 interlocutory order passed in any appeal, inquiry, trial or other proceeding..."
(Emphasis supplied)
8. Pertinently, from a perusal of the aforesaid, it is quite evident that the revisional jurisdiction of this Court can be agitated either suo motu or an application of parties, solely in the cases where there is a palpable error, non-compliance of the provision of law, decision of Trial Court being completely erroneous or where the judicial decision is exercised arbitrarily. In this regard, reliance is placed upon the decision of the Hon'ble Supreme Court in Amit Kumar v. Ramesh Chander, (2012) 9 SCC 460 , wherein the Hon'ble Court while explicating the various contours of the provision under Section 397 Cr.P.C. observed as under:
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 14 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.11 16:10:17 +0530 properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC."
(Emphasis supplied)
9. Similarly, the Hon'ble High Court of Delhi in V.K. Verma v. CBI, 2022 SCC OnLine Del 1192, in a similar context noted as under;
"67. The revisional jurisdiction is not meant to test the waters of what might happen in the trial. The Revisional Court has to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of the court below. While doing so, the Revisional Court does not dwell at length upon the facts and evidence of the case, rather it considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence. In the instant case, the Petitioner has failed to make out a case for exercise of the revisional jurisdiction since there is no patent error in the impugned order on the face of record."
(Emphasis supplied)
10. Quite evidently, it may be noted from above that the revisional jurisdiction of the higher court is quite limited and cannot be exercised in a routine manner. In fact, as aforenoted, the revisional Court can interfere only in the instances where an order of trial court was passed, unjustly and unfairly. Further, it is a settled law3 that trite law that in a case where the order of subordinate Court does not suffer from any illegality, "merely because of equitable considerations, the revisional Court has no jurisdiction to re-consider the matter and pass a different order in a routine manner." Reference in this regard is made to the decision 3 Juned v. State of M.P., 2023 SCC OnLine MP 4458; and Dilip Damor v. State of M.P., 2024 SCC OnLine MP 958.
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in Taron Mohan v. State, 2021 SCC OnLine Del 312, wherein the Hon'ble High Court of Delhi expounded as under;
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
(Emphasis supplied)
11. Notably in the context of the foregoing, it is further apposite to observe here that it is no longer res integra that the orders framing charges or refusing discharge are neither interlocutory nor final in nature, rather, intermediate in nature 4, and are, therefore, not affected by the bar of Section 397(2) Cr.P.C. However, the scope of interference under Section 397 Cr.P.C. at a stage, when charge had been framed, is also equally settled5. In this regard, it is pertinent to make a reference to the decision of the Hon'ble Apex Court in Manendra Prasad Tiwari v. Amit Kumar Tiwari, 2022 SCC OnLine SC 1057, wherein the Hon'ble Court enunciated the law in regard the foregoing as under;
"22. The scope of interference and exercise of jurisdiction under Section 397 of CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether 4 Sanjay Kumar Rai v. State of U.P., (2022) 15 SCC 720.5
State of Rajasthan v. Fatehkaran Mehdu, (2017) 3 SCC 198.
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there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage the final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of Code of Criminal Procedure.
23. Section 397 CrPC vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding."
(Emphasis supplied)
12. Germane for the purpose(s) of present discourse to now consider the principles governing framing of charges. In this regard, it is relevant to outrightly note the settled law 6 that at the stage of framing of charges, neither can the truth, veracity and effect of the prosecution case be meticulously7 judged, nor can any weight to be attached to the probable defence of the accused. On the contrary, at such a stage, only the sufficiency of ground for proceeding against the accused, on a general consideration of materials placed before the Court by the investigating police officer is relevant. Further, though, sifting of evidence is permissible8, however, scanning of evidence in detail is not. Quite understandably, the Hon'ble High Court of Delhi in Reena v. State (NCT of Delhi), 2020 SCC OnLine Del 630 , iterated the said principles in unequivocal terms as under;
"12. Thus it is settled position of law that at the time of framing of charge, the Court is not supposed to look into the evidence of the case in detail and is only to consider whether there is a strong suspicion against 6 State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 7 Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460.8
State of Maharashta v. Priya Sharan Maharaj & Ors., (1997) 4 SCC 393. CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 17 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:10:33 +0530 the accused on the basis of the material that comes before it. The court has the power to sift the evidence for the limited purpose of finding out, whether or not a prima facie case is made out against the accused. However, the Court is not supposed to delve deeply into the merits of the matter and start a roving expedition into the evidence that is brought forth it, as if conducting a trial. Further there is no one fixed definition that may be ascribed to the term prima facie' nor can the term strong suspicion have a singular meaning. While coming to the conclusion of a strong prima facie case or strong suspicion, the Court shall have to decide each case on the basis of its own independent facts and circumstances."
(Emphasis supplied)
13. Concurrently, it is settled law9 that the inconsistency in the material produced by the prosecution or the defects in investigation10, cannot be looked into for discharge of an accused, in the absence of full-fledged trial. In fact, the probative value11 of the material on record cannot be gone into, and the material placed on record by the prosecution has to be accepted as true at that stage. Reference in this regard is made to the decision of the Hon'ble Supreme Court in State through Deputy Superintendent of Police v. R. Soundirarasu and Ors., MANU/SC/1103/2022 , wherein the Hon'ble Court remarked as under;
"58. Reiterating a similar view in Sheoraj Singh Ahlawat and Ors. v. State of Uttar Pradesh and Anr., MANU/SC/1011/2012: (2013) 11 SCC 476, it was observed by this Court that while framing charges the court is required to evaluate the materials and documents on record to decide whether the facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into the probative value of the materials on record. It needs to evaluate whether there is a ground for presuming that the Accused had committed the offence and it is not required to evaluate sufficiency of evidence to convict the Accused. It was held that the 9 Sheoraj Singh Ahlawat v. State of U.P., (2013) 11 SCC 476.10
State of Tamil Nadu by Inspector of Police v. N. Suresh Ranjan & Ors., (2014) 11 SCC 709.11
Soma Chakravarty v. State, (2007) 5 SCC 403. CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 18 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL Date:
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Court at this stage cannot speculate into the truthfulness or falsity of the allegations and contradictions & inconsistencies in the statement of witnesses cannot be looked into at the stage of discharge."
(Emphasis supplied)
14. Relevant to further note that it is trite law 12, at the stage of framing of charge, only the police report is required to be considered and the defence of the accused13 cannot be looked into. Needless to mention that the superior courts 14 have persistently deprecated the practice of holding a mini trial at the time of framing of charge. Relevantly, in this regard, reference is made to the decision of the Hon'ble Supreme Court in Bharat Parikh v. CBI, (2008) 10 SCC 109, wherein the Hon'ble Court enunciated the judicial principle(s), as under;
"19. As observed in Debendra Nath Padhi case [(2005) 1 SCC 568: 2005 SCC (Cri) 415] at the stage of framing charge roving and fishing inquiry is impermissible and a mini trial cannot be conducted at such stage. At the stage of framing of charge the submissions on behalf of the accused have to be confined to the material produced by the investigating agency. The accused will get an opportunity to prove the documents subsequently produced by the prosecution on the order of the Court, but the same cannot be relied upon to reopen the proceedings once charge has been framed or for invocation of the High Court's powers under Section 482 of the Code of Criminal Procedure."
(Emphasis supplied)
15. Apposite to further emphasize15 that at the stage of charge, court(s) is/are not even required to record detailed reasons for framing charge, rather16, a very strong suspicion founded upon 12 State Anti-Corruption Bureau, Hyderabad & Anr. v. P. Suryaprakasam, (1999) SCC (Crl.) 373 and State of Orissa v. Debendra Nath Padhi, 2005 (1) SCC 568.
13State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294.
14Indu Jain v. State of M.P., (2008) 15 SCC 341.
15Bhawna Bai v. Dhanshyam & Ors., (2020) 2 SCC 217 16 Supdt. and Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhunja, AIR 1980 SC 52 and Sajjan Kumar v. CBI, (2010) 9 SCC 368 CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 19 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:10:41 +0530 materials placed before it, which leads the court to form a presumptive opinion as to the existence of factual ingredients constituting the offence alleged, may justify the framing of charges. In fact17, it is only when no case is made out even after presuming entire prosecution evidence, can an accused be discharged. Needless to accentuate18, "at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial." Notably, the Hon'ble Supreme Court in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715, while inter alia illuminating the principles as well as the scope of enquiry for the purpose of charge/discharging an accused, observed as under;
"14. ...In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused".
The "ground" in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into."
(Emphasis supplied)
16. Ergo, being mindful of the principles hereinunder noted, this Court would now proceed with the determination of the arguments raised by Ld. Counsel for the accused, Ld. Counsel for 17 Manjit Singh Virdi v. Hussain Mohammed Shattaf, (2023) 7 SCC 633 18 Sonu Gupta Vs. Deepak Gupta & Ors., (2015) 3 SCC 424 CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 20 of 49 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.11 16:10:44 +0530 the complainant as well as by Ld. Addl. PP for the State. Markedly, one of the primary contentions of the Ld. Counsel for the accused is that even from the material placed on record, ingredients of offence/allegations levelled/charges framed against the accused are not even prima facie made out. In contrast, as aforenoted, Ld. Counsel for the complainant has asserted that provisions under Section 376IPC/Section 376/511 IPC are also attracted against the accused in the instant case. However, in order to appreciate the said contention, this Court deems it pertinent to reproduce the relevant provisions under law/IPC as under;
"319. Hurt-Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
*** *** ***
321. Voluntarily causing hurt-Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
323. Punishment for voluntarily causing hurt- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
*** *** ***
354. Assault or criminal force to woman with intent to outrage her modesty-Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine. 354A. Sexual harassment and punishment for sexual harassment-(1) A man committing any of the following acts-
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 21 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
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(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment. (2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
*** *** *** 354D. Stalking-(1) Any man who--
(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:
Provided that such conduct shall not amount to stalking if the man who pursued it proves that--
(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
(iii) in the particular circumstances such conduct was reasonable and justified.
(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.
*** *** ***
375. Rape-A man is said to commit "rape" if he-
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 22 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.11 16:10:52 +0530 or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:--
First-Against her will.
Secondly-Without her consent.
Thirdly-With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt, Fourthly-With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly-With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly-With or without her consent, when she is under eighteen years of age.
Seventhly-When she is unable to communicate consent.
Explanation 1-For the purposes of this section, "vagina" shall also include labia majora. Explanation 2-Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity...
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441. Criminal trespass-Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 23 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:10:57 +0530 or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
442. House-trespass-Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-
trespass".
Explanation-The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house-trespass.
*** *** ***
451. House-trespass in order to commit offence punishable with imprisonment-Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years.
*** *** ***
506. Punishment for criminal intimidation- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment 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 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 line, or with both *** *** ***
511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment-Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 24 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:11:01 +0530 imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one- half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both."
(Emphasis supplied)
17. Notably, it is observed from a perusal of Section 323 IPC that the essence of the said offence lies in the accused's causing hurt to the victim, voluntarily , i.e., intentionally or with knowledge that in the process, hurt would be caused. Significantly, the term, hurt, in turn, is defined under Section 319 IPC as causation of any bodily pain, disease or infirmity to a victim. Quite evidently, disease or infirmity may have external manifestation, however, bodily pain may not be easily perceivable from any medical report. Ergo, it is quite understandable that the superior courts have persistently avowed that in order for conviction under Section 323 IPC to stand, it is not essential for production of an injury/medical report. Reference in this regard is made to the decision in Lakshman Singh v. State of Bihar, (2021) 9 SCC 191 , wherein the Hon'ble Supreme Court in unambiguous terms noted as under;
"11. Now so far as the submission on behalf of the appellant-accused that all the appellants were alleged to have been armed with lathis and so far as PW 8 is concerned, no injury report is forthcoming and/or brought on record and therefore they cannot be convicted for the offence under Section 323 IPC is concerned, at the outset, it is required to be noted that PW 8 in his examination-in-chief/deposition has specifically stated that after he sustained injuries, treatment was provided at Government Hospital, Paatan. He has further stated in the cross-examination on behalf of all the accused persons except accused Dinanath Singh that he sustained 2-3 blows of truncheons. He has also stated that he does not exactly remember that how many blows he suffered. According to him, he first went to Police Station, CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 25 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.11 16:11:04 +0530 Paatan along with the SHO of Police Station, Paatan, where his statement was recorded and thereafter the SHO sent him to Paatan Hospital for treatment. Thus, he was attacked by the accused persons by lathis/sticks and he sustained injuries and was treated at Government Hospital, Paatan has been established and proved. It may be that there might not be any serious injuries and/or visible injuries, the hospital might not have issued the injury report. However, production of an injury report for the offence under Section 323 IPC is not a sine qua non for establishing the case for the offence under Section 323 IPC. Section 323 IPC is a punishable section for voluntarily causing hurt. "Hurt" is defined under Section 319 IPC. As per Section 319 IPC, whoever causes bodily pain, disease or infirmity to any person is said to cause "hurt". Therefore, even causing bodily pain can be said to be causing "hurt". Therefore, in the facts and circumstances of the case, no error has been committed by the courts below for convicting the accused under Section 323 IPC..."
(Emphasis supplied)
18. In so far as the provision under Section 354 IPC is concerned, in order to attract the said provision, it is required from the prosecution to prove; (i) commission of criminal assault or use of criminal force on a person, who is a woman; (ii) use of criminal force on such victim by the aggressor/accused; and (iii) use of criminal force upon such a woman with a mens rea (intention or knowledge) to 'outrage her modesty'. In this regard, this Court deems is further apposite to refer to the decision in Vidyadharan v. State of Kerala, (2004) 1 SCC 215, wherein the Hon'ble Supreme Court19, while explicating the basic ingredients of Section 354 IPC, noted as under;
"9. 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 of having such outrage 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 SC 63 : 1967 Cri LJ 1] .) A 19 Premiya v. State of Rajasthan, (2008) 10 SCC 81. CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No.Digitally 26 ofsigned 49 ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.11 16:11:08 +0530 careful approach has to be adopted by the court while dealing with a case alleging outrage 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.
10. Intention is not the sole criterion 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..."
(Emphasis supplied)
19. Analogously, the Hon'ble Supreme Court in Raju Pandurang Mahale v. State of Maharashtra & Ors., MANU/SC/0116/2004, cogitating on the ingredients of the offence under Section 354 IPC and the meaning of the term, 'modesty', remarked as under;
"11. Coming to the question as to whether Section 354 of the Act has any application, it is to be noted that the provision makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are:
(a) That the assault must be on a woman.
(b) That the accused must have used criminal force on her.
(c) That the criminal force must have been used on the woman intending thereby to outrage her modesty.
12. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 27 of 49 Digitally signed by ABHISHEK GOYAL ABHISHEK Date: GOYAL 2025.03.11 16:11:12 +0530 virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word 'modesty' is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word 'modesty' in relation to woman as follows:
"Decorous in manner and conduct; not forward or lowe; Shame-fast, Scrupulously chast."
*** *** ***
14. Webster's Third New International Dictionary of the English Language defines modesty as "freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct". In the Oxford English Dictionary (1933 Edn.), the meaning of the word 'modesty' is given as "womanly propriety of behavior; scrupulous chastity of thought, speech and conduct (in man or woman); reverse or sense of shame proceeding from instinctive aversion to impure or coarse suggestions"..."
(Emphasis supplied)
20. Pertinent, for the purpose(s) of the present discourse to also make a reference to the decision of the Hon'ble Supreme Court in State of Punjab v. Major Singh, 1966 SCC OnLine SC 51, wherein the Hon'ble Court, while confronted with the issue whether a female child of seven-and-a-half months could be said to be possessed of 'modesty' which could be outraged, remarked as under;
"15. I think that the essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged. Whoever uses criminal force to her with intent to outrage her modesty commits an offence punishable under Section 354. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive, as for example, when the accused with a corrupt mind stealthily touches the flesh of a sleeping woman. She may be an CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 28 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:11:15 +0530 idiot, she may be under the spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the act; nevertheless, the offender is punishable under the section."
(Emphasis supplied)
21. Remarkably, in the aforesaid dictate, the Hon'ble Apex Court unambiguously explicated that the sense of modesty in all women is not the same for all and that the same may vary from woman to woman. Nonetheless, considering that the essence of a woman's modesty is her sex, touching of the victim's body, i.e., breasts, mouth any other body parts, etc., by an accused, without the consent of the complainant/victim, would indubitably and plainly fall within the four corners of the provisions under Section 354 IPC. Similarly, Section 354A IPC provides for criminality against any man who engages in unwelcome physical contact and advances explicit sexual behavior, demands sexual favors, shows pornography against a woman's will, or makes sexually colored remarks. Correspondingly, from a perusal of the provisions under Section 354D IPC, it is observed that in order to attract culpability under the said provision, the prosecution is inter alia required to establish20 that a man followed a woman and contacted or attempted to contact her to foster personal interaction, repeatedly, despite a clear indication of disinterest by such woman. In this regard is made to the decision of the Hon'ble Calcutta High Court in Satyabrata Barik v. State of W.B., 2024 SCC OnLine Cal 6948, wherein the Hon'ble Court, while explicating the ingredients of the provisions under Section 354D IPC, remarked as under;
"23. At the same time, the offence of stalking under Section 354D of the IPC involves a man as the perpetrator and a woman as victim. To constitute any 20 Jayaprakash P.P. v. Sheeba Revi, 2023 SCC OnLine Ker 4904.
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offence under this Section the man must try to contact a woman against her interest.
24. The essentials of the offence of stalking under Section 354D of the IPC require specific elements to be established for a violation to occur. These elements of Section 354D of the IPC include:-
• Perpetrator's Gender: Stalking must be committed by any man. The offence is gender- specific, meaning it involves a man as the perpetrator and a woman as the victim.
• Unwanted Contact: The man must try to contact or contact a woman against her interest . This element involves any form of communication, be it in person or through electronic means, where the woman has expressed disinterest and the man persists in trying to establish contact.
• Repetition: The act of stalking must exhibit a certain degree of repeatedness. It's not a one-time occurrence but rather involves a pattern of persistent and unwanted attention or contact. This pattern is essential to distinguish stalking from isolated or accidental interactions.
• Absence of Interest: There should be a clear indication of disinterest on the part of the woman. This element is crucial to ensure that the woman's lack of consent or interest is evident and that the man is persisting despite her objections."
(Emphasis supplied)
22. Correspondingly, the Hon'ble High Court of Kerala in Abdul Razak v. State of Kerala, 2019 SCC OnLine Ker 5334 , while delving into the provisions under Section 354D IPC, inter alia observed as under;
"10. A mere reading of the provision contained in Sec.354D of the IPC would make it clear that one of the prime ingredients to be satisfied is that, the accused man should have followed the woman and should have contacted or attempted to contact the woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman or monitors the use by a woman of the internet, email or any other form of electronic communication, etc. In the instant case the lady defacto complainant does not have a case that the petitioner has monitored her use of internet, email or any other form of electronic communication. Further that, her admitted allegation is only that the petitioner CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 30 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.11 16:11:24 +0530 had taken her photograph in one occasion, without her permission. Thus it can be seen that a solitary instance as in the instant one cannot be remotely contemplated as stalking as understood in Sec.354D of the IPC. Hence the petitioner is right in contending that the vital ingredients of offence of stalking as per Sec.354D of the IPC are not made out even going through the admitted prosecution allegations."
(Emphasis supplied)
23. In as much as the applicability/culpability under Section 506 IPC is concerned, law is trite that in order to attract the said provision, the prosecution is required to prove that the; (i) accused threatened some person; (ii) such threat must extend to causing any injury to his person, reputation or property, or to the person, reputation or property of someone in whom he was interested; and (iii) the accused did so with intent to cause alarm to that person, or to cause that person to do any act which he was not legally bound to do or omit to do an act which he is legally entitled to do as a means of avoiding the execution of such threat. Pertinently, the Hon'ble High Court of Orissa in Amulya Kumar Behera v. Nabaghana Behera, 1995 SCC Online Ori 317, while explicating the meaning of the word, 'alarm' used under Section 503/506 IPC, noted as under;
"...The threat must be intended to cause alarm from which it follows that, ordinarily, it would be sufficient for that purpose. The degree of such alarm may vary in different cases, but the essential matter is that it is of a nature and extent to unsettle the mind of the person on whom it operates and take away from his acts that element of free voluntary action which alone constitutes consent. The case where the threat produces an alarm is comparatively a simple one, for all that has then to be proved is that threat was given and that the alarm was due to the threat: but where the threat has not that effect, it involves a question whether it was sufficient to overcome a man of ordinary nerves. The Court may hold it to be an empty boast, too insignificant to call for penal visitation of Section 506. "Intimidate" according to Webstar's CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 31 of 49 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.11 16:11:27 +0530 Dictionary means" (1) to make timid, make afraid, overawe; (2) force or deter with threats or violence, cow". Threat referred to in the Section must be a threat communicated or uttered with intention of its being communicated to the person threatened for the purpose of influencing his mind. Question whether threat amounts to a criminal intimidation or not does not depend on norms of individual threatened if it is such a threat as may overcome ordinary free will of a man of common firmness. "Threat" is derived from Anglo-sexam word "threotou to life", (harass). It is the dicleration of an intention to inflict punishment, loss or pain on another. "Injury" is defined in Section
44. It involves doing of an illegal act. If it is made with intention mentioned in the section, it is an offence. Whether threat was given with intention to cause alarm to the person threatened has to be established by evidence to be brought on record..."
(Emphasis supplied)
24. Significantly, in the aforenoted dictate, the Hon'ble Court explicitly observed that the mens rea/ intention envisaged under Section 503/506 IPC must be to cause alarm to the victim and whether or not such a victim is alarmed, is not of any consequence. Apropos the present discourse, reference is further made to the decision of the Hon'ble Supreme Court in Manik Taneja v. State of Karnataka, (2015) 7 SCC 423 , wherein the Hon'ble Court, while dealing with the ingredients of offence under Section(s) 503/506 IPC, inter alia, observed as under;
"11. Section 506 IPC prescribes punishment for the offence of criminal intimidation. "Criminal intimidation" as defined in Section 503 IPC is as under:
"503. Criminal intimidation.--Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
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Explanation- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."
A reading of the definition of "criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do."
(Emphasis supplied)
25. Apposite for the purpose of present discourse to further refer to the decision of the Hon'ble Supreme Court in Aman Kumar v. State of Haryana, (2004) 4 SCC 379, while cogitating on the provisions under Section 511 IPC, noted as under;
"9. ...Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word "attempt" is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 33 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.11 16:11:39 +0530 against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part-execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt."
(Emphasis supplied)
26. Similarly, the Hon'ble High Court of Punjab and Haryana in Mohindar Singh v. State, 1959 SCC OnLine Punj 260, while deliberating on the provisions under Section 511 IPC, remarked as under;
"28. An attempt is an intended but unfinished crime, tending but failing to effect its commission. I Specific intention to commit the crime of murder is a necessary pre-requisite. In so far as the offence relates to an attempt, the overt act must necessarily be left unaccomplished, for otherwise the prosecution would be for the completed crime. Apart from the necessary mens rea, the actus reus must be more than a preliminary preparation.
*** *** ***
30. The means must be apparently, though not really, suitable, so that they can be adapted to the designed purpose. Well-laid plans after careful preparation are sometimes unexpectedly foiled-and rendered ineffectual. The best fire-arms loaded, capped, primed and well-aimed may misfire. It may even be, that the party shot at was wearing a jacket of impervious mail, or that the shot that a bullet proof CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 34 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:11:43 +0530 object inside a pocket, e.g., metal clasp of a pocket book or of a purse, or a cigarette case.
31. In all such cases the accused is guilty of the offence of attempt to commit murder. But if the means adopted are such, as are apparently and also absolutely, inadequate to accomplish the designed purpose then the case for attempted murder cannot be made out. This is illustrated when a man threatens the life of another, with a child's popgun using a cork or similar innocuous thing as a projectile.
32. Thus the essentials for criminal attempt are:
(i) an existence of an intent on the part of the accused to commit a particular offence;
(ii) some step taken towards it after completion of preparation.
(iii) The step must be apparently though not necessarily adapted to the purpose designed;
(iv) it must come dangerously near to success;
(v) it must fall short of completion of the ultimate design."' (Emphasis supplied)
27. Clearly, it is noted from the above that 'attempt' denotes an inchoate offence when an accused takes a significant step towards the commission of a targeted offense, however, ultimately fails to achieve the desired object due to intervening circumstances. Needless to further mention here that besides the aforenoted ingredients, for culpability for attempt/S. 511 IPC to arise the steps/device/means adopted must be apparently though not necessarily adapted for the purpose, designed. As a corollary, where the means adopted are such, as are apparently and also absolutely, inadequate to accomplish the designed purpose then, criminality would not arise. Lastly, this Court further deems it pertinent to refer here the decision of the Hon'ble Supreme Court in Koppula Venkat Rao v. State of Andhra Pradesh, MANU/SC/0204/2004, wherein the Hon'ble Court, while expounding the ingredients of offence of rape and attempt to rape, besides distinguishing between the same, remarked as under;
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"9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary Intention, he commences his attempt to commit the offence. The word "attempt" is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it:
and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not be taken for the deed unless there be some external act which shows that progress, has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing, line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.
10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 36 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:11:50 +0530 of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
11. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.
12. The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of "rape" as contained in Section 375 IPC refers to "sexual intercourse" and the Explanation appended to the Section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has not been established. Courts below were not correct in their view."
(Emphasis supplied)
28. Consequently, being wary of principles/judicial dictates hereinunder noted and the arguments addressed, this Court would now proceed with the appreciation of the material placed on record. In this regard, this Court deems it pertinent to outrightly deal with the contention of Ld. Counsel for the accused that the Ld. Trial Court failed to appreciate the CCTV footage placed on record of the Ld. Trial Court, which proves the plea of alibi of the accused. As aforenoted, Ld. Counsel for the accused vehemently asserted that as per the prosecution the alleged incident occurred at 07.00 p.m. on 14.09.2016, however, the relevant CCTV footage, CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 37 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.11 16:11:55 +0530 placed on record of the Ld. Trial Court, duly proves that the accused had entered into his house at about 18:05:54 hours and left his house at about 20:29:24 hours on the said day, establishing that the accused was present at his house at the alleged time of incident on 14.09.2016. Accordingly, Ld. Counsel has asserted that the charges ought not to have been framed against the accused as the said footage clearly demonstrates the presence of the accused elsewhere (at his house). Correspondingly, Ld. Counsel for the accused vehemently relied on the FSL report dated 25.04.2019 in this regard, wherein it has been noted as under;
"...RESULTS OF EXAMINATION/OPNION:
The laboratory examination of CCTV Footage in Video file in "Exhibit-1", it was observed that Video files are continuous footage of CCTV Recordings. There is no indication of alteration in continuous footage of CCTV recording on the basis of frame by frame analysis using Video Analyst System. The Auditory analysis by critical listening, subsequent waveform and spectrographic analysis of acoustic signals of each audio file in "Exhibit-1" it was revealed that the signal are continuous form of audio recording and there is no indication of alteration by using CSL (computerized Speech Lab.)..."
(Emphasis supplied)
29. However, when the material placed on record is conscientiously analyzed, the aforesaid contention of the Ld. Counsel for the accused fails to impress this Court. In this regard, this Court outrightly observes that even conceding/yielding that the FSL report correctly records that there is no indication of alteration in the continuous footage of CCTV recording, same, in the considered opinion of this Court, cannot be read to reach at an unwavering conclusion that the time noted on such CCTV footage aligned with the actual time of the said day or that the same coincided with the time of occurrence, bereft of a proper trial and CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 38 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:11:58 +0530 evidence being led in this regard. In other words, presuming for the sake of argument, the instant FLS report is unblemished, it would not be safe to reach at a conclusion that the CCTV footage was in fact recording the timing of the fateful day in its exactitude, especially when the proceedings are still at a nascent stage and the evidence is yet to be led/adduced. Correspondingly, this Court is also in concurrence with the finding of the Ld. Trial Court that opinion of an expert, by its very nature, is only a corroborative piece of evidence as an expert witness is not a witness of fact. Clearly, such an opinion can only be put to test and objectively analyzed only during the course of trial. As a corollary, bereft of necessary evidence/material being put forth to the complainant and other witnesses, including the expert, in the considered opinion of this Court, it would not be safe to simply rely on the said CCTV footage to reach a conclusion that the accused was not present at the spot or that he had no occasion to commit the offence, especially when the complainant has consistently asserted regarding the same in her statement recorded before the police officials as well as before the Ld. MM, in terms of the provisions under Section 164 Cr.P.C. Needless to note here that the superior courts21 have persistently declared that a plea of ' alibi' is a question of fact which is required to be proved by an accused at the stage of trial to show by adducing appropriate evidence that he/she was elsewhere and was falsely implicated in a case. Reference in this regard is further made to the decision in Neetesh Sharma v. The State of Madhya Pradesh & Ors., MANU/MP/4449/2024, wherein the Hon'ble High Court of Madhya Pradesh, while scrupulously delving into the said issue, explicated the law as 21 Satish v. State of U.P. & Ors., MANU/UP/3612/2024. CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 39 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:12:03 +0530 under;
"5. The moot question for consideration is whether this Court can discharge the petitioner by accepting his defence of plea of alibi or not?
6. The Supreme Court in the case of Vijay Pal v.
State (Govt. of NCT of Delhi), reported in MANU/SC/0230/2015: 2015:INSC:194: (2015) 4 SCC 749 has held as under:
*** *** *** The said principle has been reiterated in Gurpreet Singh v. State of Haryana, Sk. Sattar v. State of Maharashtra and Jitender Kumar v. State of Haryana.
7. The Supreme Court in the case of S.K.Sattar v.
State of Maharashtra, reported in MANU/SC/0649/2010: 2010:INSC:546: (2010) 8 SCC 430 has held as under :
*** *** ***
8. The Supreme Court in the case of Binay Kumar Singh v. State of Bihar, reported in MANU/SC/0088/1997: 1996:INSC:1260: (1997) 1 SCC 283 has held as under:
*** *** *** Thus, it is clear that so far as defence of plea of alibi is concerned, it is required to be proved by leading cogent evidence and it cannot be proved by preponderance of probabilities. It is a disputed question of fact that cannot be adjudicated by the Court while exercising power under Article 226 of the Constitution of India..."
(Emphasis supplied)
30. Reverting now to the contention of the Ld. Counsel for the accused that the Ld. Trial Court did not consider the transcript placed on record by the accused of the memory card/recording on the mobile phones of the complainant, accused and other persons demonstrating that the complainant and such other persons engaged in criminal conspiracy to falsely implicate the accused in the present case, this Court outrightly observes that the said contention too falls flat before this Court. In this regard, it is reiterated that the Ld. Counsel for the accused vehemently asserted that the Ld. Trial Court wrongly dismissed the accused's CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 40 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.11 16:12:07 +0530 application under Section 173(8) Cr.P.C. inter alia seeking directions to the IO to submit the transcript of the audio recording, present in the memory card, mobile phone, etc., of the complainant's mobile phone, besides the Ld. Trial Court did not consider the transcript of the said recording placed on record by the Ld. Trial Court. However, as aforenoted, when the said contentions of the Ld. Counsel for the accused when judiciously probed, in light of the material placed on record, this Court finds itself difficult to concede that the Ld. Trial Court committed any irregularity, impropriety or palpable error in dismissing the accused's application under Section 173(8) Cr.P.C. or failed to consider the material placed on record while framing charges, as otherwise contended by the Ld. Counsel. On the contrary, even if the argument of Ld. Counsel for the accused in this regard is conceded and the transcript placed on record by the accused is read at the present of charge, the veracity, context as well as the relevance of such transcript/conversation of alleged conspiracy between the complainant and others to falsely implicate the accused in the present case can be examined, evaluated and determined only once evidence is led before the Ld. Trial Court. Clearly, bereft of such evidence placed on record, it would not be in consonance with the repeated declarations of the superior courts, as hereinunder noted, to reach a conclusion that the accused was falsely implicated in the present case in furtherance of such alleged conspiracy. Needless to reiterate that at the stage of charge, only the contents of the chargesheet and the material placed therewith can be considered by court to reach a conclusion of prima facie case and strong suspicion of commission of offence by an accused and that the defence of an accused cannot be CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 41 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:12:22 +0530 considered at such a stage. Clearly, seen in such perspective, this Court is further in concurrence with the determination of the Ld. Trial Court that the accused can prove his defence that the instant case was initiated by the complainant in furtherance of conspiracy between her/the complainant and others, only during the trial and that since the IO has already seized the case property, which would be adduced during the trial proceedings, no ground for taking the transcript on record or to direct the IO to file the same on record are made out in the instant case. On the contrary, from a thorough review of the material placed on record of the Ld. Trial Court, including the contents of the chargesheet/supplementary chargesheet, complaint and statement of the victim/complainant and other witnesses; MLC of the victim; statement of the complainant recorded under Section 164 Cr.P.C. as well as the recovery and seizure memo(s) placed on record, this Court is in complete alliance/consonance with the determination of the Ld. Trial Court that a prima facie case under Sections 354/354A/354D/451/506/323 IPC stands established against the accused/revisionist, namely, Shailender in the present case. Further, from the perusal of case record, it is revealed that there is strong suspicion and sufficient material/ground(s) to proceed against the said accused, besides there are witnesses who can depose against him. Needless to accentuate that when the complaint/statements of the complainant recorded under Section 161/164 Cr.P.C. are read in conjunction with each other there are specific allegations of accused persistently and repeatedly trying to contact of contacting the accused against her interest and despite the complainant's clear indication of disinterest. As aforenoted, the complainant, explicated under her statement, recorded in terms CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 42 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:12:27 +0530 of the provisions under Section 164 Cr.P.C., that the accused continued to follow and/or contacted/attempted to contact her/the complainant on 17.05.2015, 12.06.2016, 15/16.05.2016 and 14.09.2016 in order to foster personal interaction with the complainant, repeatedly, despite a clear indication of disinterest on her part, prima facie, establishing a case under Section 354D IPC against the accused. Correspondingly, the complainant, explicated under her complaint/various statements that on 14.09.2016, the accused forcibly entered her house, assaulted her, pushed her breast, tried to open the knot of her salwar, besides threatened her/the complainant of dire consequences of defaming the complainant, in case she disclosed anything about the incident to anyone. Quite evidently, the complainant consistently proclaimed of the accused's touching her private part(s)/pushing her breast, without her consent, by using criminal force with an intention to outrage her modesty. As aforenoted, considering that the superior courts have tirelessly declared that the essence of a woman's modesty is her sex and that touching of the victim's body, i.e., breasts, mouth any other body parts, etc., by an accused, without the consent of the complainant/victim, would indubitably and plainly fall within the four corners of the provisions under Section 354/354A IPC, in the instant case, from the material placed on record, provisions of Sections 323/354/354A IPC are prima facie established against the accused. Needless to reiterate the complainant averred that the accused threatened her of dire consequences of defaming her on the said date, post commission of the incident, besides the complainant avowed of the accused's forcibly entering her dwelling/house with an intention to commit offence, in the considered opinion of this Court, sufficient to make CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 43 of 49 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.03.11 16:12:30 +0530 out strong suspicion and prima facie case under Sections 451/506 IPC against the accused, in the instant case.
31. However, now coming to contention of the Ld. Counsel for the complainant that the charges under Sections 376 IPC/Section 376 IPC read with Section 511 IPC ought to have been framed against the accused in the instant case, this Court outrightly notes that nowhere under the complaint or any of the statements of the complainant is there any allegation of commission of rape in the instant case. On the contrary, under the said statements/complaint, the complainant persistently asserted that the accused tried to rape her and that there is no assertion of any penetration or even slightest degree of penetration, digital or otherwise is forthcoming under any of the statements/complaint of the complainant so as to be sufficient to charge the accused of the offence under Section(s) 375/376 IPC in the instant case. Needless to mention that the complainant is educated, admittedly being a Doctor by profession. Ergo, under such circumstances, bereft of clear indication/allegation of rape, in the considered opinion of this Court, no infirmity can be attributed to the impugned order in so far as the Ld. Trial Court does not direct framing of charges under the said provision.
32. In so far as the contention of Ld. Counsel for the complainant pertaining to non-framing of charges under Section 376 read with Section 511 IPC is concerned, it is reiterated that nowhere under any of her statements under Section 161 Cr.P.C. or her complaint or the statement recorded in terms of the provision under Section 164 Cr.P.C., the complainant gave any indication of the acts constituting attempt to rape in the instant case. As aforenoted, the complainant despite being educated and Doctor by CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 44 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.11 16:12:34 +0530 profession merely asserted that the complainant attempted to rape her. However, such bald allegation, in the considered opinion of this Court, does not make out even a prima facie case for the offence(s) under Section 376 IPC read with Section 511 IPC. Needless to mention that there is no allegation of performing/doing a specific act towards the commission of offence of rape by the accused, which could not be completed, but for the timely of intervention in such act. Clearly, mere vague allegation that accused tried to commit rape upon the complainant, does not ipso facto attract penal provision of offence under Section 376 IPC read with Section 511 IPC. In fact, the law is trite22 that for an offence of attempt to rape, the the accused must have so advanced in his actions that it would have resulted into rape had some extraneous factors not intervened. In other words, there must be specific allegation and evidence on record to prima facie establish that accused has done an act towards commission of offence of rape as defined in section 375 IPC, but for intervention in that act. However, as aforenoted, in the instant case, no such assertion(s) is/are forthcoming under any of the statements/complaint of the complainant, even indicating to the slightest or making out even a prima facie case/strong suspicion to reach a conclusion that provisions under Section 376/511 IPC are attracted in the present case. Here, this Court deems it further apposite to observe that the contention of Ld. Counsel for the complainant that the complainant asserted in her complainant that the accused tried to pounce on her is sufficient to attract provisions under Section 376/511 IPC in the instant case, does not find favour with this Court. Pertinent to note in this regard that the said 22 State v. Sachin Singh & Ors., Crl. Rev. Pet. 315/2019, dated 08.02.2023 (DHC).
CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi)
CR No. 593/2023 Dr. D v. State & Anr. Page No. 45 of 49
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.03.11
16:12:37 +0530
assertion/allegation is not related to the incident of 14.09.2016, when the complainant alleged that the accused "tried to rape me". On the contrary, from a meticulous review of the said complaint it is noted that the said assertion is also general in nature, with no indication of any date, time and place of such occurrence, so as to convince of a prima facie case for framing said charges against the accused in the instant case. Reference in respect of the foregoing is further made to the decision of the Hon'ble High Court of Madhya Pradesh in Premnarayan v. State of M.P., MANU/MP/0215/1988, wherein the Hon'ble Court noted in an akin situation as under;
"Every criminal act of rape or an attempt thereof does involve an indecent assault. In order to amount to an attempt to commit an offence, the act of the accused must have proceeded beyond the stage of 'preparation'. If the act of the accused does not constitute anything beyond preparation and falls short of an attempt, he may escape the liability under Sections 376/511, I.P.C, and may he liable to be convicted only for an offence amounting to an indecent assault. Their Lordships of the Supreme Court observed in Abhayanand Mishra v. State of Bihar MANU/SC/0124/1961: 1961CriLJ822 :
There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly, a culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence, if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence, therefore, can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment tie commences to do an act with the necessary intention, he commences his attempt to commit the offence. A person commits the offence of "attempt to commit a particular offence," when
(i) he intends to commit that particular offence;
and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission, such an act need not be CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 46 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.03.11 16:12:40 +0530 the penultimate act towards the commission of that offence but must be an act during the course of committing that offence..."
(Emphasis supplied)
33. Consequently, in conspectus of above, further being wary of the aforenoted judicial principles, in light of the arguments addressed by the Ld. Counsel for the accused, Ld. Counsel for the complainant as well as by Ld. Addl. PP for the State, this Court reiterates that from the facts and circumstances of the case, material and the documents placed on record of the Ld. Trial Court, including inter alia the contents of the chargesheet/supplementary chargesheet, complaint and statement of the victim/complainant and other witnesses; MLC of the victim; statement of the complainant recorded under Section 164 Cr.P.C. as well as the recovery and seizure memo(s) placed on record, this Court is in concurrence with the determination of the Ld. Trial Court that a prima facie case under Sections 354/354A/354D/451/506/323 IPC stands established against the accused/revisionist, namely, Shailender. It is reiterated that the complainant expounded under her statement, recorded in terms of the provisions under Section 164 Cr.P.C., that the accused continued to follow and/or contacted/attempted to contact her/the complainant on 17.05.2015, 12.06.2016, 15.05.2016 and 14.09.2016 in order to foster personal interaction with the complainant, repeatedly, despite a clear indication of disinterest on her part, prima facie, establishing a case under Section 354D IPC against the accused. Correspondingly, the complainant, explicated under her complaint/various statements that on 14.09.2016, the accused forcibly entered her house, assaulted her, pushed her breast, tried to open the knot of her salwar, besides threatened CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 47 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.03.11 16:12:43 +0530 her/the complainant of dire consequences of defaming the complainant, in case she disclosed anything about the incident to anyone. Quite evidently, the complainant consistently proclaimed of the accused's touching her private part(s)/pushing her breast, without her consent, by using criminal force with an intention to outrage her modesty, prima facie attracting the provisions under Sections 323/354/354A IPC against the accused. Needless to reiterate the complainant averred that the accused threatened her of dire consequences of defaming her on the said date, post commission of the incident, besides the complainant avowed of the accused's forcibly entering her dwelling/house with an intention to commit offence, in the considered opinion of this Court, sufficient to make out strong suspicion and prima facie case under Sections 451/506 IPC against the accused, in the instant case.
34. Accordingly, in light of the aforesaid discussion, this Court unwaveringly records and reiterates that no irregularity, impropriety palpable error or non-compliance of the provision of law is demonstrable under the impugned order/order dated 14.09.2023, passed by Ld. MM-03, Central, (Mahila Court), Central, Tis Hazari Courts, Delhi in Cr. Case No. 8738/2017, titled as; 'State v. Shailendra Aggarwal', arising out of FIR No. 280/2016, PS. Subzi Mandi, under Sections 354/354A/506/323/452/509 IPC, directing framing of charges under Sections 354/354A/354D/451/506/323 IPC against the accused and dismissing the accused's applications under Sections 239/173(8) Cr.P.C. Needless to mention that though it holds highest regard for the decisions relied, however, the same would not come to the parties, in the manner as proposed, as the facts and CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 48 of 49 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:12:47 +0530 circumstances of the present case are clearly distinguishable.
35. Conclusively, in light of the above, this Court unambiguously observes that instant revision petitions, i.e., Crl.
Rev. No. 561/2023, preferred by Sh. Shailender Aggarwal, seeking discharge of the accused from the allegations/charges framed against him; and Crl. Rev. No. 593/2023, preferred by Dr. 'D', seeking directions for committal of the present before the Ld. Sessions Judge, both, deserve to be dismissed for the reasons as aforenoted, and are hereby, accordingly, dismissed. Trial Court Record along with a copy of this judgment be sent to the Ld. Trial Court concerned for information and compliance. As a corollary, impugned order dated 14.09.2023, passed by the Ld. Trial Court is hereby, upheld.
36. Revision files be consigned to record room after due compliance. Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.03.11 16:12:53 +0530 Announced in the open Court (Abhishek Goyal) on 11.03.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi CR No. 561/2023 Shailender Aggarwal v. State (GNCT of Delhi) CR No. 593/2023 Dr. D v. State & Anr. Page No. 49 of 49