Delhi District Court
Ajay Kumar Gupta vs State on 18 August, 2023
IN THE COURT OF DHEERAJ MOR : ASJ-02
(CENTRAL) TIS HAZARI COURTS, DELHI
CNR No. DLCT01-000880-2021
CA No. 6/2021
FIR No. 180/2005
U/s. 354/509 IPC
PS I.P. Estate
Ajay Kumar Gupta,
S/o Late S. P. Gupta,
R/o 119, Krishan Kunj Colony,
New Delhi-110092.
....Appellant
Versus
The State .... Respondent
Date of Institution : 21.01.2021
Date of Order : 18.08.2023
JUDGMENT
1. Vide this judgment, I shall dispose of the appeal preferred by Ajay Kumar Gupta (hereinafter referred to in short as 'appellant') against the judgment dated 18.12.2020 (hereinafter referred to in short as 'impugned judgment'), whereby he was convicted for the offence punishable u/s. 354/509 IPC and order on sentence dated 23.12.2020 (hereinafter referred to in short as 'impugned order').
2. Briefly stated, the case of the prosecution is that, present FIR No.180/2005 dated 15.04.2005 was registered at PS I.P. Estate against the appellant for the offence u/s. 354/509 IPC on the basis of complaint dated 12.04.2005 of Ms. 'KC' (as per law, her name is withheld in this judgment. Her details are mentioned in the FIR and charge-sheet). In her complaint, she had asserted that she was working as Senior Stenographer under the supervision of the appellant who was working as Senior Page No. 1/22 Architect, HUPW (East Zone), Delhi Development Authority (DDA) in his office on 8th Floor, Vikas Minar, DDA, Delhi. Previously, she was posted in Engineering Department of DDA where she was harassed by its officials regarding which she made a complaint to senior officers in DDA and also got an FIR no.983/2000 u/s. 509/34 IPC lodged against them. She had alleged that the accused persons of the said FIR, themselves and through their associates i.e. different officials had been pressurizing her to withdraw it. She had alleged that the appellant also pressurized her to withdraw the said case. Upon her refusal, he started sexually and mentally harassing her.
3. In her complaint, she had narrated several incidents of sexual and other harassment committed by the appellant with her. The said general, undated, untimed sweeping and non- specific incidents are as under:-
i. The appellant used to call her inside his office and diverting from official work, used to talk about her very personal issues. He used to hold her hand on one pretext or another, used to suddenly come close to her seat and tease her by touching her. Thereafter, he used to inquire if the offenders of the said FIR also used to do same with her;
ii. He used to hold her hand on the pretext of handing over the receiver of the phone to her;
iii. He usually used to get up while dictating and with the excuse of opening the almirah, used to come behind her and insert his hand in her clothes;
iv. Whenever, she used to be alone in the office, he used to come close to her and sexually harass her;Page No. 2/22
v. While writing something on paper, he used to say that by chance the written figure is similar to male organ and used to ask her to touch his male organ;
vi. While dictating if reference of feet or inch used to come he used to ask about length of her husband's male organ; vii. Whenever, any phone used to come on intercom, he used to tell her that its her phone and as soon as she used to go near him for taking call, he used to pat her breast; viii. He used to make fun of her by asking whether her all the clothes were removed and who all raped her in the incident related to aforementioned FIR; ix. When he used to drink water or tea, he used to lewdly comment about fluids of her body; x. The room adjoining to the room of the appellant was of Sh. Harbans Singh, Dy. Director and it used to be vacant. The appellant used to call her in the said room on the false pretext of giving urgent dictation and used to hold her and sexually harass her;
xi. He used to force her to perform work beyond her duties;
xii. He used to give indecent proposals of asking her to accompany him to a hotel 'Shipra' of his friend at Laxmi Nagar or to any hotel in Cannaught Place;
xiii. He used to say that the job of steno is to comply all the demands of her boss to please him;
xiv. He used to say that the female has been made by the God only to enjoy;
xv. He used to say that he behaves in similar manner Page No. 3/22 with other female staff but they do not object; xvi. He used to say that if she agree to him, he will give all the liberties to her in the office;
xvii. He used to object with her relations with her male and female colleagues;
xviii. He used to say that staff members would not support her if she makes a complaint against him as he knows their weakness; and xix. He used to threaten her by telling her that the other female employees who made complaints later regretted.
4. In the said complaint, she narrated the specific incidents of 06.04.2005, 07.04.2005 and 08.04.2005. She had alleged that on the said dates, he crossed all the limits of physically and mentally torturing her. She had alleged that he said to her that he had not touched her for long as she was on leave for many days. On the said dates, he called her several times during lunch and while she was typing, he stood touching her. She had alleged that he called her in the room of Dy. Director and when she reached there, he forcibly grabbed her. When she got rescued from him, he said that he will downgrade her confidential report. She had alleged that in the evening of 07.04.2005, when she was about to leave her office, he called her inside his room and did obscene act with her. She had alleged that on 08.04.2005, he again harassed her by holding her hands on the pretext of giving paper and dictation. She had alleged that in the evening of the said date, he sent a peon for calling her and again grabbed her when she reached inside his room. She had alleged that when she objected, he gave more work for typing Page No. 4/22 and said that its urgent as their boss Sh. S.K. Aggarwal wanted it. She had alleged that perceiving his intention, she made a call in security cell. The security staff came upstairs, she narrated all the incident to them and told them to make the complaint to the police. She had asserted that at that time no one else was present in the East Zone and S.K. Aggarwal, Additional Chief Architect was in the room of the appellant. She had alleged that the appellant had warned her if she makes complaint, he would ruin her life, career and reputation. She had alleged that due to the conduct of the appellant, she was under mental stress and due to fear she was unable to go to office.
5. During investigation, statement of witnesses were recorded and after its completion, charge-sheet was filed against the appellant on 22.09.2007. In accordance with order dated 24.10.2018, charge u/s. 354/509 IPC was framed against the appellant. He pleaded not guilty and claimed trial to the said charge.
6. In the prosecution evidence, the prosecution examined total 16 witnesses.
7. PW1 Pramod Kumar Pandey, PW2 Shiv Charan and PW9 Dharambir Singh are the Security Officer/guards at DDA, who have deposed about the incident dated 08.04.2005. PW3 'KC' is the complainant. PW8 D.C. Sharma was peon with the appellant at the time of the incident. PW10 Dinesh Rai was Vice Chariman, DDA, who gave sanction u/s. 197 CrPC to prosecute the appellant. PW12 Kamlesh Kumari was the colleague of the complainant. PW15 ACP Nageen Kaushik was the first IO and PW16 Retd. ASI Arji Ram was the fourth IO. The remaining Page No. 5/22 witnesses are either formal witnesses or official/police witnesses.
8. Thereafter, PE was closed and matter was listed for statement of accused u/s. 313 CrPC.
9. In his statement u/s. 313 CrPC, all the incriminating evidence were put to him for seeking his explanation. In his response, he has stated that he is innocent and has been falsely implicated in this case. He has stated that the complainant was habitual in making false complaints against her colleagues and her seniors. He has further stated that she was indisciplined and unpunctual. He has further stated that she used to manipulate her leave records and she was unhappy with his attempts to discipline her, who was his subordinate. He has further stated that he used to get entertainment allowance for tea and snacks to be used in the official meetings but complainant started using slips for her tea snacks in his name. He asked her to stop the said practice as it was causing excess monetary burden on his personal pocket. He has further stated that on 08.04.2005, the complainant reached office late and by the time she reached, he had already cross in her attendance sheet. On seeing that cross, she got furious and filed a false case against him. He preferred not to lead evidence in his defence, but he relied upon documents Ex.PW3/D1 to Ex.PW10/D1.
10. After conclusion of trial and on hearing final arguments, vide impugned judgment the appellant was convicted for the offences punishable u/s. 354/509 IPC and he was sentenced vide impugned order dated 23.12.2020.
11. Arguments on the appeal are heard. The case file, TCR and written submissions filed by complainant are carefully Page No. 6/22 perused.
12. Ld. Counsel for the appellant has contended that the ld. Trial Court has failed to appreciate the material improvements, inconsistencies and contradictions in the testimony of the complainant. He has pointed out several material improvements and contradictions in the previous statements and testimony of the complainant. He has argued that the said material contradictions have rendered her testimony as incredible and unbelievable. He has further contended that except for three dates i.e. 06.04.2005, 07.04.2005 and 08.04.2005, the complainant did not specify any time and date of her other wild allegations in her complaint. He has contended that the said other allegations are vague and ambiguous. He has contended that even the allegations pertaining to the said dates are unfounded and baseless which are not supported or corroborated by any credible independent witness. He has further argued that there is inordinate and unexplained delay in reporting of the alleged misbehavior and conduct of the appellant. He has contended that the complainant is a habitual complainant who has made more than 20 complaints against at least 20 of her colleagues and seniors between 1997 to 2011 during her service career. He has further contended that in the FIR No.983/2000 u/s. 509 IPC PS Hauz Khas lodged by the complainant, all the accused persons have been acquitted by ld. Sessions Judge-03, South Saket Courts, New Delhi on 04.06.2019 and the said acquittal has been confirmed by the Hon'ble Delhi Court.
13. He has argued that the complainant has named at least five of her colleagues and seniors in whom she reposed faith Page No. 7/22 and told about her ordeal at the hands of the appellant, however, the prosecution did not examine any of them except PW12 Kamlesh Kumari. Even the testimony of PW12 Kamlesh Kumari is not trustworthy as she is an interested and planted witness. He has argued that PW15 IO ACP Nagain Kaushik has admitted that he had completed the charge-sheet on 01.05.2005 as investigation from his side was complete. He has argued that the said IO has conceded that the complainant never told him about the name of Mrs. Kamlesh Kumari and therefore, he did not record her statement u/s. 161 CrPC. He has argued that her statement u/s. 161 CrPC was later recorded on 25.02.2007 i.e. after nearly two years as a measure to buttress the version of the complainant with an interested and planted witness. Besides, he has contended that the said witness is also not reliable as her credibility has been decisively impeached in her cross-examination. He has further contended that the complainant did not make any complaint against the appellant prior to the present complaint dated 12.05.2005 Ex.PW3/A though, she has alleged that he had been sexually and physically harassing her for the last two years i.e. w.e.f. year 2003. He has argued that the complainant has materially improved her complaint by alleging in her testimony about an incident dated 22.03.2004 wherein she had alleged that she was called to appear before Ms. Ashna Manzar, Chairperson of the Sexual Harassment Committee, DDA and when she asked for permission from the appellant, he molested her. He has contended that the said allegations have been demolished by the reply to RTI marked as Mark A dated 04.03.2009 of Chairperson, Women Complaint Cell reflecting that the complainant was not Page No. 8/22 called to attend meeting on 22.03.2014 by the committee.
14. He has further argued that the sanction granted u/s. 197 CrPC Ex.PW10/A has not been granted by Lieutenant Governor of Delhi but by Vice Chairman of DDA, who is not a competent sanctioning authority. He has argued that in Ex.PW10/A, PW10 has not mentioned how he derived power to grant sanction and further the said sanction was granted without any applicant of mind. He has, therefore, contended that in absence of valid sanction u/s. 197 CrPC, the trial of this case has vitiated. He has argued that the said sanction was granted under the pressure of the local MLA Mrs. Kiran Walia, who was then Chairperson of Delhi Commission for Women, on the basis of a letter written by her on 23.11.2006 Ex.PW10/D1. He has argued that the complaint/document dated 23.06.2005 Ex.PW3/2 is a forged document as the said document was never received by the IO during investigation of this case. He has argued that the IO has testified, on the basis of the case diary, that the date on the said document was put later on. IO has also admitted that he did not record any statement of the complainant regarding tendering of the said document and the said document does not bear any receiving from the police station. He has argued that the testimonies of the security guards PW1, PW4 and PW9 of the alleged incident dated 08.04.2005 are also contradictory and do not support the case of the prosecution. He has argued that the departmental inquiry was initiated against the appellant on the basis of the report of Women Complaint Cell, DDA dated 24.01.2007 pursuant to the complaint of the complainant and the disciplinary authority vide its order dated 02.04.2014, held the Page No. 9/22 appellant guilty. However, the said findings of disciplinary authority have been set aside by Lieutenant Governor vide order dated 02.03.2017 Mark Y. He has contended that the testimony of the complainant is unreliable and therefore, in absence of corroboration by independent witnesses in material particulars, the ld. Trial Court ought to have discarded the same. He has contended that the prosecution has failed to prove its case beyond any reasonable doubt and the impugned judgment of conviction is erroneous as the ld. Trial Court failed to uphold the basic principles of criminal law.
15. On the other hand, Ld. Addl. PP for the State assisted by ld. Counsel for the complainant has argued that the ld. Trial Court has properly appreciated the evidence led by the prosecution. He has contended that the complainant has consistently supported and proved her original complaint. He has submitted that there are no material contradictions or improvements in her testimony. He further submits that her testimony has been corroborated by independent witnesses including her colleague PW12 and the security guards PW1, PW4 and PW9. Thus, there is no reason to discard the credible testimony of the complainant. He has contended that even otherwise, the credible testimony of the complainant is sufficient to indict the appellant and its corroboration by independent public witness is not required to be insisted upon.
16. He has contended that sanction u/s. 197 CrPC has been duly granted by the competent authority. He has argued that even otherwise, as the allegations against the appellant are alien to his duties. Therefore, the said sanction was not even required Page No. 10/22 as the act of the appellant in outraging the modesty of his subordinate or insulting her modesty does not fall within the ambit of act committed by him while acting or purporting to act in the discharge of his official duties. He has argued that the FIR is not an encyclopedia of the entire incident and in the original complaint, the complainant had only given the nutshell of all the instances. He has contended that the alleged improvements are just explanations and details of the instances cited in the original complaint. Therefore, the said improvements can not be termed as material enough to disbelieve the otherwise trustworthy testimony of the complainant. It is further argued that the complainant did not have any control on the investigating agency and therefore, for any default committed by it including non preparation of site plan should not be a reason for depriving the complainant of the justice. It is further argued that the complainant cannot be faulted for non examination of her other colleagues as witness by the IO, though she had told about their names to him. In respect of previous complaints including an FIR, it is contended that the complainant had made genuine and true complaints against the persons who had been harassing her during her job. It has been denied that she was a habitual complainant. On the contrary, it has been contended that she had been a victim at the hands of her several senior officers including the appellant and colleagues. It has been contended that the prosecution has proved its case beyond any reasonable doubt by leading cogent, conclusive, credible and unimpeachable evidence on record. Therefore, the ld. Trial Court has committed no error in relying upon the impeccable prosecution evidence. He has Page No. 11/22 argued that the impugned judgment is lawfully sustainable as it is based upon the established principles of criminal law.
17. In the instant case, the appellant was charged with the allegations that since year 2003 till the date of filing of FIR i.e. 15.04.2005 at 8th Floor, Vikas Minar, DDA, New Delhi, he used criminal force upon the complainant with the intention to outrage her modesty and on several times uttered indecent words and comments to her with the intention to insult her modesty.
18. It is a settled principle of criminal law that in a criminal trial, the accused is presumed to be innocent till he is proved guilty beyond any reasonable doubt. Further, prosecution has to stand on its own legs and it has to prove its case against the accused beyond any reasonable doubt by leading cogent and conclusive evidence. Burden of proving its case exclusively lies upon the prosecution and in order to succeed, it has to discharge the said burden. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
19. Ld. Trial Court has held that the testimonies of the complainant and the other supporting prosecution witnesses are credible and convincing for holding the appellant guilty. In the succeeding paragraphs, the prosecution evidence shall be discussed and evaluated in detail to ascertain whether their testimonies are of sterling quality to base conviction upon them.
20. In the complaint Ex.PW3/A, in addition to three alleged dates of incident i.e. 06, 07 and 08.04.2005, the complainant has not mentioned any other date or time of the Page No. 12/22 alleged incidents of misbehavior, physical and sexual harassment committed by the appellant between the span of more than two years from the year 2003 to 2005. In her testimony as PW3, she has deposed about an additional incident dated 22.03.2004. Thus, in essence, the complainant has disclosed about only four specific dates of incidents.
21. Before adverting to the testimony of the complainant, the testimonies of the security guards for the incident dated 08.04.2005 shall be discussed. PW1 Pramod Kumar was the security officer in DDA on 08.04.2005 and he has deposed that at about 5:30-5:45 pm, he received a message on intercom from a lady that someone was harassing her on 8th floor. He has deposed that he sent two guards i.e. Shiv Charan (PW2) and Dharamvir (PW9) to inquire. PW2 has deposed that he alone went on the 8th floor and found that a lady was crying there. He brought her to the security officer (PW1) and on asking, she told that she was molested by someone. He denied that she told that she was molested by the appellant whereas PW1 has testified that she told that she was molested by the appellant. Whereas, PW9 Dharamvir has deposed that she told that she had a quarrel with her boss Ajay Gupta. He categorically denied that she told that she was molested by him. Neither PW2 nor PW9 found the appellant on the 8th floor when they reached pursuant to the directions given to them by PW1. Thus, there are material and fatal contradictions in the version of the said witnesses regarding the incident dated 08.04.2005. The ld. Trial Court has gravely erred in relying upon their inconsistent and contradictory testimonies to give credence to the testimony of complainant Page No. 13/22 /PW3 for the alleged incident dated 08.04.2005.
22. As per allegations, the appellant had been continuously physically and sexually harassing the complainant from the year 2003 to 2005 while she was working under him at DDA, Vikas Minar. The complainant/PW3 has leveled wide allegations against the appellant in respect of the alleged incidents other than aforementioned three dates i.e. 6,7 and 08.04.2005 without specifying any date and time of the said incidents. Even in respect of the said three dates, the complainant has not mentioned the time of their alleged commission and they are also vague allegations. All the incidents are alleged to have been committed by the appellant in their office at Vikas Minar, DDA during the working hours.
23. In addition to the undated and ambiguous allegations made by the complainant as detailed in paragraph no.3 of this judgment, the complainant/PW3 has deposed about additional undated and non specific allegations along with one additional allegation dated 22.03.2014. The said materially improved allegations are as under :-
i. The appellant used to chase her after office hours till her house;
ii. She used to commute from her office to her house in an auto along with her colleagues Mrs. Shashi and Mrs. Bedi, to avoid the stalking of the appellant;
iii. He used to stand outside her house, even her husband scolded him lots of time and other colleagues tried to make him understand but all in vain;
iv. He used to force her to listen to his sexual behavior with Page No. 14/22 his own wife despite her protest;
v. He used words to suggest that she should have oral sex with him;
vi. Sometimes he used to sit in the office with his trousers unzipped with his male organ out;
vii. He started snatching her purse containing her personal belonging and mobile and thereafter, he used to keep it in his almirah. Thereafter, he used to call her to her cabin and put the said purse on his male organ, used to ask her to take it in his mouth and drink its water;
viii. When she was typing the reliving letter of Ms. Renuka, he molested her by saying that now no one would save her as even her friend was being transferred;
ix. He used to stalk her to her friend's office on 3rd floor; x. In December 2004, when most of the staff was on leave, he used to molest her;
xi. In the beginning of 2005, he molested her by inserting his finger inside her vagina and smelling it; and xii. On 22.03.2004, when she sought permission of the appellant to attend the meeting for appearance before the Chairperson of Sexual Harassment Committee, Ms. Asma Manzar, he forcibly thrust his hand in her salwar near her vagina.
24. In her cross-examination, PW3 has explained the said material improvements by stating that in her complaint Ex.PW3/A she had given the nutshell of the allegations and the instances in brief. Whereas, in her examination in chief, she has elaborated the incidents in detail. Admittedly, the FIR can not be the encyclopedia of all the allegations. However, when the Page No. 15/22 complainant wrote her complaint Ex.PW3/A in her own handwriting running into nine pages, it was expected for her to have incorporated all the allegations against the appellant, particularly the allegations pertaining to specific dates and which related to sexual harassment in the form of physical touch on her private parts. The omission to mention the said added allegations in her testimony is very material and the ld. Trial Court failed to appreciate the said vital omission while appreciating the credibility of the version of the complainant.
25. In respect of the additional incident dated 22.03.2004 wherein she had alleged that she was called to appear before Ms. Ashna Manzar, Chairperson of the Sexual Harassment Committee, DDA and when she asked for permission from the appellant, he molested her. The said allegations have been demolished by the reply to RTI marked as Mark A dated 04.03.2009 of Chairperson, Women Complaint Cell reflecting that the complainant was not called to attend meeting on 22.03.2014 by the said committee.
26. PW12 Smt. Kamlesh Kumari has been examined to corroborate the version of the complainant. She has deposed that she used to visit Vikas Minar from Vikas Sadan for her personal work and many times, used to ask the appellant not to harass the complainant. She has deposed that at Vikas Sadan at about 4 pm she saw that the appellant was touching the complainant near her seat in an inappropriate manner, sometimes over her cheeks and over her shoulder and he was bending towards her. In her cross- examination, she was confronted with her statement u/s. 161 CrPC Ex.PW12/D1 dated 25.02.2007 where the said fact was not Page No. 16/22 recorded and therefore, it is a material improvement. She has admitted that the appellant was not posted at that time in Vikas Sadan. She has further testified that she met the appellant twice and told him not to harass the complainant. She was again confronted with her statement u/s. 161 CrPC where the said fact was not recorded. The complaint Ex.PW3/A is conspicuously silent about the name of Smt. Kamlesh to have witnessed the alleged incidents. Further, PW15 IO ACP Nageen Kaushik has testified that he did not record any statement u/s. 161 CrPC of Mrs. Kamlesh Kumari as complainant never told her that she is a witness of this case. As per PW15, he completed investigation from his side on 01.05.2005. The statement u/s. 161 CrPC of Smt.Kamlesh was recorded on 25.02.2007 i.e. after nearly two years of the incident. PW12 was not posted with the complainant at the place of alleged incident i.e. Vikas Minar during the alleged period of incident. In these circumstances, it appears that PW12, who is from different office, is a planted witness and she has been examined after two years only to buttress the crumbling case of the prosecution. Therefore, she is not a credible witness and the ld. Trial Court has erred in relying upon her corroboration of the complaint to arrive at the guilt of the appellant.
27. The prosecution has examined peon of the appellant namely Sh. D.C. Sharma as PW8 to corroborate the version of the complainant. However, he has turned hostile and failed to support the case of the prosecution. He has explained the sitting plan/arrangement of the appellant and the complainant in the office. He has testified that the complainant used to sit in a cabin Page No. 17/22 along with a lady namely Gulshan and more than 20-25 ladies staff were working on the 8th floor. He has further deposed that another peon namely Vijay Pal was also working with the appellant and he used to sit in his cabin. He has testified that there was a window on the wall of the cabin of the appellant and the telephone instrument was used to be kept in the said window. He has clarified that for attending telephone calls on the said instrument, there was no need to go inside the cabin of the appellant. He has further deposed that if any person other than staff wanted to meet the appellant, he was required to send a slip through the peon Vijay Pal to the appellant for seeking his permission to enter his cabin. The sitting arrangement of the appellant and complainant in the office, presence of an open and transparent window in the cabin of the appellant, ever presence of other staff members including a peon Vijay Pal in the said office and his non examination by the prosecution has further rendered the version of the complainant doubtful. Thus, the said prosecution witness has further deflated the version of the complainant.
28. The complainant has deposed that she had informed about the misconduct and misbehavior of the appellant to Ms. Renuka and her another female colleague. She has testified that she used to commute with Mrs. Shashi and Mrs. Bedi to avoid stalking by the appellant. She has deposed that her husband and other colleagues also scolded the appellant for his misconduct. As per PW8, around 20-25 female staff was deployed and working on the 8th floor of Vikas Minar i.e. the place where the alleged incident took place. However, the prosecution did not Page No. 18/22 examine any of the aforementioned independent person to corroborate the allegations of the complainant. It is unbelievable that all the staff members of DDA on 8 th floor at Vikas Minar were under the influence and pressure of the appellant. He was not the disciplinary authority of all the said staff members and therefore, there was no reason for them to be silent against the alleged sexual harassment committed by him against their female colleague. Rather, it was expected of them to have raised their voice and concern against the said alleged intolerable and unacceptable misconduct of the appellant, immediately on receipt of its information from the complainant. However, neither any of them made any complaint to their senior officers nor they came forward to depose in favour of the complainant. Their non examination has weakened the case of the prosecution. Even though, there is no reason to hold that the aforementioned officials of DDA were under any influence of the appellant, but still if for the sake of arguments, it is assumed otherwise, there was no reason for the prosecution to not examine the husband of the complainant. The said omission has further created doubt in the story of the prosecution.
29. The misbehavior complained of was during office hours and there would be a number of independent staff persons who could depose about the incident, if any. However, the prosecution did not examine any of the staff persons of the said office in support of the allegations made. As per the complainant, Mrs. Shashi Gulati, Mrs. A.K. Bedi, Dr. R.L. Dang, Sh. Sanjay, Sh. M.K. Chawla, Sh. Harbans Lal and Sh. S.K. Aggarwal, all the officials of her office, were aware about the misconduct of Page No. 19/22 the appellant. However, none of them has been examined to give credence to the testimony of the complainant. Admittedly, the uncorroborated version of the complainant can be sufficient to indict the accused. However, when the testimony of the complainant suffers with the flaws of inconsistencies, improbabilities, material contradictions and improvements, the prudence demands that her testimony should not be relied upon without corroboration in material particulars. In the instant case, the uncorroborated testimony of the complainant for being inconsistent, contradictory and having material improvements is not sufficient to arrive at conclusive finding of guilt of the appellant.
30. The complainant has made more than 20 complaints against her at least seniors and colleagues during her office tenure from 1997 to 2011. The said complaints were for varied reasons including sexual harassment. She had also lodged an FIR No.983/2000 U/s. 509/34 IPC PS Hauz Khas against her seniors with the allegations that they uttered vulgar words to her. Thus, it is evident that she was aware about the lawful remedy available against any kind of misconduct including sexual harassment. Despite that, she remained quite for nearly two years in lodging complaint against the complainant herein. In the year 2005, she was an experienced and mature lady with history of an unfortunate incident regarding which she had already lodged an FIR. Therefore, it is unbelievable that she kept on tolerating the unwelcome sexual advances of the appellant for two long years without any objection or reporting the matter to the senior officers or the police. The said inordinate delay of more than two Page No. 20/22 years has remained unjustified and unexplained. The said delay has further casted doubt in the credibility of the complaint.
31. The accused persons in the aforementioned FIR have been acquitted by the ld. Sessions Court and the said acquittal has been confirmed by the Hon'ble Delhi High Court on 25.11.2019. In view of so many complaints made by the complainant against her seniors during her career in almost all her postings reflect that she is a compulsive and habitual complainant. Thus, the possibility of the complainant in exaggerating the minor official differences with the appellant to convert them into the present grave allegations is not far fetched.
32. In his statement u/s. 313 CrPC, the appellant has stated that he has been falsely implicated in this case as the complainant used to come late to the office and used to misuse the slips issued to him for tea snacks. He has further stated that she used to manipulate the office records and when he objected to the said malpractices, she falsely implicated him in this case. PW8 Sh. D.C. Sharma was a peon of the appellant. The said prosecution witness has corroborated the said defence of the appellant when he deposed that the complainant used to come office late at 11 am and used to leave early after lunch at 2 or 3 pm. He has also deposed that the appellant told a staff member that tea or coffee be called only once in a day otherwise the amount of the same is being deducted from his salary. He has deposed that due to this episode, the complainant threatened the appellant to see him and implicate him in a false case. Thus, through prosecution witness only, the defence of the appellant has been established. In these circumstances, it cannot be ruled Page No. 21/22 out that the act of the appellant to discipline his subordinate has proved counter productive to him in the form of the present complaint. Thus, it is possible that the present complaint is another complaint in the series of her several complaints guided by her aforementioned motive of teaching a lesson to her senior who was dutifully attempting to discipline her. Hence, defence of the appellant cannot be termed as improbable.
33. Having regard to the above facts and circumstances of the case, the uncorroborated, materially improved and improbable testimony of the complainant coupled with unjustified and inordinate delay in reporting the matter by the legally aware complainant, her allegations have not culminated into a conclusive evidence against the appellant. Thus, the prosecution has failed to prove its case beyond any reasonable doubt and the appellant is entitled to benefit of doubt. The ld. Trial Court has failed to comprehensively analyze the facts of this case from all the possible and pragmatic angles. Therefore, in view of the settled criminal jurisprudence, the impugned judgment is not sustainable in law. Accordingly, the impugned judgment and the consequent order on sentence are hereby set aside. The appellant is acquitted for the offence u/s. 354/509 IPC.
34. TCR along with copy of this order be returned for its consignment to the record room through ld. Trial Court. Appeal file be consigned to the record room after due compliance. Announced in the open court on 18.08.2023 (DHEERAJ MOR) ASJ-02,Central,THC/Delhi Page No. 22/22