Delhi District Court
Criminal Appeal No. 15/2017 vs State on 12 March, 2018
IN THE COURT OF Dr. KAMINI LAU: SPECIAL JUDGE
(P.C. ACT) CBI01 (CENTRAL):TIS HAZARI COURTS: DELHI
1. Criminal Appeal No. 15/2017
Soudatt Sharma
S/o. Sh. Yagdutt Sharma
R/o H.No. 81, Village & P.O. Jhajjhar,
District Bulandshehar, U.P.
................ Appellant
VERSUS
State
.............. Respondents
Date of Institution : 02.11.2017
Judgment Reserved on : 07.03.2018
Judgment Pronounced on : 12.03.2018
2. Criminal Appeal No. 13/2017
Manish Dhama
S/o Sh. Kushpal Singh,
R/o House No. 369, Patti Chakersenpur,
Town Khekhra, District Baghpat, U.P.
................ Appellant
VERSUS
State
.............. Respondents
Date of Institution : 03.11.2017
Judgment Reserved on : 07.03.2018
Judgment Pronounced on : 12.03.2018
JUDGMENT:
(1) Vide this combined judgment, I shall dispose off two Criminal Appeals i.e. Criminal Appeal No. 13/2017 titled as "Manish Dhama Vs.
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 1/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) State" and Criminal Appeal No. 15/2017 titled as "Soudatt Sharma Vs. State" for the sake of convenience as both the Criminal Appeals impugn the same Judgment dated 18.07.2017 and Order on Sentence dated 06.10.2017 passed by the Ld. Trial Court in Case FIR No. 72/2013 Police Station Prasad Nagar under Section 354/354D/506/34 IPC, whereby the Ld. Trial Court has convicted both the appellants namely Soudatt Sharma and Manish Dhama and sentenced them Rigorous Imprisonment for a period of Six Months and fine for a sum of Rs.10,000/ each for the offence under Section 354D/34 Indian Penal Code and further sentenced both the appellants Simple Imprisonment for a period of Six Months and a fine for a sum of Rs.5,000/ each for the offence under Section 506/34 IPC. (2) The brief facts of the case are that on 08.04.2013 a complaint was given by the complaint in the Police Station against the accused persons stating therein that the accused persons Soudatt Sharma and Manish Dhama (i.e. appellants herein) were the students of her class and were troubling her for the past 45 days by hitting her on her way to and from the institute and in the Metro Station. The complaint had further alleged that the accused persons passed vulgar comments upon her, send her vulgar messages stating that they would get her raped and killed and at times while standing in a group of 45 persons abused her in filthy language and on 05.04.2013 at around 5.46 p.m. they both have jointly messaged her. (3) Upon the complaint given by the complaint, investigation was conducted by the police and charge sheet under Section 354/354 D/506/509/34 IPC was filed before the court. Ld. Trial Court settled the charges against the accused persons who pleaded not guilty and claimed
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 2/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) trial. During trial, in support of its case, the prosecution examined as many as five witnesses out of which some of witnesses were formal in nature and some are of material in nature. PW1 is the complaint / prosecutrix 'X', PW2 is the Nodal Officer, PW3 is Ct. Sharad Yadav who is witness of investigation, PW4 is the father of prosecutrix 'X' and PW5 is the Investigating Officer of the case.
(4) Upon completion of the trial, the Ld. Trial Court has convicted both the appellants Soudatt Sharma and Manish Dhama and sentenced them Rigorous Imprisonment for a period of Six Months and fine for a sum of Rs.10,000/ each for the offence under Section 354D/34 Indian Penal Code and further sentenced both the appellants Simple Imprisonment for a period of Six Months and a fine for a sum of Rs.5,000/ each for the offence under Section 506/34 IPC.
(5) Aggrieved by the impugned judgment and order on sentence, the appellants / accused approached this court by way of this appeal on the ground that the impugned judgment and order on sentence are based on surmises and conjectures and contrary to law and facts of the case and as such the same is not maintainable and is liable to be set aside and quashed. It is averred that the Ld. Trial Court has not considered the material placed on record and the impugned judgment and order on sentence have been filed in haste and arbitrary manner. It is further averred that the impugned judgment and order on sentence suffer from many legal infirmity and have been passed in predisposed manner and without any thoughtful consideration to the facts and circumstances of the case without applying the judicious mind. It is submitted that the Ld. Trial Court has erred in convicting the appellants in the absence of the conclusive proof of offence
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 3/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) as there are inconsistencies and discrepancies in the testimonies of the prosecution witnesses and such testimonies are liable to be discarded. It is further averred that the Ld. Trial Court has failed to appreciate that there are number of material improvements and contradictions in the complaint dated 08.04.2017 filed by the complaint, her examinationinchief and her cross examination recorded before the court and that the complaint Ex.PW1/A itself suggests that the accused persons including the appellant were well known to the complainant over a period of time. It is further averred that there is no mention about any alleged incidents dated 03.04.2013 and 04.04.2013 either in the complaint or FIR or statement of complainant under Section 161 Cr.PC and it is only subsequently that she tried to improve her version in her examination recorded before the Ld. Trial Court. It is pointed out that even the father of the complaint has made no mention of the alleged incidents dated 03.04.2013 and 04.04.2013 in his statement under Section 161 Cr.PC or in his examinationinchief before the Ld. Trial Court. It is also pointed out that the complainant has nowhere mentioned the mode of alleged threats extended to her by the accused / appellants and she is, therefore, making baseless allegations without any iota of truth. It is submitted that the Ld. Trial Court has miserably failed to appreciate the fact that the IO did not seize the mobile phones of the accused / appellants as the same would have clearly shown the period of time over which the complainant was known to the appellants and the CDR submitted by the prosecution is only pertaining to six days i.e. from 01.04.2013 till 06.04.2013 in case of the appellants and from 01.04.2013 to 21.11.2013 in case of mobile of the complainant, which cannot be made sole base of conviction of the appellants / accused. It is pointed out that even according
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 4/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) to the prosecution there are two calls from the phone of the accused of 55 seconds duration and 00 second duration, therefore, it could not be conclusively held that the appellants used to make phone calls to the complainant with intention of stalking. It is further averred that the testimony of the complainant has been in fact held by the Ld. Trial Court as vague and insufficient and that the alleged threat of killing and rape is only vague as no mode of the alleged threats has been given by the complainant. It is also averred that there is no iota of acceptable evidence before the court which can be said to have brought home the charges against the appellants and the Ld. Trial Court has committed an error in convicting the appellants under Section 354D/506/34 IPC purely on surmises and conjectures which are not sufficient to base the conviction of the appellants. It is further pleaded that the Ld. Trial Court has convicted the appellants only on the basis of testimony of PW1 which testimony is inconsistence and vague and it is a settled law that no conviction can be held on the basis of vague allegations and without substantiate evidence.
(6) It is argued by the Ld. Counsels appearing on behalf of the appellants / accused persons that the impugned judgment and order on sentence suffer from inherent defects, infirmities and illegality as there is no clear, conclusive, impeachable and inspiring evidence to held the appellants / accused for commission of the offence under Section 354D IPC (Stalking) beyond reasonable doubt. It is argued that the Ld Trial Court has in fact erred in facts as well s in law in convicting the appellants / accused persons since the victim / prosecutrix 'X' in her testimony has not specifically named the appellant Soudatt Sharma and that specific allegations made by her were against appellant / accused Manish Dhama. It
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 5/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) is further stated that there is improvements and contradictions in the oral testimony of the victim / prosecutrix 'X' viz a viz her complaint dated 8.4.2013 Ex.PW1/A. It is also pointed out that in the compliant, victim / prosecutrix 'X' has only stated that she has been abused by two boys of her class for 4 to 5 days but no specific material has been given. It is further pointed out that only one alleged message (SMS) was stated to be send on 5.4.2013 at 5:46 PM but in her depositions in the court, the victim / prosecutrix 'X' has made improvements and given specific dates of 3.4.2013 and 4.4.2013 with regard to that the allegations were general in complaint and there is no corroborative evidence in the nature of CDRs of the said dates. It is further pointed out that there is nothing on record to link the mobile of Sunil to the appellant / accused Soudatt Sharma and no CDR of the said phone have been placed on record to show that the appellant Soudatt Sharma had even sent any message (SMS) to the victim / prosecutrix 'X'. It is further argued that in her depositions, the victim / prosecutrix 'X' has contradicted the statement made by PW3 Sarad Yadav who stated that on 8.4.2013 the complainant pointed over to two boys namely Manish Dhama and Soudatt Sharma and informed that the above said accused persons had assaulted her with the intention to outrage her modesty whereas PW4 the father of the victim / prosecutrix 'X' had stated that she had told him that two boys namely Manish Dhama and Soudatt Sharma who were studying in her class, had passed comments and abused her in a very filthy language and also threatened her to kill her. It is submitted that the depositions of both these witnesses (i.e. PW3 and PW4) is on the basis of hear and say and contradict the testimony of victim / prosecutrix 'X' who has alleged that the accused persons used to stalk her in
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 6/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) Metro Station and from Metro Station to the Institute. It is argued that no person from the Institute has been examined despite the fact that it is public place. Further no CCTV footages of Metro Station have been produced. It is also submitted by the Ld. Counsel for the appellant Soudatt Sharma that the accused persons are young boys whose entire carrier is at stake and in case conviction is upheld then the benefit of Probation of Offenders Act be given to both the appellants / accused persons. Ld. Counsels for the appellants / accused have placed their reliance upon the following judgments:
Tomasco Bruno Vs. State of UP reported in 2015 (7) SCC 178. Parveen Kumar Vs. State Crl. Appeal No. 692/1999. State of Karnataka Vs. Mapilla P. P. Soopi reported in AIR 2004 SC 85.
Chittaranjan Roy Vs. State Tripura reported in 2011 Law Suit Toram Singh Vs. State of MP reported in 2002 (5) SCALE 407. (7) In so far as the Respondent / State is concerned, no reply has been filed and only written submissions have been placed on record.
Further, the Ld. Addl. PP has orally argued that there is no error and illegality whatsoever in the impugned judgment on the ground taken by the appellants / accused persons and are devoid of any merits. It is submitted that Section 34 IPC has been invoked against both the appellants / accused persons with regard to which there are categorical findings in Para 36 and 37
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 7/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) of the impugned Judgment. It is further submitted that the victim / prosecutrix 'X' has specifically deposed with regard to the incident dated 3.4.2013 and 4.4.2013 on which there is no specific cross examination on behalf of the Ld. Defence Counsels and hence in corroboration with the oral statement, the plea of improvement cannot be taken and in this regard the Ld. Addl. PP for the State has placed his reliance upon the following judgment:
Tehsildar Singh and Anr. Vs. The State of Uttar Pradesh 1959, AIR 1012, 1959 SCR Supl. (2) 875.
V. K. Mishra & Anr. Vs. State of Uttarakhand & Anr. SC on 28.07.2015 (Crl. Appeal No. 1247/2012) with Criminal Appeal No. 1248/2012.
(8) In so far as the allegations regarding nonseizure of the mobile phone of the appellants / accused persons is concerned, it is pointed out by the Ld. Addl. PP for the State that the charge sheet clearly specifies that the accused persons did not produce their mobile phones and had stated that they had lost their mobile phones and in this regard an adverse inference is required to be taken against them under Section 114 of Indian Evidence Act. It is submitted that even otherwise the call detail record (CDR) of the mobile phones of the appellants / accused prove that the incident took place within the span between 6 to 7 days which fact has been corroborated by the oral testimony of the prosecutrix 'X'. It is further argued that there is no reason for the victim / prosecutrix 'X' to have falsely implicated the appellants / accused persons and the defence taken by the accused that the
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 8/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) victim / prosecutrix 'X' had demanded Rs.5,000/ from them and when they refused they have been falsely implicated, is unbelievable since the victim / prosecutrix 'X' belongs to a good well educated family her father being a journalist and there would not be any occasion why she would have demanded any money from the appellants / accused persons. In this regard, Ld. Addl. PP for the State has placed his reliance upon the following judgments Sunil Kumar Vs. State of Government of NCT of Delhi (2003) (11) SCC 367.
Namdev Vs. State of Maharashtra (2007) 14 SCC 150.
Manish Vs. State, 2000 VIII AD SC 29.
A. Bhai Vs. State, AIR, 1989 SC 696.
Appa Bhai & Anr. Vs. State of Gujarat, AIR 1998 SC 696.
(9) I have considered the rival contentions and have gone through the Trial Court record and carefully gone through the testimony of various witnesses. Before coming to the present case, it is necessary for me to note that recently Delhi has become one of the most dangerous cities for women. Acts of rude and continuous staring of body parts, ogling, leering, lewd remarks and gestures, passing vulgar comments and filthy jokes when women passby, slywhistling, uncouth laughter, brushing against woman's body, gripping hand and pinching, are the things which women in the City face all the time and what exactly happens simply depends upon the opportunity which the perverts get. EveTeasing is a ridiculous form of enjoyment for men but physical and mental torture for women and Men who indulge into such enjoyment do not seem to be realize how a woman may be
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 9/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) affected by their comments and acts. These men feel it is right to show their attention and aggression towards woman, they rather feel validated by acting sexually and aggressively towards women in public. (10) I further note that our society often blame women/ girls by claiming that women aggravate eve teasers by failing to wear modest clothes whereas on the contrary it is observed that even those wearing dresses which society claims are decent, are also not spared but rather teased to a greater extent. In any case, Eve Teasing has not to be judged by men by their own parameters but by women as to how they feel about the same. To a pervert mind, it does not matter how a woman is dressed, how old she is, how pretty she is, where she is (whether in a public transport or hospital etc.). Eve Teasing is almost institutionalized in public transport and public places and what these perverts look for are, easy preys and vulnerable victims so that they are not got caught.
(11) The enormity of the problem of Eve Teasing and the need to tackle the same at the National Level was recognized by the Hon'ble Apex Court when the issue came up before it in the case of The Deputy Inspector General of Police and Anr. Vs. S. Samuthiram, in Civil Appeal No. 8513/2012, decided on 30.11.2012 when the Hon'ble Bench comprising of Hon'ble Mr. Justice K.S. Radhakrishnan and Hon'ble Mr. Justice Dipak Misra came down heavily on the States and UTs and declared a Zero Tolerance Campaign where Eve Teasing had to be dealt with an Iron Hand. In this case the Hon'ble Apex Court Bench had an occasion to examine the existing laws relating to Eve Teasing and expressed their deep anguish over the insufficiency of the existing laws to tackle the menace of
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 10/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) Eve Teasing and observed as under:
"..... Normally, it is difficult to establish this and, seldom, woman files complaints and often the wrong doers are left unpunished even if complaint is filed since there is no effective mechanism to monitor and follow up such acts. The necessity of a proper legislation to curb eveteasing is of extreme importance, even the Tamil Nadu Legislation has no teeth...."
(12) In the said case the Hon'ble Apex Court Bench further expressed its disgust over the existing state of affairs issued certain directions to all the States, Union Territories and Superintendents of Police all over the country till such time a suitable legislation is enacted to suitably curb the menace of Eve Teasing, which I reproduce as under:
"....... Before undertaking suitable legislation to curb eveteasing, it is necessary to take at least some urgent measures so that it can be curtailed to some extent. In public interest, we are therefore inclined to give the following directions:
(1) All the State Governments and Union Territories are directed to depute plain clothed female police officers in the precincts of bus stands and stops, railway stations, metro stations, cinema theaters, shopping malls, parks, beaches, public service vehicles, places of worship etc. so as to monitor and supervise incidents of eveteasing.
(2) There will be a further direction to the State Government and Union Territories to install CCTV in strategic positions which itself would be a deterrent and if detected, the offender could be caught.
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2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) (3) Persons incharge of the educational institutions, places of worship, cinema theaters, railway stations, busstands have to take steps as they deem fit to prevent eveteasing, within their precincts and, on a complaint being made, they must pass on the information to the nearest police station or the Women Help Centre.
(4) Where any incident of eveteasing is committed in a public service vehicle either by the passengers or the persons in charge of the vehicle, the crew of such vehicle shall, on a complaint made by the aggrieved person, take such vehicle to the nearest police station and give information to the police.
Failure to do so should lead to cancellation of the permit to ply.
(5) State Governments and Union Territories are directed to establish Women' Helpline in various cities and towns, so as to curb eveteasing within three months.
(6) Suitable boards cautioning such act of eve teasing be exhibited in all public places including precincts of educational institutions, bus stands, railway stations, cinema theaters, parks, beaches, public service vehicles, places of worship etc. (7) Responsibility is also on the passersby and on noticing such incident, they should also report the same to the nearest police station or to Women Helpline to save the victims from such crimes.
(8) The State Governments and Union Territories of India would take adequate and effective measures by issuing suitable instructions to the concerned authorities including the District Collectors and the District Superintendent of Police so as to take effective and proper measures to curb such
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 12/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) incidents of eveteasing...."
(13) In so far as 'Stalking' is concerned, in the recent years Stalking has been accepted to be a crime having caught wide spread attention world over and cases involving stalking of celebs and also of ordinary people have fueled demands for creating/ strengthening the law relating to Stalking. (14) The term 'Stalking' covers acts of any person who willfully, maliciously and repeatedly follows or harasses another person; who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family; follows the victim or any other person; telephones, sends electronic messages to, or otherwise contacts, the victim or any other person; enters or loiters outside or near the victim's or any other person's place of residence or of business or any other place frequented by the victim or the other person; interferes with property in the victim's or any other person's possession (whether or not the perpetrator has an interest in the property); gives offensive material to the victim or any other person or leaving it where it will be found by, given to or brought to the attention of, the victim or the other person; keeps the victim or any other person under surveillance; acts in any other way that could reasonably be expected to arouse apprehension or fear in the victim for his or her own safety or that of any other person with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of any other person and the course of conduct engaged in actually did have that result. [Source:
California Crimes Act 1998 Section 646.9 and Victoria Criminal Code 1958 Section 21 (a)]. Stalking becomes illegal when the perpetrator
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 13/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) breaches the legal definition of harassment (as provided herein above) like sending messages to an unwilling recipient or tries to communicate or keeps a watch over the other person being aware that his behaviour is unacceptable. This is a form of a mental (or even physical) assault in which the perpetrator repeatedly, unwantedly and disruptively breaks into the life of a victim, with whom they may no longer have any relationships as has happened in the present case and this obsessive compulsive personality disorder if permitted to go unchecked and untreated, can ultimately result into a situation where the perpetrator may also inflict aggravated violence on the victim. Stalking consists of series of acts which occur over a period of time which if taken in isolation may not be illegal but cumulatively the effect of these acts is mental abuse/ harassment which is grossly illegal. (15) Many jurisdictions world over having taken up this issue with all seriousness passed antistalking laws and these provide a variety of definitions of the offence. In United Kingdom a specific legislation (Punishment from Harassment Act1997) has been put in place to tackle this menace of Stalking which not only provides for a punishment upto 5 years for the first time offender but also enables the Court of Law to pass appropriate restrain orders wherever required for protection of the victim. (16) The Canadian Criminal Code specifically makes Criminal Harassment punishable and the definition of Criminal Harassment includes the specific crime of Stalking. Section 264 of the Canadian Code provides for an imprisonment upto five years in cases of Stalking. The Canadian Code recognizes the right of very person to end a relationship. Even a former spouse or a partner when told that their attention is not welcome has to stop communicating and in case of violation is liable to proceeded against
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 14/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) under Section 264 of the Canadian Code.
(17) Stalking is a specific crime in all 50 US States where it is classified as either a felony (serious crime) or misdemeanour, and in most parts of Australia where the punishment provided may extend to a maximum of 10 years [Victoria Crimes Act 1958 Section 21(a)]. (18) Indian society too is struggling with ways and means to deal with this crime which is particularly directed towards young women.
Stalking which unfortunately had earlier missed the attention of the Indian Policy Makers and Legislators was made an offence in the year 2013 when the provision of Section 354D was inserted in the Statute Book which provisions empowers the Courts to intervene in time so as to prevent a greater harm to the victim. Needless to say, a Stalker cannot be permitted to roam around freely for the reason that his activities can be dangerous to the life of another. Though Section 354D IPC has been inserted in the State Book yet much more is requried to be done since in the absence of an exclusive law on the subject, the Courts of Law in India have been left grappling to deal on the following aspects:
The civil aspects of Stalking.
Law providing for the maintenance of record of the stalkers and victims.
Law enabling the Courts of Law to pass appropriate orders of restrain (injunctions) with regard to movement of the accused (as in UK) so that the victims are suitably protected from any kind of mental and physical harm.
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 15/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) Providing for a compulsory risk assessment of the victims before deciding on the sentence of the accused.
Providing for compulsory treatment of the convict (for Stalking behaviour) during the jail term (to prevent Recidivism).
(19) From what has been noticed above, Stalking on the one hand essentially reflects a personality disorder of the perpetrator whereas on the other hand it tends to put the victim and his/her family at a very high mental and physical risk on the hands of such perpetrator. The suffering undergone by the victims and his/ her family when faced with such unwanted crank calls, communications, monitoring and distressing intrusions is immense. A potential stalker if not treated on time can cause serious physical and mental harm to the victim and any kind of soft approach by the Court can be dangerous and fatal for the victim. Usually instances of Stalking which do not involve physical assault go unreported. It is only when a Stalker poses a potential threat to the victim that the family approaches the Law Enforcement Agencies and the Courts. While in the process what gets ignored is the mental trauma which the victim and his/ her family face during this period. Keeping in view the rise in number of reported cases in the recent past, the Courts of Law are expected to seriously and sternly deal with the issue since there is ample evidence in the studies conducted internationally which show that the behaviour of the perpetrator often tends to escalate and he becomes more obsessed and dangerous resulting into many a women being wounded or murdered.
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2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) (20) In the present case, at the very Outset I may observe that the victim / prosecutrix 'X' is a young girl aged about 21 years who at the relevant time was student and both the appellants / accused persons were studying with the prosecutrix 'X' in the same Institute. She used to go to the Institute to pursue her further studies when she faced the harassment inflicted upon her by the appellants / accused persons. Her oral testimony finds material confirmation from the testimony of her father (PW4) who confirmed that his daughter i.e. victim / prosecutrix 'X' had complained to him regarding the appellants / accused making abusing comments upon her and having abused her in filthy language and also sent text message to her in filthy language. In fact her father also confirmed that the appellants / accused threatened her to kill her (victim / prosecutrix 'X') and it was then that he made complaint to the police. Both the victim / prosecutrix 'X' and her father (PW4) have been subjected to sustained cross examination wherein they confirmed that the dates of the incident were between 01.4.2013 to 05.04.2013. In so far as the victim / prosecutrix 'X' is concerned, she in her cross examination has clarified having received three messages (SMSs) from the appellants / accused persons and further clarified that only one message was opened whereas remaining two messages were not opened. She discloses that the contents and language of those messages (SMSs) were vulgar and filthy and further clarifies that the messages (SMSs) sent to her were sent from Internet site and did not open in her phone she was using which phone actually belongs to her mother. In this regard I may observe that the prosecutrix 'X' is the victim with no background of having any interaction with the appellants / accused persons. She is a young girl belonging to good educated family her father being the
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 17/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) journalist by profession and there is no reason why she would falsely implicate the appellants / accused persons and create a state against them. She has stood by her testimony on material particulars and it is settled law that in the general rules the court can act on the single testimony of the victim / prosecutrix 'X' when it is found to be reliable. [Ref: State of Rajasthan Vs. Biram Lal reported in 2005 AIR (SC) 2327 and State of Himachal Pradesh Vs. Asha Ram reported in AIR 2006 SC]. (21) The victim / prosecutrix 'X' has not only made specific allegations against the appellants / accused persons but she has duly explained the manner in which she had been followed by the appellants / accused persons and abused with filthy and vulgar language against her. The Hon'ble Apex Court in the case of Vishnu Vs. State of Maharastra reported in 2006 AIR (SC) 508 had observed that:
"..... In the traditional nonpermissive bounds of society of India, no girl or woman of selfrespect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married with suitable match. Not only she would be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracized and outcast from the society she belongs to and also from her family circle....."
(22) Given the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complaints of stalking or molestation be viewed with doubt, disbelief or suspicion? To do so is to justify charge of male chauvinism in a male
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2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) dominated society. [Ref. Bharwada Boginbhai Hirji Bhai Vs. State of Gujarat reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1)] (23) I also note that in her cross examination, the victim / prosecutrix 'X' has confirmed the allegations she has made against the accused. In fact she has never been confronted with regard to the incident as narrated by her or crossexamined on the aspect of the alleged incidents or dates mentioned by her or the alleged improvement. Though, initially in her complaint to the police the prosecutrix 'X' did not specify the dates but had specifically mentioned the period of stalking. However, I note that later in the court when she specified the dates, she was never crossexamined on the said aspect by the Ld. Counsels for the appellants / accused nor she was confronted with her earlier statement / complaint Ex.PW1/A, the FIR or her statement under Section 161 Cr.PC and hence under the given circumstances it is now not open to the appellants / accused persons to raise these issues (Reference in this regard is made to the Judgments in the case of "Tehsildar Singh and Anr. Vs. The State of Uttar Pradesh" reported as 1959, AIR 1012, 1959 SCR Supl. (2) 875 and "V. K. Mishra & Anr. Vs. State of Uttarakhand & Anr." SC on 28.07.2015 (Crl. Appeal No. 1247/2012) with Criminal Appeal No. 1248/2012).
(24) It is a settled law that a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 19/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) cognizable offence. [Ref.: Superintendent of Police, CBI Vs. Tapan Kumar Singh reported in (2003) 6 SCC 175].
(25) I also note in the present case the evidence on record particularly the testimony of the victim / prosecutrix 'X' itself shows that the appellants / accused persons were seeking her attention to her annoyance. The oral testimony of the victim / prosecutrix 'X' finds due corroboration from the CDRs of the appellants / accused duly proved by Sh. Surender Kumar, Nodal Office (PW4) and her father (PW4). It is also evident from the charge sheet that the accused persons were reluctant from the handing over their phones to the IO and now under these circumstances they cannot take advantage of these facts.
(26) Further, the ground raised by the Ld. Counsels that there had been a delay of three days in registration of the FIR, I hold that it will not be fatal to the prosecution case keeping in view the peculiar facts of the present case wherein a young girl had made specific allegations against the appellants / accused persons and informed her father. Given the circumstances the family normally take time to react such a situation for the fear and exposing their young unmarried daughter to the cumbersome legal process and hence the delay under the given circumstances is well understood. Further claim of the appellants / accused persons that the CCTV footages have not been collected, will again not be fatal to the prosecution case since the appellants / accused persons have failed to place on record any material to prove that CCTV cameras were installed at the spot of incident.
(27) In so far as the arguments of the Ld. Counsels for the appellants/ accused that there was no public witness to support the testimony
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 20/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) of the prosecutrix 'X' despite the fact that all the incidents took place at public places. In this regard, I may observe that it is a matter of common experience that people now a days are insensitive even when a crime is committed in their presence and they withdraw from the victim vigilante taking themselves away from the court and not wanting to get involved in the fear of inconvenience being caused to them without any commensurate benefit (Reference in this regard is made to the Judgments in the case of "Manish Vs. State", reported as 2000 VIII AD SC 29 and "A. Bhai Vs. State, reported as AIR 1989 SC 696" Supra.).
(28) Also, merely because the IO has conducted investigations which are not up to the mark or are faulty, cannot be a ground to throw away the best evidence in the form of testimony of victim / prosecutrix 'X' herself when there is no reason to disbelieve her version.
(29) Now I come to the findings given by the Ld. Trial Court which I reproduce as under:
"...... 24. Both accused in the present case had been charged for the offences punishable under Section 354, 354 D, 506 and 509 all read with Section 34 IPC.
25. In order to establish the commission of offence punishable U/s 354 IPC , it has to be established by the prosecution before the Court that both accused persons in furtherance of their common intention used criminal force against 'X' or assaulted 'X' with the intention to outrage her modesty or with the knowledge that by that act they would be likely to outrage her modesty.
26. In order to establish the offence of stalking defined and punishable U/s 354 D IPC the prosecution has to establish that the accused persons repeatedly followed 'X' and contacted her or attempt to contact her repeatedly in order to foster personal interaction, despite a clear indication of disinterest by her.
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 21/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State)
27. Section 506 IPC makes criminal intimidation punishable. In order to constitute the offence of criminal intimidation it has to be established by the prosecution that the accused persons in furtherance of their common intention threatened 'X' with any injury to her reputation, person or property with the intent to cause alarm to her. This threat should be real and a mere outburst is not sufficient to constitute the said offence.
28. In order to establish the offence punishable under Section 509 IPC , it has to be established by the prosecution that the accused persons in furtherance of their common intention with the intention to insult the modesty of 'X' had uttered words intending that such words be heard by 'X'.
29. 'X' and her father are the only public witnesses in the present case. However, it is 'X' only who is the victim as well as the only person who can depose regarding the incident before the Court as the testimony of her father is limited to the extent what 'X' had told him and nothing had happened in the presence of father.
30. It is deposed by 'X' and her father that after receiving text message containing filthy contents from an unknown number on 05.04.2013 they approached the police station. It was complained by the complainant in her complaint that the said message was sent on 5.4.2013 at around 5.46pm by accused persons jointly. By the deposition of Nodal Officer of Bharti Airtel Limited/ PW2 it is proved before the Court that mobile number 9818412037 was issued in the name of accused Manish, mobile number 9818806424 was issued in the name of one Sunil Kumar and mobile number 9971871023 was issued in the name of mother of 'X'.
It is further proved by way of call detail records of these mobile phone numbers that on 5.4.2013 at around 5.39pm a message was received on the phone of mother of 'X' from phone number of one Sunil Kumar. However, from the deposition of all the prosecution witnesses as well as after perusal of the entire charge sheet it is categorically clear that no investigation was done with respect to the said Sunil Kumar. No link has been establised between the accused persons and the said Sunil Kumar and it is not established that the phone number issued in the name of Sunil Kumar was in the possession of either of the accused persons. Thus the prosecution has failed to prove any link between mobile
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 22/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) phone number 9818806424 issued in the name of said Sunil Kumar and the accused persons. The IO further had admitted in her cross examination that she had not taken out the print out of the said SMS. The complainant had further deposed that the SMS which was received by her was sent through an internet site and was not open in her mobile phone. The State had sent the said mobile phone for the purpose of FSL examination, however, a CD was filed by FSL containing the data of mobile phone which was not exhibited by the State in evidence and only the mobile phone was exhibited. Further it is deposed by the complainant that three messages were received by her from the accused persons, however only one message was opened whereas it is deposed by her father that his daughter had received only one message and he had read the said message.
31. Thus, firstly the contents of the message are not before the Court, secondly it was admitted by 'X' that the said message was not open on her phone, thirdly the said message was sent as per the own admission of 'X' through an unknown number and fourthly no link is established between that unknown number and the accused persons.
32. Perusal of the deposition of 'X' further reveals that she had deposed that accused persons used to abuse her in filthy language while standing in a group of 45 persons. She had not specified the words which were used by the accused persons. Her complaint Ex. PW1/A is also silent with respect to the words used by the accused persons. Section 509 IPC makes punishable the uttering of words with the intention to insult the modesty. 'X' only in her statement U/s 164 Cr.P.C. had deposed regarding the words used by the accused persons. However, her examination in chief is scorchingly silent with respect to those words and therefore, she was never subjected to cross examination with respect to the same.
33. Thus, in view of the above said discussions and findings, the ingredients of Section 509 IPC are not established in the present case beyond shadow of all reasonable doubts.
34. Further more in the present case it is deposed by 'X' that the accused persons used to stalk her and hit her on the
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 23/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) way from Metro Station to her institute. She had not deposed as to on which portion of her body she was hit by the accused persons and whether they both jointly hit her or separately hit her. She had deposed that she told about the accused persons to her father on 5.4.2013, however, her father had deposed that his daughter told him regarding the conduct of the accused persons on 1.4.2013, 3.4.2013 and 4.4.2013 and he had admitted that his daughter was not hit by the accused persons, though had made a voluntary statement that the accused persons tried to hit his daughter. Reading both the depositions together, firstly the manner of assault or use of criminal force is not categorically specified and secondly contrary deposition have come with respect to the assault and criminal force itself. Thirdly, it is not specified as to on which portion of the body of 'X' the said assault was made or criminal force was used.
35. Thus in view of the above said discussions and findings, ingredients of the offence punishable U/s 354 IPC are not established against the accused persons beyond shadow of all reasonable doubts.
36. 'X' however, had deposed that the accused persons on 3.4.2013 came in front of her and accused Manish said to her that he liked her. They used to call her over phone and Manish used to threaten her. On 4.4.2013 they both threatened to kill and rape her. They both used to stalk her from metro station to the institute and stalked her near metro station and asked her to do what they say and Manish threatened her by saying that his father is in police and he would see her. Perusal of the call details of mobile phone number of accused Manish from 1.4.2013 to 6.4.2013 Ex. PW2/B show that call was made from the phone of accused to phone of mother of 'X' on 2.4.2013 at 1.14pm having 55 duration. Thereafter, again on 5.4.2013 a zero duration call was made at 9.34pm from the phone of accused Manish Dhama to the phone of mother of 'X'. It is deposed by 'X' that she used the phone of her mother . Thus the call details also show that in between the period from 1.4.2013 to 5.4.2013 twice call was made from the phone of accused Manish Dhama to the phone of 'X'. 'X' had categorically deposed that the accused persons repeatedly followed her and contacted her and attempted to contact her repeatedly to foster personal interaction. There is no call made from the phone of
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 24/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) complainant to the phone of accused. It is not the defence that there was any kind of relationship between the parties. The testimony of 'X' is coherent and consistent on the said aspect and is unimpeachable. In view of the same the prosecution has been able to prove that the accused persons followed the complainant/prosecutrix repeatedly despite clear indication of disinterest by her and contacted her and attempted to contact her repeatedly to foster personal interaction and the said act was done by both of them in furtherance of their commmon intention. Thus, the prosecution has been able to prove beyond the shadow of all reasonable doubts that the accused persons stalked 'X' and had committed the offence punishable U/s 354 D IPC.
37. 'X' had further categorically deposed regarding the threats extended by the accused persons to her. She had categorically deposed that they threatened her. Accused Manish said to her that he can cross any limit to get her and Saurabh would help him. On 4.4.2013 they both threatened to kill and rape her. Accused Manish told her that his father is in police and he would see her. In view of the consistent deposition of 'X' regarding the same and as nothing has come in her cross examination which can impeach her credibility with respect to the commission of the said offence, it is established by the prosecution before the Court that the accused persons criminally intimidated 'X' to cause death and to cause an offence punishable with imprisonment for a term which may extend to seven years and therefore, had committed the offence punishable U/s 506 (ii) IPC.
Conclusion and findings:
38. Keeping in view the abovesaid discussion and findings, both accused persons namely Manish Dhama and Soudatt Sharma are acquitted for the offence punishable U/s 354 read with Section 34 IPC and Section 509 read with section 34 IPC and are convicted for the offence punishable U/s 354 D read with Section 34 IPC and Section 506 (ii) IPC read with section 34 IPC............."
(30) It is evident that the Ld. Trial Court has rightly acquitted both the appellants/ accused for insufficiency of evidence in so far as the provisions of Section 354 & 509 Indian Penal Code are concerned.
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 25/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) However, in so far as the provisions of Section 354D and 506 (ii) Indian Penal code are concerned, the prosecutrix 'X' cannot be disbelieved. As discussed herein above, both the appellants were the classmates of the prosecutrix studying with her in the same institute. The prosecutrix 'X' had no reason to falsely implicate them. She comes from an educated and reputed family, her father being a Journalist by profession and hence the defence so offered by the appellant Manish Dhama of the prosecutrix 'X' having borrowed a meager amount of Rs.5,000/ and having implicated him when he asked for its return, falls flat. There is also no reason why she would specifically pick on appellant Soudatt Sharma out of all the other persons in the class and why she would risk her own reputation as well as that of her family by making false complaints. Further, it is also orally argued that the Investigating Officer has failed to collect the CDR's of the prior period which would have revealed the calls by prosecutrix. In this regard, I note that this was never the defence raised by the appellant/ accused at any point of time. Assuming that there were calls made by the prosecutrix as claimed by the appellant / accused then, the prosecutrix 'X' having said a NO to the advances of the appellants, there was no reason for the appellants / accused to have followed her and continue with their pursuit to her annoyance.
(31) Hence in view of the aforesaid, I hereby uphold the conviction of both the appellants / accused persons namely Soudatt Sharma and Manish Dhama under Section 354D and Section 509 read with Section 34 IPC. (32) Coming now to the aspect of quantum of sentence. While the Ld. Counsels for the appellants / accused persons have prayed that the appellants be released on Probation being young boys and first time
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 26/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) offenders, the same has been opposed by the Addl. PP for the State on the ground that the offence has been committed against a young girl who had been going to pursue further studies in the public places which shows that the appellants / accused have no fear of law and hence they are not entitled to any leniency.
(33) In so far as the sentence imposed by the Ld. Trial Court upon the appellants / accused persons is concerned, the maximum punishment provided for the offence under Section 354D IPC is imprisonment for three years and also fine, for first offence, and for subsequent offence imprisonment of five years and also fine and for the offence under Section 509 the imprisonment of one year or fine or both. The offence is relating to the year 2013 and both the appellants / accused persons having suffered ordeal of trial for the last almost four years, the Ld. Trial Court has already very lenient while handing over the sentence to the appellants / accused for six months and fine for sum of Rs.10,000/ each (fine to be given as compensation to the prosecutrix 'X') for the offence under Section 354 D IPC read with Section 34 IPC and imprisonment for six months for the offence under Section 506 read with Section 34 IPC along with fine for sum of Rs.5,000/ each (fine to be given as compensation to the prosecutrix 'X'), with both sentences running concurrently. In the matter of sentencing, it is the duty of the court to ensure that sentencing policy should not only fulfill the aim or reformation and rehabilitation but also be deterrent so as to deter not only the convicts but others from committing such an offence and hence, in the light of this background I find no reason to intervene.
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 27/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State) (34) In view of the above discussions, both the Criminal Appeals i.e. Criminal Appeal No. 13/2017 titled as "Manish Dhama Vs. State" and Criminal Appeal No. 15/2017 titled as "Soudatt Sharma Vs. State " are hereby dismissed. The trial court record be sent back along with copy of this order. Digitally signed by KAMINI (35) Appeal files be consigned to Record Room. KAMINI LAU LAU Date:
2018.03.12 17:28:57 +0530 Announced in the open Court (Dr. KAMINI LAU) Dated: 12.03.2018 Spl. Judge (P.C. Act) CBI01 (Central), Tis Hazari Courts, Delhi
1) Cril. Appeal No. 13/2017 (Manish Dhama Vs. State) (Page No. 28/28)
2) Cril Appeal No. 15/2017 (Soudatt Sharma Vs. State)