Delhi District Court
Manoj Kumar vs State And Ors on 29 April, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-011357-2019
CRIMINAL APPEAL No.: 340/2019
1. GOVINDA,
S/o. Shri Munshi Ram,
R/o. House No. 10539, Manak Pura,
Hari Chand Chowk, Karol Bagh,
New Delhi.
2. PAWAN @ JUDI,
S/o. Shri Munshi Ram,
R/o. House No. 10539, Manak Pura,
Hari Chand Chowk, Karol Bagh,
New Delhi. ... APPELLANTS
VERSUS
1. STATE (GOVT. OF NCT OF DELHI)
2. SHRI. 'MK1',
S/o. Late Sh. 'SL',
R/o. 'ABC'. ... RESPONDENTS
Date of Institution : 23.08.2019
Date when judgment was reserved : 03.03.2025
Date when judgment is pronounced : 29.04.2025
AND,
CNR No.: DLCT01-011891-2019
CRIMINAL APPEAL No.: 347/2019
SHRI. 'MK2',
S/o. Late Shri. 'SL'
R/o. 'ABC'. ... APPELLANT
VERSUS
1. STATE (GOVT. OF NCT OF DELHI)
2. GOVINDA,
S/o. Shri. Munshi Ram,
1 Identities of the complainant, victim/prosecutrix as well as that of her other family members, who appeared
before the Ld. Trial Court as PWs have deliberately been 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.
2 Ibid. 1.
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Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.04.29
15:39:06
+0530
R/o. House No. 10539, Manak Pura,
Hari Chand Chowk, Karol Bagh,
New Delhi.
3. PAWAN @ JUDI,
S/o. Shri. Munshi Ram,
R/o. House No. 10539, Manak Pura,
Hari Chand Chowk, Karol Bagh,
New Delhi.
4. SUNNY,
S/o. Shri. Munshi Ram,
R/o. House No. 10539, Manak Pura,
Hari Chand Chowk, Karol Bagh,
New Delhi. ... RESPONDENTS
Date of Institution : 03.09.2019
Date when judgment was reserved : 03.03.2025
Date when judgment is pronounced : 29.04.2025
JUDGMENT
1. The present common judgment shall determine the aforenoted criminal appeals, bearing; Crl. Appeal No. 340/2019 and Crl. Appeal No. 347/2019. At the outset, it is noted that the criminal appeal bearing; Crl. Appeal No. 340/2019 has been preferred by the accused persons, namely, Govinda and Pawan @ Judi (hereinafter collectively referred to as the 'accused persons') under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter, referred to as 'Cr.P.C.') against the judgment dated 06.03.2019 (hereinafter referred to as 'impugned judgment'), passed by learned Metropolitan Magistrate (Mahila Court)-01/Ld. MM (Mahila Court)-01, Central, Tis Hazari Courts, Delhi (hereinafter referred to as the 'Ld. Trial Court/Ld. MM') in case bearing, "State v. Govinda @ Rajinder & Ors., Crl. Case No. 302651/2016", arising out of FIR No. 87/2011, PS. DBG Road, under Sections 341/354/506/34 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), convicting the accused persons CA No. 340/2019 Govinda & Anr. v. State & Anr.
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for the offences punishable under Sections 354/341/506 IPC read with Section 34 IPC and the consequent order of sentence dated 30.07.20191 (hereinafter referred to as 'impugned order'), passed by the Ld. Trial Court. Needless to mention that co-accused, namely, Sanni @ Hari Shankar was acquitted of the charge(s)/charge under Section 506 IPC, under the impugned judgment. Further, relevantly, under the impugned order, the accused persons were awarded, simple imprisonment for a period of 01 (one) year along with fine of Rs. 6,000/- (Rupees Six Thousand only) each, of which Rs. 5,000/- (Rupees Five Thousand only) each, was directed to be paid to the complainant, namely, 'MK', as compensation, for the offence under Section 354/34 IPC; simple imprisonment for a period of 01 (one) month along with fine of Rs. 500/- (Rupees Five Hundred only) each, for the offence under Section 341/34 IPC; and simple imprisonment for a period of 01 (one) year for the offence under Section 506 (Part II)/34 IPC. Further, in default of payment of fine amount, accused persons were directed to further undergo, simple imprisonment for a period of 05 (five) days (hereinafter impugned judgment and impugned order are collectively referred to as the 'impugned judgment and order'). Apposite to further note that under the impugned order, Ld. Trial Court, while noting that the accused persons had already undergone custody period of 03 (three) months and 20 (twenty) days, permitted them with the benefit under Section 428 Cr.P.C. However, vide subsequent order dated 13.08.2019, which is also impugned herein by the accused persons, Ld. Trial Court, noted as under;
1 Order on sentence dated 30.07.2019 and subsequent order dated 13.08.2019 was passed by Ld. Metropolitan Magistrate (Mahila Court)-04/Ld. MM (Mahila Court)-04, Central, Tis Hazari Court, Delhi, pursuant to transfer of case vide order no. 12/DHC/G92/G7/VI.E2(2)/2019 dated 26.03.2019. However, for the sake of lucidity in the instant judgment, Ld. MM-01 (Mahila Court) and Ld. MM-04 (Mahila Court) are referred to as the Ld. Trial Court/Ld. MM.
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"...It is stated in the application that in the order of sentence, it was mentioned that the convicts have remained in custody for a period of 3 months and 20 days, however, none of the convicts have ever remained in custody in the present matter. Thus, it is stated that convicts are not entitled to benefit of section 428 Cr.P.C.
Submissions heard. Record perused.
In the present matter, perusal of the record reveals that above said submissions of the convicts are correct and the mention of custody period of 3 months and 20 days in the order on sentence appears to be an inadvertent mistake, which is not on the merits of the case and which is apparent on the face of the record. Accordingly, the application of the convicts seeking modification of the said order is allowed. The said order stands modified only to the extent that the convicts have never remained in custody in the present matter and thus, they are not entitled to the benefit of section 428 Cr.P.C.
The present order shall form part of order on sentence dated 30.07.2019..."
(Emphasis supplied)
2. Markedly, the cross appeal, i.e., criminal appeal bearing; Crl. Appeal No. 347/2019, has been preferred by the complainant, namely, 'MK' (hereinafter referred to as the 'complainant') against the accused persons as well as co-accused, namely, Sanni (hereinafter referred to as the 'co-accused'), in terms of the provisions under Section 372 Cr.P.C. against the impugned judgment and order inter alia seeking enhancement of sentence awarded to the accused persons as well as of augmentation of the compensation awarded to the complainant from a sum of Rs. 10,000/- (Rupees Ten Thousand only) to Rs. 1,00,000/- (Rupees One Lakh only). Here, it is apposite to reproduce the prayer clause of the instant appeal as under;
"...It is therefore, most respectfully prayed that the Hon'ble Court may graciously be pleased to;
(a) Accept the appeal in favour of the appellant and against the respondents;
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(b) Set aside the impugned Judgment dated 06.03.2019 & order on sentence dated 30.07.2019 (Certified Copy of the same was received only on 08.08.2019 passed by Ms. Shama Gupta, Ld. MM (Mahila Courts)-04 Central District Tis Hazari Courts, Delhi in Criminal Case No. 302651/2016 in case FIR No.87/2011 under section 341/354/506/34 IPC PS Desh Bandhu Gupta Road, in case title as State vs. Govinda and Ors., wherein the Ld. Trial Court was pleased to award lesser sentence of imprisonment upon the convicts;
(c) It is prayed that this Hon'ble Court may kindly be pleased to enhance the sentence awarded as per section 354/506 II of the Indian Penal Code to the respondent no.2 to 4 and to send strong message to the society that the wrongdoer cannot escape from the ends of justice and to enhance the compensation amount from Rs.10,000/- to Rs.1,00,000/-in favour of the appellant;
(d) Call for the record of the Complaint case no. FIR No.87/2011 PS Desh Bandhu Gupta Road Delhi decided by the Learned Trial Court of MS. Shama Gupta, Ld. MM (Mahila Courts)-04 Central District Tis Hazari Courts, Delhi;
(e) Any other order which this Hon'ble Court may deems fit and proper may also be granted in favour of the appellants..."
(Emphasis supplied)
3. Succinctly, the facts leading up to the filing of the aforesaid appeals are that the complainant approached Ld. MM-01, Central, Tis Hazari Courts by moving an application Section 156(3) Cr.P.C., whereby the Ld. Court vide order dated 28.04.20111, directed registration of the FIR (instant FIR). Notably, in his complaint, the complainant inter alia asserted that at the relevant point in time, his daughter/victim, namely 'N2' was 1 Reference is made to the relevant extracts of the said order dated 28.04.2011 in CC No. 12/1, bearing; 'MK v. Govinda etc.', recording, "...Allegations are shocking and pertains to cognizable offence. Probable evidence would be of such nature which required indulgence of investigating agency. Matter needs to be thoroughly probed *** In these circumstances, I hereby direct SHO, Karol Bagh to register an FIR on the basis of allegations of the complainant and investigate the matter thoroughly. However, it is made clear that the police shall not be influenced by the sections of law mentioned by the complainant in the complaint nor by names of the accused as shown by the complainant. Complainant is directed to supply the copy of the complaint to the concerned Naib Court for onward transmission to the PS concerned..." (Emphasis supplied) 2 Identity of the victim/prosecutrix is 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 CA No. 340/2019 Govinda & Anr. v. State & Anr.
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around 16 years of age and studying in 11th Standard in a government School. As per the complainant, the accused persons and co-accused were real brothers, persons of bad character as well as anti-social elements of the locality. Correspondingly, as per the complainant, accused, Govinda had evil intentions/ill eyes on the victim 'N', even prior to 17.03.2010 and the accused persons as well as the co-accused has made his/complainant's daughter's life miserable and wrongfully confined her. The complainant further proclaimed that even in the year 2009, accused persons had pressurized 'N' to make illicit relationship as well as asked her for her mobile phone, when she was studying in 10th Standard. Congruently, as per the complainant, the accused persons used to follow the victim/'N', while she was on her way to her School and that the victim had informed him/the complainant of the misdeeds of the accused persons. The complainant further declared that he made a complaint to the accused persons' father, however, co- accused Sanni, not only threatened him, rather, also declared that he/Sanni would finish the complainant's family. Undeterred, as per the complainant, the accused persons again detained the victim/'N', while she was on her way on 13.03.2010 as well as forcibly gave his mobile number and threatened her to talk with him on the phone, else dire consequences would follow. There are also allegations that the appellants and co-accused threatened to throw acid on victim's/'N's' face. As per the complainant, when the said fact was informed to him by the victim, a complaint was tendered by the complainant to police post Siddhipura on 17.03.2010, however, the accused persons are asserted to have been let off after mere warning. It was further asserted by the complainant that the accused persons continued with their nefarious acts and persevered to subject the victim to various CA No. 340/2019 Govinda & Anr. v. State & Anr.
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atrocities, despite warning from the complainant. Concomitantly, the complainant avowed that on 14.07.2010, accused Govinda again teased and harassed the victim 'N', compelling the complainant to approach accused persons' father to seek redressal of his concerned, however, the accused persons' family members insulted and threatened him as well as his family members. The complainant further asserted that a call was made at 100 number and when PCR gypsy is proclaimed to have reached at the spot, the accused persons fled from spot till 16.07.2010, when the accused persons finally appeared on 16.07.2010, a compromise is stated to have been recorded with the intervention of the respectable members of the society. Markedly, under the said compromise, as per the complainant, accused persons' father assured that the accused persons and the co-accused would not subject the victim to harassment. However, despite the same, the accused persons and co-accused are proclaimed to have not improved their ways, rather, they are asserted to have again obstructed the victim's way, threatened to throw acid on her face as well as terrorized to kill her by burning her with acid. Again, as per the complainant, he made a complaint to accused persons' father, however, to no avail. Consequently, a complaint was lodged by the complainant on 05.08.2010 before the concerned DCP for taking immediate action. However, when no action was taken by the concerned police officials, the complainant approached the court by inter alia moving an application/complaint under Sections 156(3)/200 Cr.P.C., whereupon, as aforementioned, directions for registration of FIR were issued by Ld. MM-01, Central, Tis Hazari Court. Consequently, upon registration of FIR, investigation ensued by the concerned police officials. Relevantly, during the investigation process, accused persons and co-accused Sanni were apprehended, CA No. 340/2019 Govinda & Anr. v. State & Anr.
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.04.29
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however, subsequently, released on bail. Correspondingly, statements of various witnesses were recorded and upon conclusion of investigation, chargesheet was prepared and filed before the Ld. Trial Court.
3.1. Notably, consequent upon Ld. Trial Court's taking cognizance of the offences under Sections 341/354/506 IPC on 24.08.2011, compliance of provisions under Section 207 Cr.P.C. was undertaken. Thereafter, upon arguments on charge having been addressed by/on behalf of Ld. Counsel or the accused persons as well as by Ld. APP for the State, Ld. Trial Court vide its order dated 30.04.2012, directed framing of charges against the appellants1 for the offences under Sections 341/354/506/34 IPC. Consequently, the following charges were framed against the appellants on 30.04.2014;
"...I, ***, MM. Delhi hereby charge you (1) Govinda @ Rajinder (2) Pawan @ Judi Both S/o. Sh. Munsi Ram, as under:-
That you accused Govinda in the year 2009 along with accused Pawan confined the daughter of the complainant and pressurized her to make illicit relationship and asked her mobile number who was studying in Xth class at that time. Further, both of you accused persons used to follow her on her way to the school. On 13.03.10, both of you detained the daughter of the complainant on her way and forcibly gave your mobile number to her and threatened her that if she would not talk to you, you would throw acid on her face.
Again on 14.07.10, you accused Govinda teased and harassed 'N'. Further, despite the compromise before the panchayat, you both accused persons continued with your illegal activities towards 'N' and restrained her on one occasion and further threatened 1 Pertinently, by virtue of the same order, charges under Section 506 IPC were directed to be framed against co-accused, Sanni @ Hari Shanker. However, as aforenoted, the said accused was eventually acquitted by the Ld. Trial Court. Apposite to reproduce, charges framed against accused, Sanni, as; "...I, ***, MM, Delhi hereby charge you (1) Sanni@ Hari Shanker Sh. Munshi Ram as under;-*** That you accused Sunny threatened the complainant that you along with other accused persons would finish her entire family and further threatened the victim 'N' that if they would complaint to the police, you would make her life miserable and criminally intimidated her and thereby committed the offence u/s 506/34 IPC and with my cognizance.*** And I hereby direct you to be tried for the aforesaid offence by this court..." (Emphasis supplied).
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her that you would throw acid on her face and kill her by burning with acid, if she made any complaint to their father or to the police and thereby both of you have committed the offence u/s 341/354/506/34 IPC and within my cognizance.
And I hereby direct both of you to be tried for the aforesaid offence by this court..."
(Emphasis supplied) 3.2. Markedly, the appellants pleaded not guilty to the aforesaid charges and claimed trial. Relevantly, during the course of trial, prosecution examined 12 (twelve) witnesses, i.e., PW-1/SI Rajender Singh; PW-2/Ct. Devender Kumar; PW-3/SI Mahender Singh; PW-4/Sh. Ashok Kumar; PW-5/complainant/Sh. 'MK'; PW-6/victim/'N'; PW-7/SI Sumer Chand; PW-8/Sh. Pyare Lal; PW-9/Smt. 'R' (mother of the victim, 'N'); PW-10/Shri. Gopal; PW-11/Sh. Bhagwan Dass; and PW-12/W/SI Pushpa. Subsequently, on conclusion of prosecution evidence, recording of statement of the appellants (and co-accused) under Section 281/313 Cr.P.C. on 11.07.2017, as well as on the appellants' leading defence evidence/Defence witnesses, i.e., DW-1/Shri. Hari Kishan; DW-2/Shri. Rajiv Ranjan; DW-3/Ms. Archana Shakya; DW-4/Shri. Dinesh Kumar; DW-5/Sh. Deepak Seth; and DW-6/Sh. Pooran Chand; as well as on conclusion of arguments on behalf of the parties, as aforementioned, the Ld. Trial Court vide impugned judgment and order, while holding the appellants guilty of the offences punishable under Sections 341/354/506 IPC read with Section 34 IPC, sentenced them in the manner, as noted hereinabove.
4. Learned Counsel for the accused persons vehemently contended that the impugned judgment and order were passed by the Ld. Trial Court on mere conjunctures, surmises and in contravention of the settled principles of law, deserving their CA No. 340/2019 Govinda & Anr. v. State & Anr.
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setting aside at the outset. As per the Ld. Counsel, the impugned judgment is incorrect both on facts as well as in law, making the same liable to be set aside at the outset. It was further submitted that the Ld. Trial Court erred in not appreciating the facts and circumstances of the present case, nor the submissions of the accused persons, while passing the impugned judgment and order. In this regard, Ld. Counsel outrightly submitted that the Ld. Trial Court failed to appreciate that in the instant case, there are numerous gaping holes in the case put forth by the complainant, besides the story put forth on the prosecution's end, does not inspire confidence or appeals to the senses of a prudent man. Ld. Counsel further submitted that the impugned judgment and order was passed by the Ld. Trial Court against the evidence of PW-5 and PW-6, recorded before the Ld. Trial Court in variance to their statements made before the police. In this regard, Ld. Counsel asserted that there are material variations, contradictions and improvements in the testimonies of said witnesses, making them unreliable and unworthy of credit. Ld. Counsel further submitted that the Ld. Trial Court failed to consider that all the documents, sought to be relied by the complainant and victims are photocopies. Ergo, as per the Ld. Counsel, in the absence of original documents being placed on record, reliance on said documents could not have been placed by the Ld. Trial Court. Further, as per the Ld. Counsel. PW-8, PW-9, PW-10 and PW-11 are turned hostile, and their assertion could not have formed the basis for conviction of the accused persons. Correspondingly, Ld. Counsel fervently argued that the Ld. Trial Court failed to appreciate that there are clear contradictions in the evidence of PW-5, PW-6, PW-7 and PW-12, belying the depositions of said witnesses.
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4.1. Ld. Counsel for the accused persons further submitted that the finding of the Ld. Trial Court is not based on any cogent material and the Ld. Trial Court, as per the Ld. Counsel, passed the impugned judgment and order, mechanically. Further, as per the Ld. Counsel the Ld. Trial Court erred in appreciation of evidence led in the case, ignoring the fundamental shortcoming in the assertion of prosecution witnesses, besides, as per the Ld. Counsel, the Ld. Trial Court failed to appreciate that the dispute between the parties was essential civil in nature. Even otherwise, as per the Ld. Counsel for the accused persons, the accused persons have been falsely implicated in the present case as the uncle/chacha of the accused persons was in possession of the property belonging to the bhabhi of the complainant and solely to have the premise vacated, the instant proceedings were initiated against the accused persons. It was further submitted by the Ld. Counsel that the complainant never disclosed the alleged mobile number, which the accused is asserted to have provided to the victim, 'N'. It was further submitted by the Ld. Counsel that the Ld. Trial Court erroneously placed reliance on the testimony of complainant and victim's mother, who are none other than hearsay witnesses.
4.2. Ld. Counsel for the accused persons further submitted that the Ld. Trial Court reached its conclusion of guilt of the accused persons, while failing to appreciate that there is no cogent, credible and reliable evidence on record for reaching an unambiguous conclusion towards the guilt of the accused persons. Accordingly, Ld. Counsel submitted that not only did the Ld. Trial Court fail to consider the truth of circumstances and passed its judgment/decision in haste, rather, did not properly appreciate/examine the facts of the present case, wrongly holding CA No. 340/2019 Govinda & Anr. v. State & Anr.
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the accused persons guilty of the aforementioned offences. Even otherwise, it was submitted by the Ld. Counsel that the order of sentence was also passed by the Ld. Trial Court, whimsically, while failing to appreciate that the accused persons were of young age at the relevant point in time, as well as responsible for the look after and take care of their family members, besides there are no other cases pending against them and that they have clean antecedents. Ld. Counsel further vehemently argued that the punishment/penalty must not be retributive in nature, rather, humanizing, considering that sentencing the accused persons with severe sentence would subject the accused persons' family members to grave depravity. Further, as per the Ld. Counsel, substantial time has lapsed since the incident in question and in case relaxation/leniency is not afforded to the accused persons, serious/severe repercussions may ensue to his physical and mental well-being. Consequently, the Ld. Counsel for the accused persons inter alia prayed that the present appeal be allowed, and the impugned judgment and order be set aside. In the alternate, Ld. Counsel submitted that the accused persons be permitted/granted the benefit/relaxation in terms of the provisions under the Probation of Offenders Act, 1958 (hereinafter referred to as the 'Probation of Offenders Act'). In support of the said contentions, reliance was placed upon the decision(s) in; Jagir Singh v. State (Delhi), AIR 1975 SC 1400; Raghunandan v. State of U.P., (1974) 4 SCC 186; and Daleveer & Anr. v. State, AIR Online 2019 ALL 2775.
5. Per contra Ld. Addl. PP for the State submitted that the impugned judgment and order were passed by the Ld. Trial Court after due appreciation of the facts and circumstances of the case as well as in consonance with the settled judicial precedents. CA No. 340/2019 Govinda & Anr. v. State & Anr.
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Ld. Addl. PP for the State further submitted that the testimonies of the complainant and victim have not only been consistent, rather, of sterling quality, lucidly point out towards the only inference of guilt of the accused persons. Further, as per the Ld. Addl. PP for the State the accused persons have even failed to prove their defence and the witnesses produced by the accused persons, are even otherwise not reliable. Concomitantly, it was submitted by the Ld. Addl. PP for the State that no ground of any indulgence or relaxation even in the sentence granted to the accused persons is made out by them, besides considering the gravity of offence involved, the accused persons are not entitled to the benefit of the provisions under the Probation of Offenders Act. Accordingly, Ld. Addl. PP for the State submitted that the present appeal deserves to be dismissed at the outset, as grossly malicious and devoid of merits.
5.1. Learned Counsel for the complainant, while supplementing the arguments of Ld. Addl. PP for the State vehemently contended that the testimonies of the complainant as well as the victim, directly and unambiguously point towards the inference of guilt of the accused persons. As per the Ld. Counsel, the said witnesses have been consistent in their deposition before the Court, besides unambiguously point towards the only inference of guilt of the accused persons. Even otherwise, as per the Ld. Counsel the testimonies of the complainant and victim's mother are relevant under Section 6 of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act'), as res gestae, i.e., part of the same transaction. However, Ld. Counsel submitted that while passing the order of sentence, Ld. Trial Court erred in passing lesser sentence of imprisonment upon the accused persons, whilst ignoring the settled provision of law, misreading the facts of CA No. 340/2019 Govinda & Anr. v. State & Anr.
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the instant case, as well as passed the impugned order of sentence on surmises and conjunctures. As per the Ld. Counsel, even the sentence awarded for the offence under Section 506 IPC was also grossly inadequate and does not commensurate with the offence with which the accused persons were found guilty by the Ld. Trial Court. Correspondingly, as per the Ld. Counsel, the amount of compensation awarded by the Ld. Trial Court is also utterly insufficient and does not correspond with the repeated declarations of superior courts, for the persecution, torture and harassment, which the complainant and the victim had to undergo. Ergo, as per the Ld. Counsel, considering the derisory nature of the fine/compensation and sentence awarded to the accused persons, the impugned order on sentence deserves to be revisited and adequate, proper and sufficient fine as well as sentence be awarded against the accused persons. Accordingly, it was entreated that the impugned order on sentence be modified/set aside and appropriate sentence be awarded against the accused persons, besides the victim/complainant be suitably compensated.
6. The arguments of Ld. Counsel for the accused persons, Ld. Counsel for the complainant as well as that of Ld. Addl. PP for the State have been heard and the record(s), including the Trial Court Record and the written submissions, filed on behalf of the parties as well as the case laws relied, thoroughly perused.
7. At the outset, this Court deems it apposite to enunciate the scope of jurisdiction of this Court in an appeal against conviction. In this regard, this Court deems it pertinent to outrightly make a reference to the decision of the Hon'ble Supreme Court1 in Atley v. State of U.P., 1955 SCC OnLine SC 51, wherein the Hon'ble Court, while delving into the 'scope an ambit' 1 Reference further made to; Padam Singh v. State of U.P., (2000) 1 SCC 621. CA No. 340/2019 Govinda & Anr. v. State & Anr.
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of appellate court's jurisdiction, against an appeal against acquittal or an appeal against conviction, inter alia noted as under;
"8. ... It is also well settled that the Court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State [1951 SCC 1207: AIR 1952 SC 52]; Wilayat Khan v. The State of Uttar Pradesh [1951 SCC 898: AIR 1953 SC 122]. In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions...."
(Emphasis supplied)
8. Correspondingly, the Hon'ble Apex Court in Narendra Bhat v. State of Karnataka, (2009) 17 SCC 785, iterated in respect of the foregoing as under;
"3. This Court has in a series of judgments held that a court exercising appellate power must not only consider questions of law but also questions of fact and in doing so it must subject the evidence to a critical scrutiny. The judgment of the High Court must show that the Court really applied its mind to the facts of the case as particularly when the offence alleged is of a serious nature and may attract a heavy punishment."
(Emphasis supplied)
9. Quite evidently, from a conjoint reading of the aforenoted judicial dictates it can be perspicuously deduced that the jurisdiction of this Court in an appeal against conviction extends to reappreciation of the entire material placed on record of the trial court and to arrive at an independent conclusion as to whether the said evidence can be relied upon or not. In fact, as CA No. 340/2019 Govinda & Anr. v. State & Anr.
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aforenoted, court(s), while exercising its appellate jurisdiction, is not only required to consider the question of law, rather, also question of facts to affirmatively reach a conclusion of guilt or innocence of an accused. In fact, it is trite law 1 that non-re- appreciation of the evidence on record in an appeal may affect the case of either the prosecution or even an accused. Needless to reemphasize that an appellate court is to be further wary of fact that presumption of innocence of an accused, even extents until an accused is held guilty by the final court of appeal and that such a presumption is neither strengthened by acquittal nor weakened by a conviction in the trial court.
10. Therefore, being cognizant of the aforesaid principles, however, before proceeding with the determination of the rival contentions of the parties, this Court deems it pertinent here to reproduce the relevant provisions under law/IPC, for the purpose of present adjudication, as under;
"34. Acts done by several persons in furtherance of common intention-When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
*** *** ***
39. "Voluntarily"-A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.
*** *** ***
339. Wrongful restraint-Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
Exception-The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.
1 State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735. CA No. 340/2019 Govinda & Anr. v. State & Anr.
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341. Punishment for wrongful restraint-Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred 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.
*** *** ***
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.
*** *** ***
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."
(Emphasis supplied)
11. Notably, from a perusal of the aforesaid, it is outrightly observed that the provisions under Section 34 IPC recognize the principle of vicarious liability1 in criminal jurisprudence, attracting culpability against a person for an 1 Suresh v. State of U.P., (2001) 3 SCC 673.
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act/offence, not committed by him but by another person with whom he shared the common intention. It is trite law1 that Section 34 IPC does not provide for a substantive offence, rather, envisages culpability on the part of an accused only upon the proof of two conditions, i.e., "the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime." Quite evidently2, mere common intention on the part of any such accused, per se may not attract the provisions under Section 34 IPC, sans an action in furtherance thereof. Strikingly, the Hon'ble Supreme Court in Ram Naresh v. State of U.P., (2024) 1 SCC 443, while explicating the contours of the provisions under Section 34 IPC inter alia remarked as under;
"7. A reading of Section 34 IPC reveals that when a criminal act is done by several persons with a common intention each of the person is liable for that act as it has been done by him alone. Therefore, where participation of the accused in a crime is proved and the common intention is also established, Section 34IPC would come into play. To attract Section 34IPC, it is not necessary that there must be a prior conspiracy or premeditated mind. The common intention can be formed even in the course of the incident i.e. during the occurrence of the crime.
*** *** ***
11. Assistance has been taken of para 26 of the decision of this Court in Krishnamurthy v. State of Karnataka [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri) 192], which is reproduced herein below: (SCC p. 537) "26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 1 Virendra Singh v. State of M.P., (2010) 8 SCC 407. 2 Jasdeep Singh v. State of Punjab, (2022) 2 SCC 545.
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to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34IPC are satisfied. We must remember that Section 34IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants."
12. A plain reading of the above paragraph of Krishnamurthy case [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521: (2022) 3 SCC (Cri) 192] reveals that for applying Section 34IPC there should be a common intention of all the co-accused persons which means community of purpose and common design. Common intention does not mean that the co-accused persons should have engaged in any discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. Common intention is a psychological fact and it can be formed a minute before the actual happening of the incidence or as stated earlier even during the occurrence of the incidence."
(Emphasis supplied)
12. Markedly, from the above, it is noted that in the CA No. 340/2019 Govinda & Anr. v. State & Anr.
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instances where the provisions under Section 34 IPC are proposed to be invoked by the prosecution against accused persons, it is not mandatory to demonstrate that such persons engaged in any prior discussion or agreement so as to prepare a plan or hatch a conspiracy for committing the offence. On the contrary, common intention may be formed at a spur of moment, even during the commission/occurrence of incident, which is to be discernible from the facts of circumstances of each case. Correspondingly, it is also a settled law that for proving formation of common intention by accused persons, direct evidence may seldomly be available, yet, in order to attract the provisions under Section 34 IPC, prosecution is under a bounden duty to prove that the participants had shared a common intention1. Reference, in regard the foregoing is further made to the decision in Virendra Singh v. State of M.P., (2010) 8 SCC 407, wherein the Hon'ble Supreme Court, elucidated as under;
"38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.
39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed . In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common 1 Hon'ble High Court of Kerala in Khalid B.A. v. State of Kerala, 2021 SCC OnLine Ker 11875, in this regard, remarked; "72. It is settled law that the common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances." (Emphasis supplied) CA No. 340/2019 Govinda & Anr. v. State & Anr.
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intention under Section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinised by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent.
40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.
*** *** ***
42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34."
(Emphasis supplied)
13. In so far as accountability under Section 354 IPC is concerned, it is required for 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 CA No. 340/2019 Govinda & Anr. v. State & Anr.
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SCC 215, wherein the Hon'ble Supreme Court1, 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 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)
14. 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.
1 Premiya v. State of Rajasthan, (2008) 10 SCC 81. CA No. 340/2019 Govinda & Anr. v. State & Anr.
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(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 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)
15. 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 CA No. 340/2019 Govinda & Anr. v. State & Anr.
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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 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)
16. 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.
17. Noticeably, for the provisions under Section 341 IPC to be attracted in a case, it has to be established 1 that there was obstruction by the Accused; (ii) such obstruction prevented a person from proceeding in a direction to which he had a right to proceed; and (iii) the Accused caused such obstruction voluntarily. The obstructor must intend or know or would have reason to believe that the means adopted would cause obstruction to the complainant. Reference in this regard is further made to the decision of the Hon'ble High Court of Delhi in State v. Darshan Singh @ Tony & Ors., Crl.L.P. 623/2017, dated 09.04.2025, 1 N.S. Madhanagopal & Ors. v. K. Lalitha, MANU/SC/1805/2022. CA No. 340/2019 Govinda & Anr. v. State & Anr.
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wherein the Hon'ble Court explicated the ingredients of offence under Section 339/341 IPC, in the following terms;
"43. To establish the offence under Section 341, the following ingredients must be satisfied: -
1. Voluntary Obstruction: The accused must have voluntarily obstructed the victim.
2. Prevention from Proceedings: The obstruction must prevent the victim from proceeding in any direction.
3. Right to Proceed: The victim must have a lawful right to proceed in the direction from which they were obstructed.
44. The Apex Court in Keki Hormusji Gharda vs Mehervan Rustom Irani, has observed that the obstruction must be direct and physical, and mere allegations without substantial evidence do not suffice to establish wrongful restraint..."
(Emphasis supplied)
18. In as much as the culpability under Section 506 of IPC is concerned, law is settled that in order for the said provision to apply, 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 very 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 CA No. 340/2019 Govinda & Anr. v. State & Anr.
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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 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)
19. 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. Here, it is further apposite to make reference 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. ...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 CA No. 340/2019 Govinda & Anr. v. State & Anr.
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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)
20. Ergo, being wary of the principles hereinunder noted, this Court would now appreciate the evidence and material placed on record. At the outset, it is pertinent to refer to the deposition/testimony of the victim/'N'/PW-6, who inter alia deposed that she was pursuing her studies in 12 th Standard from open School at the time of her deposition, however, she used to go to School, prior thereto. As per PW-6, in the year 2010, 13th March, accused Govinda, who resides in the same street as the victim, harassed her and asked the victim to 'make friendship with him'. PW-6 further proclaimed that she immediately refused the said proposal, however, upon this, accused Govinda forcibly gave his phone number to her/PW-6. Markedly, though, PW-6 expressed her inability to recollect the said number, however, asserted that accused Govinda threatened her that in case she did not call and talk to him, it would not be good for her/PW-6. As per PW-6, she disclosed the incident to her father, 'MK' and that her parents talked with the family members of the accused persons regarding the said incident and make the accused understand not to repeat the said acts in future. However, as per PW-6, even thereafter, on 17.03.2010, when she/PW-6 was going for her typing class, accused Govinda followed her/PW-6 and threatened that he would throw acid on her/PW-6 as she had disclosed the earlier incident to her/PW-6's father and mother. PW-6 further avowed that she disclosed the said facts also to her father and that her father reported the matter to the police, however, accused Govinda did not change his attitude and continued to harass her/PW-6. It was CA No. 340/2019 Govinda & Anr. v. State & Anr.
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further asserted by PW-6 that at the said time, Govinda's brother, Judi also started harassing her and both the accused persons, namely, Judi and Govinda threatened her/PW-6 that they would do something wrong with her/PW-6 ('kuch galat kar denge'). As per PW-6, her father again made a complaint to the police in police station on 14.07.2010, however, the police did not take any action against the accused persons on both the complaints given by her/PW-6' father. It was further deposed by PW-6 that when the accused persons did not change their behavior towards her/PW-6, a Panchayat was held wherein it was agreed that accused Govinda would not misbehave with PW-6 and a Panchayati faisala was done on 16.07.2010. However, as per PW-6, accused Govinda did not mend his behavior and continued to misbehave with her/PW-6. PW-6 further asserted in her deposition that a few days after 16.07.2010, the exact date of which, PW-6 expressed an inability to recollect, while she/PW-6 was going, accused Govinda held her/PW-6's hand and told his brother, accused Judi @ Pawan to put blade mark on her/PW-6's face. As per PW-6, accused Govinda's elder brother, namely, Sunny was also present there and he told both the accused persons, namely, Govinda and Pawan that could do whatever they liked and that he shall pay the entire expenses, which shall be incurred in the police chowki or otherwise to protect him. PW-6 further proclaimed that she filed a complaint regarding the said incident before the police, however, no action was taken by the police and accused Govinda and Pawan continued with their misbehavior and harassment with PW-6, whenever she used to go somewhere. As per PW-6, the accused persons used to abuse her, threaten her by saying that they would throw acid on her/PW-6's face and they would do some ' galat kaam' with her/PW-6 or 'blade maar dengey'. On 27.07.2010, CA No. 340/2019 Govinda & Anr. v. State & Anr.
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PW-6 asserted that her father again filed a complaint before the police, however, the police did not take any action. Subsequently, on 05.08.2010, as per PW-6, when the accused persons misbehaved with her and threatened her, her father again lodged the complaint before the police, however, the police again did not take any action. As per PW-6, the accused persons were residing in the same gali and whenever she went out of her house, they either threatened her or tried to misbehave with her by touching her hand or pushing her. As per PW-6, the accused persons further threatened her that they would kill her father or disfigure her face by throwing acid or by inflicting injury by blade. It was further asserted by PW-6 that due to the terror of the accused, she was unable to go to School and that her father had lodged many complaints before the police, however, police did not take any action, leading to the filing of complaint before the Court. PW-6 further deposed that the accused persons continued to misbehave with her whenever she used to go out of her house. Further, PW-6 correctly identified the accused persons, namely, Govinda and Pawan as well as co-accused Sunny before the Ld. Trial Court. PW-6 further provided the arrest memo of the accused persons/co- accused persons as Ex. PW 5/A, Ex. PW 5/B and Ex. PW 5/C, all bearing her/PW-6's signature at point B. PW-6 further proved her complaint dated 24.07.2010, filed before SHO DBG Road, as Mark B, bearing PW-6's signatures at point A.
21. Apposite here to note that PW-6 was not cross examined by/on behalf of the accused persons, while the complainant/PW-5 was partly cross examined. In this regard, it is apposite here to refer the order dated 16.07.2015 of the Ld. Trial Court, wherein the Hon'ble Court was pleased to close the accused persons' right to cross examine/further cross examine the said CA No. 340/2019 Govinda & Anr. v. State & Anr.
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witnesses inter alia under the following observations;
"...File perused. Perusal of file reveals that the examination in chief of PW-5 has been recorded way back on 04.03.2013 whereas examination in chief of PW-6 has been recorded on 08.07.2013. Thereafter, till date various effective opportunities viz. 01.07.2013, 21.08.2013, 19.10.2013, 05.05.2014, 06.05.2014, 25.08.2014, 30.09.2014, 13.05.2015 and today also, have been given to the accused persons to cross examine the witnesses but for one or the other reasons, same has not been completed till date. It is submitted by Ld. APP for the State that keeping in the judgement of State of UP vs. Shambu Nath Singh AIR 2001 Sc 1403, the right of the accused persons to cross examine the witnesses present in the Court should be closed today if accused persons did not complete the cross examination of these witnesses. Time frame has also been suggested by Hon'ble Supreme Court in Rajdeo Sharma vs. State of Bihar MANU/SC/0640/1998.
The present chargesheet has been filed way back in the year 2011 and it is almost four years and the evidence of the main witnesses has not been completed till date.
In these circumstances, I deem it appropriate not to give any further opportunity to the accused persons for cross examination of above witnesses. Accordingly, their right to cross examine PW-5 and PW-6 is closed and both these witnesses are hereby discharged..."
(Emphasis supplied)
22. Pertinently, the accused persons, subsequently moved an application under Section 311 Cr.P.C., inter alia seeking permission to recall PW-5 and PW-6. However, the said application was dismissed by the Ld. Trial Court vide its order dated 03.10.2015, inter alia under the following observations;
"...Perusal of record especially order dated 30.09.2014, reveals that only one opportunity was granted to the accused persons to cross examine the PW-5 and PW-6. However, after a lapse of one year, accused persons have not completed the cross examination of the complainant on one pretext or the other and thus their right to cross examine the PW-5 and PW-6 was closed on 16.07.2015.
CA No. 340/2019 Govinda & Anr. v. State & Anr.
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It is not out of place here to mention the landmark judgment of Hussnnaira Khatoon's case wherein Hon'ble Supreme Court has considered the right of speedy trial as one of the fundamental rights. Also, the observations of Hon'ble Supreme Case in State of UP vs Shambu Nath Singh AIR 2001 SC 1403 and Rajdeo Sharma vs State of Bihar MANU/SC/0640/1998 wherein directions have been passed with respect to the completion of the cross examination of the witnesses which cannot be ignored.
As already discussed, accused persons have been given ample effective opportunities on 01.07.2013, 21.08.2013, 19.10.2013, 05.05.2014, 06.05.2014, 25.08.2014, 30.09.2014, 13.05.2015 and 16.07.2015 also to complete the cross examination of the complainant and PW-6 but they have not availed to do the same. It is also to be mentioned that vide order dated 30.09.2014, one last and final opportunity was granted to the accused persons to complete the cross examination of the complainant and PW-6. Force can also be had from the Uber case wherein it has been held by the Hon'ble Supreme Court that there is absence of valid ground to recall the victim and other witnesses as the Ld. Counsel for the accused had already been given opportunity in accordance with the law to examine them. Here, also counsel for the accused had been granted more than required opportunities to examine the victim and other witnesses but of no avail.
In view of afore discussed circumstances, there is no merit in the application u/s 311 Cr.P.C. moved on behalf of the accused persons and the same is hereby dismissed..."
(Emphasis supplied)
23. Strikingly, the accused persons challenged the aforesaid order of the Ld. Trial Court before the Hon'ble High Court of Delhi in case bearing; 'Govind & Ors. v. State & Anr., Crl. MC 5244/2015 & Crl. MA 18916/2015', wherein the Hon'ble Court vide its order dated 19.07.2016, while dismissing the said petition, noted as under;
"...3. I have perused the Trial Court Record which was summoned. The FIR is under Sections 341/354/506 IPC registered at PS DBG Road. The victim a minor girl was examined as PW-6. PW-5 is the father of the victim. For the first time PW-5 Manoj CA No. 340/2019 Govinda & Anr. v. State & Anr.
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Kumar appeared before the Court on 17th November, 2012 for his examination when he was not examined as the learned APP was on leave. The situation remained the same on 30th January, 2013. However, his examination-in-chief was recorded on 4 th March, 2013. On 4th March, 2013 the cross-examination had to be deferred at request of learned counsel for the defendant. Again on 27th April, 2013, 1 July, 2013, PW-5 the father of the victim was present, however he was discharged unexamined. On 21 August, 2013 PW-6 the victim was also summoned, she appeared and her examination-in-chief was recorded. However, her examination was deferred and PW-5 was partly cross-examined. On 19th October, 2013 PW-5 was further partly cross-examined, however PW-6 was discharged unexamined. On 10th February, 2014 again when PW-5 was present he was discharged unexamined. On 5th May, 2014 both PW-5 and PW-6 were present, however despite various calls neither the accused appeared nor the counsel. On 6 th May, 2014 PW-5 was partly cross-examined, however after lunch learned counsel for accused sought deferment as he was not available. Thus, he was recalled on 15 th July, 2014 and 25th August, 2014 when he could not be examined as learned PO was on leave. On 30th September, 2014 adjournment was sought again by learned counsel for accused to cross-examine PW-5 and PW-6. Again on 1 December, 2014 and 11 th February, 2015 both PW-5 and PW-6 were present and they were discharged unexamined. Finally, the matter was listed for cross-examination of PW-5 and PW-6 on 16th July, 2015 when again learned counsel for the accused sought time for cross-examination. Thus, the right of the petitioner to further cross-examine PW-5 and PW-6 was closed.
4. Considering the conduct of the petitioner in delaying the cross-examination and despite the main witnesses being present on number of dates they have not been cross-examined, I find no error in the impugned order by the learned Magistrate dismissing the application of the petitioner for recalling of the witnesses under Section 311 Cr.P.C.
5. Section 311 Cr.P.C. provides that the Court can summon any witness for a just decision of the case. However, the same cannot be for misuse by an accused who does not cross-examine a witness when he is present and defers the same on one pretext or the other and thereafter files an application for recalling of the witness.
CA No. 340/2019 Govinda & Anr. v. State & Anr.
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6. Petition and application are accordingly dismissed.
7. Trial Court record be sent back..."
(Emphasis supplied)
24. Ergo, in light of the foregoing, this Court would proceed with the evaluation of the testimony of the complainant, 'MK'/PW-5 before the Ld. Trial Court, who inter alia asserted that accused Govinda used to eve tease his daughter/victim/'N', while she used to go to School or visit the house of her bua and hold her hand. As per PW-5, accused Govinda forcibly gave his phone number to the victim and threatened her to call him, else dire consequences would ensue. Further, as per PW-5, accused Govinda had given his mobile number to victim/'N' in the month of March, 2010, however, could not recollect the exact date. Correspondingly, as per PW-5, in the last of year, 2009, accused Govinda restrained 'N', caught hold of her hand, and asked her to talk with him. PW-5 further avowed that he complained about the said incident to accused Govinda's mother and that she apologize as well as asked PW-5 that such incident would not occur in future. Further, as per PW-5, when accused Govinda had again given his mobile number to his daughter, victim, in the month of March, 2010, he/PW-5 again complained to the accused's mother, father, uncle and aunt, who are asserted to have apologized and assured that the incident would not be repeated in future. PW-5 further proclaimed that on 17.03.2010, he made a police complaint at Siddhipura Police chowki against accused Govinda, however, the police are stated to have not taken any action on the said complaint for two-three months. Subsequently, on 14.07.2010, accused Govinda is asserted to have again eve-teased his/PW-5's daughter and caught hold her hand and he/PW-5 had made a complaint to the family members of accused, Govinda. As per PW-5, accused CA No. 340/2019 Govinda & Anr. v. State & Anr.
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ABHISHEK GOYAL
GOYAL Date:
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Govinda's brother, namely, Hari Shankar proclaimed at that time, "pehli complaint mai tu kuch nahi karwa paya, hamara kuch nahi hoga", whereupon PW-5 is stated to have made a call at 100 number. As per PW-5, before reaching the police, all the family members of accused Govinda, except Meena, fled from their house and subsequently, returned to their residence on 16.07.2010. PW-5 further deposed that he informed the police officials of the same, whereupon the police took the accused persons to Siddhipura police chowki. Further, as per PW-5, with the intervention of police and some respectable members of the society, matter was compromised, and compromise letter was prepared. PW-5 further proved the photocopy of the said compromise letter as Mark A, however, stated that the same does not bear his/PW-5's signatures. It was further avowed by PW-5 that two-three days of the compromise, accused Pawan threatened his/PW-5's daughter that he would throw acid on her face as well as uttered, " samaj me bhout baijatti ho gai hai, aab hamara koi kuch nahi kar sakta ". Upon this, as per PW-5, he made a complaint, addressed to SHO PS. DBG Road on 27.07.2010, photocopy of which is Mark B. Correspondingly, as per PW-5, accused Pawan Judi and Govinda again threatened his/PW-5's daughter 'N' that they would throw acid on her by proclaiming, "ek samay aaisa aayega ki hum tere satha awadh sambandh baa ke rahengay". Further, as per PW-5, co-accused Hari Shankar stated, "paisa laga dunga, hamara koi kuch nahi kar sakhata, jitne marji complaint de do ". Concomitantly, PW-5 declared that on 05.08.2010, he/PW-5 made a complaint to DCP, photocopy of which is Mark-C, bearing PW-5's signatures at point A, as well as had also made a complaint to ACP. PW-5 further proved the photocopy of the complaint given to in-charge, PP Siddhipura as Mark D. Further, as per PW-5, when CA No. 340/2019 Govinda & Anr. v. State & Anr.
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no action was taken by the police, he/PW-5 filed a complaint before the court as Ex. PW 4/1 bearing PW-5's signature at point A. PW-5 further proved other documents, including the arrest memos of the accused. As per PW-5, his daughter 'N' failed in her exams of 10th standard due to the tension caused by the accused persons. Pertinent to note that PW-5 correctly identified accused, Govinda and Pawan as well as co-accused Sanni @ Hari Shankar before the Ld. Trial Court.
25. Relevantly, in his cross-examination (as aforenoted, partly conducted) by/on behalf of the accused persons, PW-5/complainant inter alia declared as under;
"XXXXXX by Sh. ***, Ld. Counsel for the accused persons.
My daughter has lodged complaint in the police station. It is correct that in the complaint dt. 05.08.2010, in addition to the name of accused persons, name of all their family members are stated. My daughter N*** was born on 07.02.1995. I do not know whether any other case has been registered against the accused persons or not.
Accused persons misbehaved with my daughter in the year 2009 also (in the end) and thereafter since March, 2010, they continued with their misbehaviour or harassment on each and every day. One day, accused Govinda gave one mobile number to my daughter forcefully while she was standing in the staircase. I do not know the mobile number which was given to her. My daughter was studying in class 10th at that time. The school of my daughter is around 300- 400 mts away from my house.
*** *** *** No mobile number which was given by the accused to my daughter is mentioned in the complaint as she threw the said number on the spot when accused handed over to her. I do not know whether accused Govinda is illiterate or not. I am running a factory of making varshers. It is correct that on the complaint of the mother of accused persons, my factory was sealed in the November, 2011. It is incorrect to suggest that she has filed the complaint before MCD and other authorities in the year 2009- 2010. vol. she deliberately filed the complaint, after CA No. 340/2019 Govinda & Anr. v. State & Anr.
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the panchayati compromise in July 2010, when I refused to enter into further compromise with the accused persons for their further acts of misbehaviour with my daughter.
I have shown the complaint to the police while recording my statement U/s 161 Cr.PC that accused misbehaved with my daughter by forcefully giving his mobile number on a small paper. I have never seen accused persons misbehaving with my daughter. Vol. I was told by my daughter that accused persons misbehaved with her in the manner as deposed by me. It is incorrect to suggest that chacha and chachi of accused persons is living as tenant in the house of my brother. It is correct that they are living in 1 no. 10528, Mari chand Chowk. Parents and chacha of accused persons are not our relatives, The number was written on small paper by accused Govinda and given to my daughter. It is correct that a Kalendra 107/151 Cr.PC was lodged against father of accused, all the three accused persons and their chacha and chachi. It is correct that the said kalendra was lodged against me also on 13.03.2010. Again said the said kalendra, the said kalendra was lodged and proceeding were initiated in November, 2010. I have not made any call at no. 100 on 13.03.2010. The incident of giving the number on paper to my daughter is of March, 2010, however, I do not remember the exact date. Neither my daughter nor I lodged any compliant on the date of incident, however, I immediately called the mother of accused persons and complained about the same. On 17.03.2010 1 lodged one complaint in Siddhipura Police Chowki did not made any call at no. 100 before making complaint on 17.03.2010) My daughter cleared her 10th examination in March, 2010. I do not remember whether I had told to the police about the fact that I called the mother of the accused persons in November, 2009 for the purpose of complaining of the misbehaviour by them with my daughter. In the complaint dt. 05.08.2010 I have stated that I had called the parents and relatives of accused persons. I do not remember whether I told this fact to the police while recording my statement u/s, 161 Cr.PC. The incident dt. 14.07.2010 did no took place in my presence, my daughter told me about the same. When my daughter told me everything I immediately called the police at no. 100. Police reached at my house within 10-15 mins at around 10:00 pm. I was present in my house when police came. When police reached our house, a lot of people gather, seeing the CA No. 340/2019 Govinda & Anr. v. State & Anr.
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police. Accused persons could not be arrested on that day as they ran away from their house along with other family members. They returned back to their house on 16.07.2010. Then again I called at number
100. Police came to our house and on 16.07.2010 took all the three accused persons to police station. Then the matter was compromised between us due to the intervention of the elderly people of the locality. It is incorrect to suggest that compromise was facilitated by HC Sukhpal.
On 27.07.2010 my daughter lodged the complaint before SHO, Karol Bagh. She did not called the police at no. 100 before lodging the complaint. I do not remember whether name of Pawan and Sunny are stated in the complaint dt. 16.07.2010. I do not know from where I got the complaint 05.08.2010 typed. It is correct that I disclosed everything to one advocate, who got the complaint typed. He then read over the complaint to me and I after hearing the same signed on the same. Even the complaint dt. 27.07.2010 was got type by my advocate as per the dictation given by my daughter. After hearing the contents of the same from the advocate, my daughter signed the same. My daughter Neha used to sign in English and also in Hindi. However, I sign only in Hindi. It is incorrect to suggest that complaint dt. 17.03.2010 and 27.03.2010 are forged and fabricated. It is correct that both the complaints have different contents and allegations. It is incorrect to suggest that on 17.03.2010 to October 2010 accused Govinda has gone out of station to work in some factory. I do not know whether Govinda and his family believes in Radha Swami Sangh or not. It is incorrect to suggest that Govinda and his family had gone to Radha Swami Sangh on 13.03.2010 till 16.03.2010 at Bulend Saher. It is correct that some of the cases are pending between my brother and chacha and chachi of accused persons. None of these three accused persons had come to my house in July or August, 2010. It is correct that neither his parents and other relatives came to our house in July-August, 2010.
There is no allegation against accused Sunny and Pawan in complaint dt. 17.03.2010. Pyare Lal and Bhagawan Dass are not my relatives. I cannot say whether my daughter disclosed about the incident dt. 13.03.2010 on the same day or next day. My sister is living on the second floor of the house in the staircase of which incident dt. 13.03.2010 occurred. On the first floor one Padam Singh is residing. The ground floor CA No. 340/2019 Govinda & Anr. v. State & Anr.
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of the said premises is closed. May be after one or two days, I told about the incident to my sister also. Before the compromise dt. 16.07.2010, none of the accused persons misbehaved in my presence. I have never seen them or heard them misbehaving with my daughter. But my daughter disclosed me that they misbehaved with her and pursuant to the disclosure made by my daughter, I and my daughter filed the complaints before the police) After 16.07.2010, accused persons continued with their misbehaviour towards my daughter. One day accused Sunny and Pawan threatened her that they would throw acid on her face and would do galat kaam with her or blade maar dengay. I cannot tell the exact date, month and year when they misbehaved in such a manner with my daughter, however it was after 16.07.2010. No incident dt. 27.07.2010 occurred in my presence. Even the incident dt. 05.08.2010 did not occurred in my presence...
*** *** *** XXXXXX by ***, advocate for the accused.
I had made the complaint on 17.03.2010. My daughter had signed the complaint and that complaint was filed against Govinda only. Vol. I had gone to the police station to give the sald complaint. At that time, I was alone. I do not remember the time today. I am illiterate. I do not know the name of the official who received the complaint. I went to police station after two three days of the incident. I discussed the matter with my family members, but I do not remember who were present at that time due to lapse of time. My sister residing at H. no.10528, Manak Pura, Karol Bagh. New Delhi. It is correct that Mr. Padam Singh and Guddi also residing at the same property. It is wrong to suggest that name of Pawan and Sunny was not mentioned in any of the complaint filed with the police. It is correct that there is no Sarpanch in our locality. It is wrong to suggest that no panchayat was held in our locality. In the year 2009-2010, I had a landline number. I do not remember the landline number and same was disconnected since last 3/4/5 years back. The said landline number was installed at my house and we can only receive the calls. I cannot produce the telephone bills. The same was MTNL connection. Govida and Judi@ Pawan had threatened my daughter that they would throw acid and would hurt her by causing Injuries by blade. My entire family was present when the accused persons threatened me and my daughter after the incident dt. 16.07.10. I do CA No. 340/2019 Govinda & Anr. v. State & Anr.
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not remember the exact date when accused persons threatened us, however, it was after three / four days after 16.07.2010 when the matter was compromised before the concerned court.
The compromise which was entered between us before the panchayat, bears the signatures of Pawan and Sunny as accused Govinda was present in the Chowki at that time. His parents and other relatives were present at the time of compromise at concerned panchayat. The panchayat took place in the afternoon, however, I do not remember the exact time. Govinda was arrested on 16.07.10 in the morning by the police, Further cross examination deferred.
*** *** *** XXXXXXX by ****, Ld. Adv., for the accused. On 17.03.2010, a complaint was lodged against accused Govinda. In the year 2010, my daughter Neha was not having any mobile phone. My daughter N*** lodged the complaint against the accused for two times, i.e., on 17.03.2010 and 27.07.2010. My daughter did not make any call to PCR at 100 number. Vol. I made that call) I do not remember if I accompanied my daughter to police station on 13.03.2010. (t is correct that on 13.03.2010 at the time of incident accused Govinda was all alone. Only accused Govinda had given his mobile number to my daughter and Pawan had no role to play till then.
*** *** *** My daughter was born on 07.02.1995. It is correct that the FIR was got registered in the year 2011. (it is correct that in the year 2009, only accused Govinda had confined my daughter and forced her to make illicit relationship with him It is correct that what is written in para no. 3 of the FIR about accused Pawan confining my daughter and making illicit relationship is not true.
I do not know the time of incident on 13.03.2010. Vol. got to know about the incident in the evening when I returned from my factory. My factory was about 500 steps away from my house. My daughter did not tell me about the time of incident. I cannot even tell the day of the week when the incident took place.
It is correct that on 17.03.2010, I had filed the complaint only against accused Govinda and the police had not taken any action on my complaint. On 14.07.2010, when the incident took place, I was at work in my factory. I did not ask my daughter as to where the incident take place. I called the PCR at 100 number at about 10.00 P.M. On 14.07.2010, the CA No. 340/2019 Govinda & Anr. v. State & Anr.
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mother and father of accused Govinda did not come to my house. It is correct that on 05.08.2010, I had lodged a complaint against Munshi Ram, Meena, Padam Singh and Guddi. The police did not take any action against these persons on my complaint.
*** *** *** It is correct that on 16.07.2010, we had entered into a compromise at the police chowki. Accused Govinda had written his mobile number on a piece of paper and handed over the same to my daughter by forcefully holding her hand. The said fact is mentioned in my complaint dated 17.03.2010. At this stage, the witness is shown the complaint dated 17.03.2010. Ld. APP for the state submits that the witness cannot be confronted with the said complaint as the complaint has not been lodged by him but by his daughter. Objection sustained..."
(Emphasis supplied)
26. Germane for the purposes of the present discourse to make a reference to the testimony of PW-9/ Smt. 'R', mother of the victim, who deposed in her testimony before the Ld. Trial Court that her daughter 'N' used to attend typing classes, when accused namely Govinda used to follow her. Further, as per PW-9, accused Govinda lived in the same vicinity and used to call the victim ('N*** ruk'). Thereafter, in the evening, as per PW-9, she called accused Govinda's mother and she came to their residence and she/PW-9 narrated the whole incident by accused Govinda to his mother, whereupon she assured her/PW-9 that he would not repeat the same in future. After few days, as per PW-9, again her daughter told her/PW-9 of the same incident that accused Govinda used to assault her with the intention to outrage her modesty. PW-9 further proclaimed that accused Govinda also caught the hand of her/PW-9's daughter and the matter was settled as the family members of the accused came to her/PW-9's house and they assured that the accused Govinda would mend his behavior in future. PW-9 further deposed that a panchayat was also conducted CA No. 340/2019 Govinda & Anr. v. State & Anr.
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over the said matter to arrive at an amicable settlement, however, she did not know what happened thereafter. However, as per PW-9, Govinda continued his behavior, and they complained the matter to the police. Markedly, upon being cross examined by Ld. Addl. PP for the State, PW-9 inter alia asserted that accused Govinda restrained her daughter and asked her by holding her hand, "tumse dosti karna chahta huin". PW-9 further affirmed that her daughter ignored him and narrated the incident to her as well as her husband. PW-9 further affirmed that once accused, Govinda as well as Pawan @ Judi threatened her/PW-9's daughter to kill her by pouring acid over her. Relevantly, in her cross examination by/at the behest of the accused persons, declared as under;
"XXXXXX by ***, Ld. Counsel for all the accused persons.
My daughter is studying in 13th class in some college in Punjabi Bagh. My daughter was studying in some school may be named as Khalsa/pindigate at a distance of ten minutes from my house. Other children of our house also studying in the said school. My four children are going in the same school but they left the house in near around two to three minutes gap. My children used to go to the school together in the morning shift. My daughter used to attend typing classes at 04:00 PM alone to some Anand's institute. I do not know whether any matter was initiated u/s 107/151 Cr.P.C. in SEM Court, Ajmeri Gate between the accused and the complainant but I had once attended the said Court.
I do not remember the date whether it is 17.03.2010, when a complaint was made by my daughter but she had made the complaint. Thereafter, Panchayat was held but I had not participated the Panchayat proceedings. The Panchayat was organized on the behest of the accused persons for arrival of compromise. I do not know anything about the property disputes going on between the families. It is wrong to suggest that the Uncle and Aunty of the accused was living in tenanted house belonged to my brother in law (Jeth). Smt. Meena is the mother of accused Govinda. I do not know anything about the pendency of the cases filed against us by the Ms. Meena Devi. It is wrong to suggest that Smt. Meena CA No. 340/2019 Govinda & Anr. v. State & Anr. CA No. 347/2019 Shri. 'MK' v. State & Ors. Page No. 41 of 70 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.29 15:42:30 +0530 Devi filed suits against my husband for closing the factory before the National Green Tribunal which has now been closed by the order of NGT. I had not given any mobile daughter. Accused did not write his mobile number on the hand the complainant but he had given one slip to the complainant mentioning his mobile number My daughter did not hand over the said slip to the police or the Panchayat. Vol., my daughter had thrown away the said slip immediately, when the complainant was going to visit the house of her Bua namely Smt. Bimla. Govinda had studied upto IVth class. It is wrong to suggest that Govinda is illiterate. I do not know whether Govinda is working in some factory or not. I have never seen the accused persons misbehaving with the complainant. It is wrong to suggest that accused Govida had never restrained the way of the complainant nor he had misbehaved with the complainant in the manner as mentioned by the complainant. It is further wrong to suggest that no slip was given by accused Govinda to the complainant. It is wrong to suggest that accused Govinda and Pawan @ Judi never threatened my daughter to kill her by pouring acid over her. It is wrong to suggest that during the quarrel accused persons did not give threat to my daughter and myself to take back the complaint otherwise they would kill both of us. It is correct that I did not lodge any complaint against the accused persons. The accused persons are residing in the same gali where we reside. The said gali is not so crowded. It is wrong to suggest that the said gali is very crowded. It is wrong to suggest that the children of our vicinity also used to go to the school with the complainant. It is wrong to suggest that the present matter has been filed just to got vacated the disputed property. It is wrong to suggest that I am deposing falsely..."
(Emphasis supplied)
27. Apposite to further refer to the deposition of PW-8/Sh. Pyare Lal, who deposed that after the quarrel between the parties, both the parties reached at the settlement two to three times. Markedly, the said witness was cross examined by Ld. Addl. PP for the State, wherein he inter alia affirmed that in the month of March, there was a quarrel between both the families of the complainant and the accused persons and that the said quarrel had taken place as accused Govinda, assaulted and misbehaved with CA No. 340/2019 Govinda & Anr. v. State & Anr.
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'N' by obstructing her way and also threatened to disfigure her face by blade and knife. PW-8 further affirmed that he was asked by the complainant to mediate between both the parties to arrive at some settlement and that he/PW-8 was one of the pachs in the settlement over the incident on 16.07.2010. PW-8 further affirmed that even after the said settlement and undertaking to deter, accused Govinda did not mend his behavior, and he continued misbehaving as well as assaulting 'N'. Correspondingly, PW-10/Shri. Gopal and PW-11/Sh. Bhagwan Dass deposed on similar lines, inter alia affirming that a panchayat was held wherein accused persons had undertaken to deter from their conduct. Significantly, for the present purpose, it is also apposite to refer to the deposition of PW-12/W/SI Pushpa, who proclaimed before the Ld. Trial Court that on 04.05.2011, she was posted at PS DBG road as W/ASI and on that day, FIR of the present case was got lodged and the case was marked to her/PW-12, for investigation. Further, as per PW-12, on 05.05.2011, she/PW-12 along with Ct. Devender went to the house of the complainant and joined them in the investigation. As per PW-12, she investigated from the complainant and thereafter, she/PW-12 along with the complainant and wife of the complainant, went in search of the accused and in a gali, found the accused persons/co-accused Hari Shankar @ Sunny, Govinda @ Rajender and Pawan. PW-12 further deposed that she told the accused persons/co-accused that a case was registered against them and thereafter, accused persons/co-accused joined the investigation. PW-12 further asserted that she arrested Hari Shankar @ Sunny, Govinda @ Rajender and Pawan vide arrest memos; Ex. PW-5/A, Ex. PW-5/B and Ex. PW-5/C, respectively, all bearing PW-5's signatures at point B. Further, as per PW-12, she also conducted personal search of accused Shankar CA No. 340/2019 Govinda & Anr. v. State & Anr.
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@ Sunny, Govinda @ Rajender and Pawan @ Judi and prepared the personal search memos; Ex. PW-12/A, Ex. PW-12/B and Ex. PW-12/C, all bearing signatures of PW-12 at point A. PW-12 further avowed that she seized the decision of the panchayat (Mark A) and prepared the seizure memo of the decision of the panchayat (Ex. PW-12/D), bearing PW-12's signatures at point A. Correspondingly, as per PW-12, she investigated the matter from the witnesses of the panchayatnama and recorded the statement of witnesses as well as correctly identified the accused persons in Court. Markedly, in her cross examination, PW-12, asserted as under;
"XXXXXX by Sh. ***, Ld. Counsel for all the accused persons.
It is correct that FIR was registered on the directions of the Court. I do not remember that if I had received any complaint from the complainant. It is correct that I had investigated the matter. It is correct that I informed the accused that the offence is bailable. I do not remember whether I have filed the birth certificate or educational qualifications of the complainant or not. I do not remember if the mother of the accused lodged complaint against complainant daughter of the complainant, Ramchander, Vijay Kumar, Natho Devi on 07.05.2011 with the police station DBG road, DD No. 23-A. It is correct that the judgment dated 16.07.2010 of panchayat was produced before me by the complainant.
It is correct that the panchayatnama dated 16.07.2010 had signatures of all the accused persons. It is correct that the statement of Bhagwan Dass and Gopal was recorded in the police station. It is correct that both Bhagwan Dass and Gopal had put their signatures before me. It is correct that wife of the complainant and the complainant recorded their statement in the police station while statement of daughter of complainant was recorded at her residence. It is correct that ASI Sumer Chand might have filed the chargesheet in this case. It is correct that I have not investigated as to whether property is the real dispute. It is wrong to suggest that I have not recorded the statement of any witness present at the time of arrest of the accused. It CA No. 340/2019 Govinda & Anr. v. State & Anr. CA No. 347/2019 Shri. 'MK' v. State & Ors. Page No. 44 of 70 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.29 15:42:41 is correct that all the accused persons surrendered before me and thereafter I formally arrested the accused persons and gave bail after arrest. I received the FIR dated 04.05.2011 after 6.00 p.m. I arrested the accused persons after registration of FIR. It is correct that Ct. Devender was on duty on 04.05.2011 till that time. It is correct that I have filed the panchayatnama alongwith charge sheet in the Court.
It is correct that Pyare Lal, Bhagwan Dass and Gopal are neighbourers of the complainant. I do not know whether the witnesses are relatives of the complainant or not. It is correct that wife of the complainant has given her statement under Section 161 Cr.PC on 04.05.2011 only. It is correct that I have not recorded statement of wife of the complainant on 02.08.2011. I do not remember whether I investigated from the owner where the accused Govinda was working. I do not remember whether the attendance register of accused Govinda was produced at the time of arrest was filed with charge sheet or not. It is correct that I recorded the mobile number of the accused as the accused wrote the same on the hand of the daughter of the complainant. It is correct that no papers having mobile number of the accused was recovered in the search. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
28. Germane for the present purpose(s) to also refer the testimonies of various defence witnesses, in particular, DW-1/Sh. Hari Kishan, who was the Judicial Assistant, National Green Tribunal, New Delhi at the relevant point in time and produced the case record of file no. 118/2014 (THC) bearing; ' Smt. Meena vs Shri Manoj Kumar ' as well as proved the certified copy of order dated 26.09.2014 [Ex. DW-1/1(OSR)]; certified copy of vakalatnama filed by Kapil Kumar advocate on 26.09.2014 on behalf of Ramchander Manoj Kumar and Natho Devi [ Ex. DW-1/2(OSR)]; certified copy of notice dated 10.05.2011 issued by Smt. Meena to Labour Commissioner and Chief Factory Inspector [Ex. DW-1/3]; certified copy of written statement dated 13.01.2012 filed by Ram Chander, Manoj Kumar and Natho Devi CA No. 340/2019 Govinda & Anr. v. State & Anr.
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along with affidavits [Ex. DW-1/4 (OSR)]; certified copy of status report dated 08.12.2011 [Ex. DW-1/5 (OSR)]; Certified copy of decree sheet dated 08.12.2011 [Ex. DW-1/6 (OSR)]; and copy of complaint dated 25.09.2010 lodged by Smt. Meena against Manoj Kumar, Ram Chander, Vijay Kumar, Laxmi Narain and Manish regarding illegal running factory in residential area [ Ex. DW-1/7 (OSR)]. Appositely, DW-2/Shri Rajiv Ranjan, UDC, Office of the Divisional Commissioner, 5 Shamnath Marg, Delhi, deposed that summoned record had already been destroyed vide letter F.2(01)/Stamp Branch/DT/HQ/2017/360 dated 8.8.2017 (Ex. DW-2/1). Correspondingly, DW-3/Ms. Archana Shakya, Asstt. Ahlmad, in the Court of Shri Rajender Kumar, Ld. ARC, Tis Hazari Court, Delhi produced the record of case bearing no. E-123/14/10 titled as Natho Devi vs Padam Singh from the Court of Shri Rajender Kumar, Ld. ARC, Tis Hazari Courts, Delhi.
29. Apposite to further refer the testimony of DW-4/ Shri Dinesh Kumar who deposed that the complainant, his daughter and accused persons were all residing in the same locality and were his neighbours. DW-4 further deposed that he knew the complainant and his daughter since birth as well as knew the father pf the accused persons, namely, Munshi Ram; mother, Meena Devi and uncle, Padam Singh and other family members. Further, as per DW-4, the accused persons had good moral character and that he was on visiting terms with the complainant and his family members. As per DW-4, the alleged incident did not happen and that he/DW-4 knew that the accused persons' mother had made a complaint against the complainant and his family members. Correspondingly, as per DW-4, uncle of accused, Padam Singh, had taken house of Ram Chander and due to this reason, disputes arose between the accused and complainant. Further, as per DW-4 CA No. 340/2019 Govinda & Anr. v. State & Anr.
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all the complainant lodged by the complainant against the accused persons were false and fabricated. Further, as per DW-4, no panchayat had taken place between both the parties, besides the accused Govinda, as per DW-4, had not assaulted or misbehaved with complainant and his daughter at any point of time. Relevantly, in his cross examination, DW-4 declared as under;
"XXXXXX by Ld. APP for the State.
All the accused persons are my neighbours and I know them since my birth. I have friendly relations with accused persons. It is correct to suggest that today I came in Court to save the accused persons as I have friendly relations and visiting terms with the accused persons. Vol. I came to the Court for telling truth. It is wrong to suggest that uncle of accused Padam Singh had not taken the house of Ram chander due to which dispute arose between accused and complainant. It is wrong to suggest that I am deposing falsely."
(Emphasis supplied)
30. Consequently, in light of the foregoing this Court would proceed with the determination of the rival contentions raised by the parties (by/on behalf of the accused persons, complainant and the State) before this Court. In this regard, this Court also deem it apposite to reiterate 1 at the outset that the incident in question pertain to period when the Criminal Law (Amendment) Act, 2013 had not come into force by virtue of which the provisions under Sections 354A to 354D were introduced under IPC. Needless to mention, the charges against the accused persons pertain to offences under Sections 354/341/506 IPC read with Section 34 IPC. Ergo, under such background, it would be relevant to deal the objection of the Ld. Counsel for the 1 Reference is made to para 48 of the impugned judgment wherein the Ld. Trial Court, noted, "...48. The incidents complained of in the present case are of the year 2009-2010 and criminal amendment Act, 2013 vide which Section 354A, etc., were added had not come into force. In view of the same at that time, Section 354A, 354B, 354C & 354D and other sections were not the part of legislation." Apposite to further make a reference to the provisions under Article 20(1) of the Constitution of India which provides, "No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence." (Emphasis supplied) CA No. 340/2019 Govinda & Anr. v. State & Anr.
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accused persons, inter alia, to the effect that the conviction of the accused persons could not have been premised on the testimony of the victim PW-6/'N' in the absence of corroboration from any independent witnesses, especially when the evidence of PW-5/the complainant and PW-9 is in a nature of hearsay. Appositely, in order to deal with the said contentions, this Court deems it pertinent to outrightly make a reference to the decision of the Hon'ble Supreme Court in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, wherein the Hon'ble Court, while dealing with evidentiary value of the sole victim/prosecutrix, noted as under;
"21. ...The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
(Emphasis supplied)
31. Analogously, the Hon'ble High Court of Delhi in State (NCT of Delhi) v. Pratap Singh, 2016 SCC OnLine Del 3207, in the similar context observed as under;
"17. It is now well-settled that conviction for an offence of rape/sexual assault can be based on the sole testimony of prosecutrix, if the same is found to be natural, trustworthy and worth being relied on. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars..."
(Emphasis supplied)
32. Demonstrably, it is observed from above that it is a CA No. 340/2019 Govinda & Anr. v. State & Anr.
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settled law that conviction for an offence of sexual nature/one affecting modesty of woman, can be based on the sole testimony of the prosecutrix. In fact, even on a general principle, it has been recurrently avowed1 by superior courts in a catena of decisions that there is no legal impediment in convicting a person on the sole testimony of a single witness if the version of such a witness is clear and reliable, reason underlying the same being; 'the evidence has to be weighed and not counted'. Notably so, in the instances of sexual offences, courts have even gone on to the extent to appreciate and declare2 that to seek corroboration to the testimony of the prosecutrix/victim, before relying upon the same would amount to adding insult to the injury sustained by such victim and have, consequently, deprecated such practice. Unmistakably, the reasons for the same can be easily inferred from the decision of the Hon'ble Supreme Court3 in State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550, wherein the Hon'ble Court observed as under;
"17. We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the western and European countries. Our standard of decency and morality in public life is not the same 1 Kusti Mallaiah v. State of A.P., (2013) 12 SCC 680. 2 State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and Munna v. State of M.P., (2014) 10 SCC 254 3 Reference also made to the decision of the Hon'ble Supreme Court in; Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217.
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2025.04.29 15:43:38 +0530 as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity."
(Emphasis supplied)
33. Concurrently, this Court is also cognizant of the fact that the incidents of sexual offences usually occur in secrecy, out of public gaze and even in the cases where witnesses to such events exit, they may not be forthcoming in supporting the prosecution's case. Unmistakably, under such circumstances, to discard the sole testimony of a prosecutrix/victim, consistent in material particulars and withstanding the rigors of cross-examination, would amount to causing gross prejudice as well as aggravating the plight of such victim/prosecutrix on one hand, while acting as impetus for the potential perpetrators of similar offences to proceed with their nefarious designs. Needless to mention the same would not only perpetuate a sense of blameworthiness in the prosecutrix/victim of such offences, rather, expose such a victim to stigmatization and penalization in the hands of the society despite the courage exhibited by her to speak out against her perpetrator. Indisputably, such a recourse would act antagonist to, both, the rule or law as well as the sense of justice, on which the entire criminal jurisprudence and rule of law are premised. Accordingly, the contention of the Ld. Counsel for the accused persons CA No. 340/2019 Govinda & Anr. v. State & Anr.
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pertaining to the lack of corroboration in the testimony of the victim in the instant case, necessitates appreciation by this Court in light of the foregoing observations.
34. Correspondingly, in order to accurately appreciate the contention of Ld. Counsel for the accused persons pertaining to contradictions/discrepancies in the testimonies of various prosecution witnesses, it would be germane at this stage to explore the judicial precedents governing the law of contradictions in the testimony of the witness. In this regard, this Court deems it apt to outrightly make a reference to the decision of the Hon'ble Supreme Court in State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, wherein the Hon'ble Court inter alia observed as under;
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals..."
CA No. 340/2019 Govinda & Anr. v. State & Anr.
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35. Similarly, the Hon'ble Apex Court in Rammi v. State of M.P., (1999) 8 SCC 649, while dealing with similar issue, remarked as under;
"24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."
(Emphasis supplied)
36. Patently, from a conjoint reading of the above, it is unambiguously deduced that minor discrepancies, which do not go into the root of the matter and shake the basic version of the witnesses, cannot be permitted to be annexed with any undue weight. In fact, it is trite law1, the discrepancies which do not shake the basic version of the prosecution and those which emanate due to normal errors of perception or observation should not be given importance and must necessarily be discarded. The rationale behind the same is quite obvious, as elucidated by the Hon'ble Supreme Court in State of U.P. v. Naresh, (2011) 4 SCC 324, inter alia recording as under;
"30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a 1 Appabhai v. State of Gujarat, 1988 Supp SCC 241 CA No. 340/2019 Govinda & Anr. v. State & Anr.
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contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." [Ed.: As observed in Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p. 192, para 9.
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited..."
(Emphasis supplied)
37. Consequently, to recapitulate, in order to discard the testimony of a witness, it is imperative that the same is replete with material improvements, contradictions and variation. In contrast, law provides for due concession for marginal variations and normal discrepancies in the statement/testimony of a witness, which are bound to occur due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Ergo, in light of the foregoing, when the testimonies of the witnesses brought on record, in particular that of PW-6/victim is scrupulously analyzed, it is observed that the victim unambiguously deposed that on 13.03.2010, accused Govinda, who resides in the same street as her, harassed her/PW-6 and asked CA No. 340/2019 Govinda & Anr. v. State & Anr.
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her to, 'make friendship with him'. PW-6 further proclaimed that she immediately refused the said proposal, however, upon this, accused Govinda forcibly gave his phone number to her/PW-6. Correspondingly, as per PW-6, even thereafter, on 17.03.2010, when she/PW-6 was going for her typing class, accused Govinda followed her/PW-6 and threatened that he would throw acid on her/PW-6 as she had disclosed the earlier incident to her/PW-6's father and mother. As aforenoted, it was further asserted by PW-6 that Govinda's brother, Judi also started harassing her and both the accused persons, namely, Judi and Govinda threatened her/PW-6 that they would do something wrong with her/PW-6 (' kuch galat kar denge'). PW-6 further asserted in her deposition that a few days after 16.07.2010, the exact date of which, PW-6 expressed an inability to recollect, while she/PW-6 was going, accused Govinda held her/PW-6's hand and told his brother, accused Judi @ Pawan to put blade mark on her/PW-6's face. As per PW-6, accused Govinda's elder brother, namely, Sunny was also present there and he told both the accused persons, namely, Govinda and Pawan that could do whatever they liked and that he shall pay the entire expenses, which shall be incurred in the police chowki or otherwise to protect him. As per PW-6, the accused persons used to abuse her, threaten her by saying that they would throw acid on her/PW-6's face and they would do some ' galat kaam' with her/PW-6 or 'blade maar dengey'. Correspondingly, PW-5, though deposed that he had not witnessed any of the incidents of harassment of the victim in the hands of the accused persons, however, proclaimed that he was informed of the said incidents by his daughter/victim 'N'. Markedly, similar assertion was made by PW-9, mother of the victim. Undoubtedly, this Court is in conscious and in tandem with the submission of Ld. Counsel for CA No. 340/2019 Govinda & Anr. v. State & Anr.
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the accused persons that PW-5 and PW-9 are not eye-witnesses, rather, hearsay in so far as the incidents in question are concerned. However, this Court is in concurrence with the observation of the Ld. Trial Court that the testimonies of PW-5 and PW-9 are relevant for the purposes of demonstrating res gestae and the subsequent conduct of the prosecutrix/victim in terms of the provisions Section 6 and 8 of the Evidence Act. Ergo, when the testimonies of the aforesaid prosecution witnesses are conscientiously analyzed, it is observed that the prosecutrix/victim/PW-6 and PW-5 as well as PW-9 are consistent in so far as the role of accused namely, Govinda is concerned. As aforenoted, the victim has specifically asserted that the said accused used to follow her, obstruct her way, coerce her to have interaction with him, forcibly gave her/victim his/accused Govinda's number on 13.03.2010 and 17.03.2010, besides also held her hand, a few days after 16.07.2010, instigating his brother to put blade on the victim's/PW-6's face. Needless to mention, the victim also specifically asserted that the said accused/accused Govinda used to threaten her, in particular, he threatened her on 17.03.2010 while she was on her way to her class, proclaiming that he would throw acid on her/PW-6 as she had disclosed the earlier incident to her/PW-6's father and mother. Ergo, under such circumstances, in the considered opinion of this Court, from the material placed on record, the ingredients of offence under Section 354/341/506 IPC stand proved unambiguously and 'beyond reasonable doubt' against accused, Govinda. However, in so far as the accused, Pawan @ Judi is concerned, it is noted from the case record that there is no specific allegation of the said accused assaulting or using criminal force on the victim with an intention to outrage her modesty or of the said accused's obstructing victim's path, so as to prevent her from CA No. 340/2019 Govinda & Anr. v. State & Anr.
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moving a particular direction. In fact, the allegation of harassment against accused Pawan @ Judi are not only general in nature even in the testimony of the victim, rather, they do not bespeak of such harassment, having being inflicted by the said accused with any mens rea to outrage the modesty of victim or in any manner describe, what actually transpired between the victim and accused Pawan @ Judi in those incident. In fact, even under the deposition of victim's father/PW-5, allegations against accused, Pawan @ Judi are directed towards the said accused's threatening the victim of dire consequences.
38. Correspondingly, when the testimonies of PW-6, PW-5 and PW-9 are conscientiously analyzed, in light of other material placed on record, it is observed that even the allegations of the accused Pawan @ Judi subjecting threats of dire and severe consequences are not explicated with the date time and particulars when such events had transpired. In fact, as aforenoted, PW-6 in her deposition merely asserted that Govinda's brother, Judi also started harassing her and both the accused persons, namely, Judi and Govinda threatened her/PW-6 that they would do something wrong with her/PW-6 ('kuch galat kar denge'). However, as aforenoted, neither the date time and particular of such incident is forthcoming on record, nor the manner of harassment explained. In fact, even the assertion of PW-6 in her deposition that the accused persons used to abuse her, threaten her by saying that they would throw acid on her/PW-6's face and they would do some ' galat kaam' with her/PW-6 or 'blade maar dengey' is also general in nature in so far as the victim in her testimony did not disclose the particulars of date, time and place, when she was subjected to such abuse and threat. Similarly, PW-6 deposed that the accused persons were residing in the same gali and whenever she went out CA No. 340/2019 Govinda & Anr. v. State & Anr.
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of her house, they either threatened her or tried to misbehave with her by touching her hand or pushing her. However, again, the particulars of date, time and place, when she was subjected to such harassment or misbehavior is not forthcoming under the deposition of PW-6. Needless to mention that, though, PW-5 proclaimed in his testimony that two-three days of the compromise, accused Pawan threatened his/PW-5's daughter that he would throw acid on her face as well as uttered, " samaj me bhout baijatti ho gai hai, aab hamara koi kuch nahi kar sakta ". Correspondingly, PW-5 further proclaimed accused Pawan @ Judi and Govinda again threatened his/PW-5's daughter 'N' that they would throw acid on her by proclaiming, " ek samay aaisa aayega ki hum tere satha awadh sambandh baa ke rahengay". However, no such assertions are forthcoming under the deposition of the victim. Ergo, in light of the foregoing the deposition of PW-5 would not be of much significance in the present case, especially when PW-5 asserted that he had not witnessed any of the said incidents and was merely informed of the same by the victim. Needless to reiterate that even in the testimony of PW-6 or PW-5, commonality of any action or mens rea or preconception or even any over act on the part of accused Pawan @ Judi is forthcoming. In fact, as aforenoted, even in the deposition of PW-5, there are mere blatant assertion against accused Pawan @ Judi, without specifying any date, time or place of alleged occurrence or the actual role or action on the part of the said accused even on the alleged incident that occurred subsequent to the compromise. Consequently, in light of the foregoing, this Court, respectfully disagrees with the finding of the Ld. Trial Court that the prosecution has been able to prove the ingredients of offences under Section 341/354/506 IPC against the accused, namely, Pawan @ Judi, 'beyond a shadow of doubt'. CA No. 340/2019 Govinda & Anr. v. State & Anr.
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Even otherwise, it is noted herein that it is a settled law1 that in case where two views are possible, the one in favour of the accused and the other adversely against it, the view favouring the accused must be accepted.
39. However, in so far as the conviction of accused Govinda is concerned, this Court finds itself difficult to concede with the averment of the Ld. Counsel for the accused persons that there is material contractions in the testimony of prosecution witnesses and that the non-recovery of slip where the accused Govinda had given his number to the victim or the ambiguity whether such number was written on hand or on a slip of paper are material, as otherwise contended by Ld. Counsel for the accused persons. Even otherwise, this Court is conscious of the repeated avowal of the superior courts2 that witnesses tend to exaggerate the prosecution story and that under such circumstances, if the exaggeration does not change the prosecution story or convert it into an altogether new story, allowance can be made for it. Reference in this regard is further made to the decision in Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble & Ors., MANU/SC/0677/2003, wherein the Hon'ble Apex Court, while iterating similar sentiments, noted as under;
"27. ...Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extend the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witnesses, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness 1 Raghunath v. State of Haryana, (2003) 1 SCC 398, Dhan Kumar v. Municipal Corporation of Delhi, (1980) 1 SCC 605 and State of U.P. v. Nandu Vishwakarma, (2009) 14 SCC 501. 2 Sheesh Ram & Ors. v. State of Rajasthan, MANU/SC/0063/2014. CA No. 340/2019 Govinda & Anr. v. State & Anr. CA No. 347/2019 Shri. 'MK' v. State & Ors. Page No. 58 of 70 Digitally signed by ABHISHEK ABHISHEK GOYAL Date:
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whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr.
v. The state of Madhya Pradesh, MANU/SC/0254/1972: 1972CriLJ1302 and Ugar Ahir and Ors. v. The State of Bihar, MANU/SC/0333/1964: AIR1965SC277. An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh, MANU/SC/0093/1952: AIR1954SC15 and Balaka Singh and Ors. v. The State of Punjab, MANU/SC/0087/1975: 1975CriLJ1734 . As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr., MANU/SC/0254/1981: 1981CriLJ1012, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc., MANU/SC/0327/2002:
2002CriLJ2645, Gangadhar Behera and Ors. v. State of Orissa, MANU/SC/0875/2002: 2003CriLJ41 and Rizan and Anr. v. State of Chhattisgarh, MANU/SC/0036/2003: 2003CriLJ1226..."
(Emphasis supplied)
40. Needless to further mention that the Ld. Counsel has endeavored to accentuate on the 'so called' improvements in the testimony of victim vis-à-vis her earlier statements, which cannot be considered by this Court at this stage, in the absence of any confrontation of the witness in terms of the provisions under Section 161/162 Cr.P.C. read with Section 145 of the Evidence CA No. 340/2019 Govinda & Anr. v. State & Anr.
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2025.04.29 15:44:19 Act. Needless to reiterate that the right to cross examine PW-6 and further cross examined of PW-5 was closed by the Ld. Trial Court and the order of recall of such witnesses, which was disallowed by the Ld. Trial Court was also upheld by the Hon'ble High Court. Reference in this regard, is made to the decision of the Hon'ble Supreme Court in V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588, wherein the Hon'ble Court, after duly considering various provisions under law, in particular that under Section 161/162 Cr.P.C. and Section 145 of the Evidence Act, observed as under;
"16. Section 162 CrPC bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) CrPC can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) CrPC. The statements under Section 161 CrPC recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and (iii) the re-examination of the witness if necessary.
17. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 CrPC "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross- examination of the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.
*** *** ***
19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous CA No. 340/2019 Govinda & Anr. v. State & Anr.
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statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross- examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction."
(Emphasis supplied)
41. Correspondingly, in as much as the contention of Ld. Counsel for the appellant pertaining to victim's falsely implicating the accused in the present case owing to fact that the uncle/chacha of the accused persons was in possession of the property belonging to the bhabhi of the complainant and that the said premise was sought to be vacated by means of the present proceedings, does not find favour with this Court. In this regard, it is noted that the said uncle/chacha has not stepped into witness box and in the absence of such suggestion having been put to the victim in the absence of CA No. 340/2019 Govinda & Anr. v. State & Anr.
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signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
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her cross examination, said defence does not get unambiguously stand proved in the instant case. Correspondingly, this Court is also in concurrence with the observation of the Ld. Trial Court that the incident in question pertaining to 17.03.2010 in prior in time to the complaint dated 25.09.2010, filed by the mother of the accused against the complainant, herein. Simultaneously, this Court is also in concurrence with the finding of the Ld. Trial Court that the 'so- called' settlement agreement Mark-A cannot be considered by this Court in the absence of proof thereof by the progenitor thereof, especially when accused, Govinda did not participate in the panchayat. Even otherwise, the said document (Mark A) has not been shown to have been executed by the victim herein. Needless to mention that the offence under Section 354 IPC is non- compoundable in nature.
42. Accordingly, in light of foregoing, this Court is of the considered opinion and in agreement with the finding of the Ld. Trial Court that the testimony of the victim has been consistent and unwavering in the instant case, in so far as the commission of incident by accused, namely, Govinda is concerned. As aforenoted, the victim specifically asserted that the said accused used to follow her, obstruct her way, coerce her to have interaction with him, forcibly gave her/victim his/accused Govinda's number on 13.03.2010 and 17.03.2010, besides also held her hand, a few days after 16.07.2010. Needless to reiterate, the victim also specifically asserted that the said accused/accused Govinda used to threaten her, in particular, he threatened her on 17.03.2010 while she was on her way to her class, proclaiming that he would throw acid on her/PW-6 as she had disclosed the earlier incident to her/PW-6's father and mother. Ergo, under such circumstances, in the considered opinion of this Court, from the material placed on CA No. 340/2019 Govinda & Anr. v. State & Anr.
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Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
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record, the ingredients of offence under Section 354/341/506 IPC1 stand proved unambiguously and 'beyond reasonable doubt' against accused, Govinda. However, as aforenoted that even from the material placed on record, culpability against accused, Pawan @ Judi is not made out in the instant case, beyond reasonable doubt. Needless to further mention that though it holds highest regard for the decisions relied upon by the Ld. Counsel for the accused persons in support of his contentions, however, the same would not come to the aid of the said accused, in the manner as proposed, as the facts and circumstances of the present case are clearly distinguishable.
43. In so far as the adequacy of sentence, as asserted by Ld. Counsel for the complainant is concerned, this Court deems it apposite to observe that Section 372 Cr.P.C. creates and confers a limited right on the victim to prefer an appeal only against an order, "...acquitting the accused or convicting for a lesser offence or imposing inadequate compensation..." In fact, the superior courts2 have repeatedly affirmed that no right has been conferred to the complainant/victim to file appeal for questioning the order of sentence as inadequate. In this regard, reference is made to the decision of the Hon'ble Supreme Court in Parvinder Kansal v. State of NCT of Delhi & Ors., MANU/SC/0650/2020, wherein the Hon'ble Court in akin context, remarked as under;
1 Reference is made to the decision of the Hon'ble Allahabad High Court in Om Prakash v. State, MANU/UP/0102/1956, inter alia recording, "...The effect, therefore, of mentioning Section 34, I. P. C., is that the prosecution takes upon itself the responsibility of proving some additional facts with a view to make the accused liable for an enhanced punishment. If, therefore, the charge in respect of Section 34, I.P.C., fails because the prosecution is unable to prove those additional facts or particulars, there should be no reason why the conviction of the accused for the substantive offence should not be recorded where the prosecution has been able to prove all the facts needed to support the conviction of a single individual for the substantive offence.*** 60. To sum up, a scrutiny of the real Import, nature and ambit of Section 34 of the I. P. Code, a contrast of the same with Section 149 of the I. P. Code, a survey of the relevant provisions of the Code of Criminal Procedure, as also a reference to the decisions of the Supreme Court, the Privy Council and the Indian High Courts would bear out the proposition that where an accused is charged with a substantive offence by invoking the aid of Section 34, I. P.C., there is no legal bar to the conviction of the accused under the substantive offence simpliciter..." (Emphasis supplied) 2 Girish Chand Singh v. State of U.P. & Ors., MANU/UP/1591/2024. CA No. 340/2019 Govinda & Anr. v. State & Anr.
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"A reading of the proviso makes it clear that so far as victim's right of appeal is concerned, same is restricted to three eventualities, namely, acquittal of the Accused; conviction of the Accused for lesser offence; or for imposing inadequate compensation. While the victim is given opportunity to prefer appeal in the event of imposing inadequate compensation, but at the same time there is no provision for appeal by the victim for questioning the order of sentence as inadequate, whereas Section 377, Code of Criminal Procedure gives the power to the State Government to prefer appeal for enhancement of sentence. While it is open for the State Government to prefer appeal for inadequate sentence Under Section 377, Code of Criminal Procedure but similarly no appeal can be maintained by victim Under Section 372, Code of Criminal Procedure on the ground of inadequate sentence. It is fairly well settled that the remedy of appeal is creature of the Statute. Unless same is provided either under Code of Criminal Procedure or by any other law for the time being in force no appeal, seeking enhancement of sentence at the instance of the victim, is maintainable. Further we are of the view that the High Court while referring to the judgment of this Court in the case of National Commission for Women v. State of Delhi and Anr.
MANU/SC/0831/2010 : (2010) 12 SCC 599 has rightly relied on the same and dismissed the appeal, as not maintainable..."
(Emphasis supplied)
44. Clearly, seen in light of the above, this Court unambiguously notes/reiterates that while a victim is given an opportunity to prefer an appeal in the event of imposition of inadequate compensation, however, no appeal challenging insufficiency of sentence can be preferred by a victim by seeking recourse to the provisions under Section 372 Cr.P.C. Ergo, in light of the foregoing, in so far as the appeal preferred by the complainant1 is concerned, challenging the inadequacy of sentence 1 Father of the victim is also a victim. Reference is made to the decision of the Hon'ble High Court of Delhi in Ram Phal v. State & Ors., MANU/DE/1687/201553 , wherein the Hon'ble High Court noted, "53. To summarize, the conclusions from the above discussion are:*** (i) "victim" in Section 2(wa), by virtue of being defined as "a person who has suffered any loss or injury" must include a person who has suffered "harm caused to the mind', given that Section 2(y) of the Code of Criminal Procedure incorporates the definition of "injury" in Section 44 of the IPC into the Code.*** (ii) The "means X and includes Y" clause in Section 2(wa) cannot be interpreted so as to result in the included meaning Y excluding the actual meaning X of the term being defined; thus "legal heirs" who are included within the definition of the term 'victim' cannot exclude those who actually fall within the definition of 'victim' by virtue of emotional harm suffered, such as the father CA No. 340/2019 Govinda & Anr. v. State & Anr.
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imposed to the accused persons, same is not maintainable in view of the embargo contained under Section 372 Cr.P.C. Nonetheless, reverting to the contention of Ld. Counsel for the accused persons regarding grant of benefit of probation or lesser sentence to the accused, this Court deems it apposite to note that though, the penal provisions under law/IPC, prescribe for penalties to be imposed for offences, however, no harmonized strategies exist for the manner and quantum of sentence which may be awarded to an accused in each case. In fact, law provides for a considerable relaxation/discretion to the Courts at the time of awarding sentence, which in the light of persistent avowals of the superior courts1, has to be exercised, mindful of such parameters. Indisputably, the inclination of courts is usually tilted towards reformative and rehabilitative approach towards the accused, however, superior court have also incessantly cautioned that sentencing should be adequate, just, and reasonable, for exercising undue sympathy, by imposing inadequate sentence may often result into causing more harm to the justice system. In this regard, reference is made to the decision of the Hon'ble Supreme Court in Hazara Singh v. Raj Kumar, (2013) 9 SCC 516 , wherein the Hon'ble Court observed as under;
"17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons or siblings of a deceased victim or other categories of persons (based on proximity) noted previously.*** (iii) The laws of inheritance, which decide one's "legal heirs", are not intended to be solely determinative of the entitlement to exercise the rights of the victim, in the criminal trial/appeal, on his/her death, application of Heydon's mischief rule, given that the object of the 2008 Amendment Act was to ensure the involvement of the victim, who has a presumably personal interest in the fair and efficient prosecution of the trial/appeal. Resultantly, it is impermissible for an appellate court to shut out an appeal by a "legal heir" based only on her/his not being an immediate heir, or being lower down in hierarchy vis-à-vis entitlement to the crime victim's estate." (Emphasis supplied) 1 'X' v. State of Maharashtra, (2019) 7 SCC 1; and Sunil Dutt Sharma v. State (Govt. of NCT of Delhi), (2014) 4 SCC 375.
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used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."
(Emphasis supplied)
45. Similarly, the Hon'ble Supreme Court in Raju Jagdish Paswan v. State of Maharashtra, (2019) 16 SCC 380, while iterating the objective behind sentencing enunciated as under;
"9. The maintenance of peace, order and security is one of the oldest functions of the civil society. The imposition of penal sanctions on those who have infringed the rules by which a society has bound itself are a matter of legitimate interest to the members of the society...Punishment is the just desert of an offender. The society punishes not because it has the moral right to give offenders what they deserve, but also because punishment will yield social useful consequences: the protection of society by incapacitating criminals, the rehabilitation of past offenders, or the deterrence of potential wrongdoers...The purposes of criminal sentencing have traditionally been said to be retribution, deterrence and rehabilitation. To these there may now perhaps be added: incapacitation (i.e. putting it out of the power of the offender to commit further offences) and the maintenance of public confidence..."
(Emphasis supplied)
46. Apposite to further observe that besides the resolute affirmations of the superior courts, inclined towards the grant of just and appropriate sentence, there has also been a cautionary word1 that mere long pendency of case is no ground to award lesser sentence. Needless to mention, courts 2 have also declared that an offence which affects the morale of the society should be dealt 1 State of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13. 2 State of M.P. v. Bablu Natt, (2009) 2 SCC 272 CA No. 340/2019 Govinda & Anr. v. State & Anr.
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with a heavy hand. Further, the practice of awarding sentence, less than the minimum prescribed under law has been assiduously deprecated by the Hon'ble Supreme Court1 and even in cases, where discretion is granted/afforded to the courts under law to show some relaxation even in the cases where minimum sentence is prescribed, courts are cautioned to take due consideration of just, proper, adequate and sufficient reasons to do so. Reference in this regard is made to the decision of the Hon'ble Supreme Court in State of M.P. v. Babbu Barkare, (2005) 5 SCC 413, wherein the Hon'ble Court inter alia noted as under;
"19. In both sub-sections (1) and (2) of Section 376 minimum sentences are prescribed.
20. Both in cases of sub-sections (1) and (2) the court has the discretion to impose a sentence of imprisonment less than the prescribed minimum for "adequate and special reasons". If the court does not mention such reasons in the judgment there is no scope for awarding a sentence lesser than the prescribed minimum.
21. In order to exercise the discretion of reducing the sentence the statutory requirement is that the court has to record "adequate and special reasons" in the judgment and not fanciful reasons which would permit the court to impose a sentence less than the prescribed minimum. The reason has not only to be adequate but also special. What is adequate and special would depend upon several factors and no straitjacket formula can be indicated. What is applicable to trial courts regarding recording reasons for a departure from minimum sentence is equally applicable to the High Court. The only reason indicated by the High Court is that the accused belonged to rural areas. The same can by no stretch of imagination be considered either adequate or special. The requirement in law is cumulative."
(Emphasis supplied)
47. Correspondingly, this Court deems it pertinent to make a reference to the decision of the Hon'ble Supreme Court in 1 Harendra Nath Chakraborty v. State of W.B., (2009) 2 SCC 758 CA No. 340/2019 Govinda & Anr. v. State & Anr.
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State of Rajasthan v. Sri Chand, (2015) 11 SCC 229 , wherein the Hon'ble Court, while dealing with the applicability of the provisions under Probation of Offenders Act to the offence under Section 354 IPC, inter alia observed as under;
"10. Now we move to the question of sentence vis- à-vis the benefit granted under the Probation of Offenders Act, 1958. In Ajahar Ali v. State of W.B. [Ajahar Ali v. State of W.B., (2013) 10 SCC 31:
(2013) 3 SCC (Cri) 794], this Court while dealing with the question of applicability of the 1958 Act to an offence under Section 354 IPC, found as follows:
(SCC p. 35, para 12) "12. In the instant case, as the appellant has committed a heinous crime and with the social condition prevailing in the society, the modesty of a woman has to be strongly guarded and as the appellant behaved like a roadside Romeo, we do not think it is a fit case where the benefit of the 1958 Act should be given to the appellant."' (Emphasis supplied)
48. Similarly, the Hon'ble High Court of Bombay in Manoj v. State of Maharashtra, 2023 SCC OnLine Bom 1660 , in similar situation noted as under;
"19. The benefit under the Probation of Offenders Act can not be extended as the offence under Section 354 of the Penal Code, 1860 is moral turpitude. Regarding the term of imprisonment, the minimum sentence for the offence under Section 354 of the Penal Code, 1860 has been awarded. Therefore, the term of imprisonment can also not be modified."
(Emphasis supplied)
49. Ergo, in light of the aforesaid observations and dictates1, as well as considering the provisions under the Probation of Offenders Act, this Court resolutely iterates that in light of the factual scenario of the present case and the offences involved, especially being further cognizant of the fact that the offences in the instant case were directed against a woman, who was a minor 1 Refer also to; State of Rajasthan v. Sri Chand, (2015) 11 SCC 229 CA No. 340/2019 Govinda & Anr. v. State & Anr.
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at the relevant point in time, Ld. Trial Court had acted quite leniently by awarding minimum sentence, prescribed under law for the offences under Section 341/354/506 IPC by awarding simple imprisonment for a period of 01 (one) year along with fine of Rs. 6,000/- (Rupees Six Thousand only) of which Rs. 5,000/- (Rupees Five Thousand only) was directed to be paid to the complainant, namely, 'MK', as compensation, for the offence under Section 354 IPC; simple imprisonment for a period of 01 (one) month along with fine of Rs. 500/- (Rupees Five Hundred only) each, for the offence under Section 341 IPC; and simple imprisonment for a period of 01 (one) year for the offence under Section 506 (Part II) IPC. Needless to mention, in light of the foregoing, no benefit of probation can be accorded in favour of the accused Govinda. Quite understandably, considering that the purpose of sentencing is not only to punish the errant behavior but to also have deterrent effect on the society, accused Govinda does not, in the considered opinion of this Court, deserves/cannot be conferred with any benefit of the said enactment. Needless to mention, if such/similarly placed accused persons are bestowed with the benefit of probation, same may encourage other like- minded criminal to commit similar/such crimes, jeopardizing the interest of society.
50. Conclusively, in light of the foregoing, Crl. Appeal No. 340/2019, preferred by the accused persons, namely, Govinda and Pawan @ Judi is partly allowed in so far as the conviction and sentence of accused namely Govinda, same is upheld . However, accused, Pawan @ Judi is acquitted of the charges levelled against him. Consequently, accused Govinda is directed to surrender before the Ld. Trial Court within a period of ten days from today for serving the sentence/remainder period thereof. However, in so CA No. 340/2019 Govinda & Anr. v. State & Anr.
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far as the appeal bearing, Crl. Appeal No. 347/2019, preferred by the complainant, namely, 'MK' is concerned, same is held to be not maintainable in so far as the prayer for enhancement of the sentence awarded to the accused persons is concerned in view of the provisions under Section 372 Cr.P.C. Nonetheless, considering that the victim in the instant case was minor at the relevant point in time and the travails suffered by the victim as well as her family members, this Court deems it further appropriate to refer the present matter to the Ld. Secretary, DLSA, in terms of the provisions under Section 357A Cr.P.C./Section 396 BNSS, with the request to provide adequate compensation to the victims in accordance with the Delhi Victim Compensation Scheme, 2018, in addition to the fine amount/compensation as specified herein.
51. Accordingly, Crl. Appeal No. 340/2019 and Crl. Appeal No. 347/2019 are disposed of in above terms.
52. Trial Court Record be sent back along with a copy of this judgment with direction to proceed as per law. Copy of this order/judgment be also given dasti to the accused persons. Further, compliance of the decision of the Hon'ble Supreme Court in Suhas Chakma v. Union of India (UOI) & Ors., MANU/SC/1147/2024 has been carried out.
53. Appeal file be consigned to record room after due compliance. Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.04.29 15:45:04 +0530 Announced in the open Court (Abhishek Goyal) on 29.04.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi CA No. 340/2019 Govinda & Anr. v. State & Anr. CA No. 347/2019 Shri. 'MK' v. State & Ors. Page No. 70 of 70