Delhi District Court
Pankaj Gupta vs The State on 28 July, 2023
IN THE COURT OF SHRI SUNIL GUPTA
ADDITIONAL SESSIONS JUDGE-6, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 69/2019 (RBT 87/22)
IN THE MATTER OF:
Pankaj Gupta
S/o Late Sh. Raj Kishor Gupta,
R/o H.No. 208, Block-D,
Dakshinpuri, Ambedkar Nagar,
New Delhi-110062.
............Appellant
Versus
The State
..........Respondent
Instituted on :20.02.2019
Reserved on : not reserved
Pronounced on : 28.07.2023
JUDGMENT
1. Vide this judgment, I shall dispose of Criminal Appeal U/s 374 Cr.P.C preferred on behalf of appellant Pankaj Gupta against the impugned judgment dated 07.12.2018 and order on sentence dated 23.01.2019 passed by Ld. MM- 03, Mahila Court, Saket in case FIR No. 768/2014, PS Safdarjung Enclave whereby the appellant herein was convicted for the offence U/s 354 IPC and Digitally CA No.69/2019 Pankaj Gupta Vs. State Page 1 / 9 signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.07.28 17:27:43 +0530 was sentenced to simple imprisonment for one year alongwith fine of Rs. 3,000/-. In default of payment of fine, he was to undergo simple imprisonment for period of 30 days.
2. Briefly stated the facts as per record are as under:-
A call was received by police officials at PS Safdarjung Enclave vide DD No. 30A, dated 18.09.2014 regarding appellant having outraged the modesty of the complainant 'R'. On receiving the said call, police officials went to the spot i.e., Geetanjali Salon, S-13, Green Park, New Delhi whereupon complainant gave them a complaint in writing. As per the same, she had gone to the Salon to avail the services of hair spa. During hair spa, the appellant put his hand inside her bra and touched her breast. She created hue and cry whereupon Salon was offering free services in exchange. On receiving the said complaint, FIR No. 768 was lodged on same day at PS Safdarjung Enclave U/s 354 IPC. After completion of investigation, charge-sheet was filed against the appellant for the offence U/s 354/354A IPC before Ld. Magistrate on 05.08.2015. The appellant was summoned as an accused on same day for 17.08.2015. Charge for the offence U/s 354 IPC and in the alternative u/s 354A (1)(i) IPC was framed against him vide order dated 13.10.2015 to which he pleaded not guilty and claimed trial. The appellant admitted the factum of registration of FIR and factum of recording of statement of complainant U/s 164 Cr.P.C. during trial. Accordingly, the witnesses pertaining thereto were not examined.
3. The prosecution examined four witnesses to prove its case:-
3.1 PW-1 is the complainant 'R'. She is the victim/sole witness of the incident in question. Her testimony shall be discussed in detail later on.
Digitally signed by SUNIL CA No.69/2019 Pankaj Gupta Vs. State Page 2 / 9 SUNIL GUPTA GUPTA Date:
2023.07.28 17:27:54 +0530 3.2 PW-2 is SI Rajneesh. He is the first IO. He deposed about the steps taken by him during investigation. He has proved the rukka as Ex.PW2/A, site plan prepared at the instance of complainant as Ex.PW2/B and pabandinama of the appellant as Ex.PW2/C. He was duly cross-examined by Ld. Defence Counsel.
3.3 PW-3 is SI Vijender Singh. He is the second IO of the case. He has merely filed the charge-sheet after removal of objections raised by the Prosecution Branch. He was also duly cross examined by Ld. Defence Counsel.
3.4 PW-4 is Mr. Prem Israni. He is owner of the Geetanjali Salon wherein the alleged incident took place. He deposed about the employment of appellant in his Salon since last around 2 years from the date of issuance of letter Ex.PW4/A bearing the signatures of his accountant. He was not cross examined by defence.
4. After completion of prosecution evidence, statement U/s 313/281 Cr.P.C.
of the appellant was recorded wherein he stated that the complainant has falsely implicated him in the present matter. He gave the possible reason thereof as she might not be interested in paying the complete amount of services availed by her. No witness was examined by appellant in his defence.
5. After hearing the arguments from both the sides and considering the material on record, Ld. Magistrate convicted the appellant for the offence U/s 354 IPC and acquitted him for the offence U/s 354(A)(1)(i) IPC. He was sentenced accordingly for the offence U/s 354 IPC vide order dated 23.01.2019. Said judgment alongwith order on sentence is being challenged in these proceedings.
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2023.07.28 17:28:07 +0530
6. Arguments heard.
7. It has been argued by Ld. Counsel for accused/appellant that Ld. Trial Court has wrongly convicted him and that the material on record was not sufficient for this purpose. It has been argued that Ld. Magistrate has failed to appreciate the statement of PW-4 to the effect that the appellant was a well behaved boy and he never received even a single complaint against him. It has been further argued that no such offence as alleged has ever taken place and that he has been convicted by Ld. Trial Court merely on the basis of sole testimony of the prosecutrix. It has been argued that there was no independent public witness to the alleged incident. It was further argued that Ld. Magistrate has failed to appreciate the statement of appellant U/s 313 Cr.P.C. in correct perspective. Prayer has been made for setting-aside the impugned judgment and for acquittal of the appellant.
8. Per contra, Ld. Addl. PP for State has submitted that there is no illegality in the impugned judgment. It has been submitted that the material on record was sufficient to justify the conviction of the appellant for the offence U/s 354 IPC.
He has prayed for dismissal of the appeal.
9. I have considered the submissions from both the sides alongwith record.
10. The appellant herein has been convicted for the offence U/s 354 IPC vide judgment dated 07.12.2018 of Ld. Magistrate. Section 354 IPC provides as under:-
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 CA No.69/2019 Pankaj Gupta Vs. State Page 4 / 9 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.07.28 17:28:21 +0530 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.]
11. Present case was registered on the basis of written complaint given by the complainant Ms. 'R'. She was examined as PW-1 before Ld. Trial Court. Her testimony being material for decision on this appeal is being reproduced below:-
" I do not exactly remember the date of incident, but I do remember that it was afternoon and there was fire at my Restaurant and there was no much work for me there, therefore, I went for Hair Spa at Geetanjali Salon, Green Park. The usual hair dresser who used to deal with me was not present, therefore, I was provided other hair dresser i.e., accused present in the court. (At this stage, witness points towards the accused. Witness has correctly identified the accused). While he was giving me hair spa he grabbed my breast. I created a hue and cry. The salon owner came over and inquired. I informed him regarding the act of the accused. The accused kept on denying the allegation. The accused said that there was a camera and whatever that had happened would have been recorded in the same. But actually there was no camera. The salon owner persuaded me not to file an FIR but had called the police by them. My husband also reached there as I had informed my husband through mobile.
The next day the family members of the accused approached me at my restaurant and tried to persuade me to not to initiate any action against the accused. I do not know how they got the address of my workplace.
At this stage, Ld. APP for the State has sought permission to cross examine the witness as Digitally CA No.69/2019 Pankaj Gupta Vs. State Page 5 / 9 signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.07.28 17:28:45 +0530 she is not completely supporting the case of prosecution.
XXXXXX by Ld. APP for State.
It is correct that complaint dated 18.09.2014 was filed by me which bears my signature at point A. The same is Ex.PW1/A. It is correct that the date of incident is 18.09.2014. It is correct that in my complaint Ex.PW1/A I have mentioned that the accused put his hand inside my bra and touched my breast. Again said, I cannot surely comment about the fact that what is written in my complaint because my complaint was taken by a male police officer. It is correct that the salon owner had offered me free service on the pretext that I should not report matter to police correct that I got my statement recorded before Ld. Magistrate on 22.09.2014. It is correct that the incident had took place at around 01:30 pm. It is correct that police had also recorded my statement. Again said I do not remember. The site plan was prepared in my presence."
12. Perusal of aforementioned testimony of the complainant 'R' shows that she has clearly stated about her breast having been grabbed by the appellant while he was giving her hair spa. In her initial complaint given to police (Ex.PW1/A) and in her statement u/s 164 Cr.P.C. recorded before Ld. Magistrate on 22.09.2014 (Ex.P-2), she had stated that the appellant has put his hand inside her bra and pressed her breast. In her cross-examination by Ld. APP for State (with the permission of the Court as she has not deposed about complete facts), she initially stated that it was correct that in her complaint Ex.PW1/A, she has mentioned that the accused put his hand inside her bra and touched her breast. She volunteered to say that she cannot surely comment about the fact as to what is written in her complaint because same was taken by a male police officer. At first glance, there seems to be a slight contradiction regarding the manner in CA No.69/2019 Pankaj Gupta Vs. State Page 6 / 9 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.07.28 17:28:58 +0530 which offence in question was committed, however on careful perusal of both the versions, it is clear that there is no such contradiction and that the essence of offence in both the versions is same i.e. touching of breast of the complainant 'R' by the appellant while giving her hair spa. Doing that from inside the bra of the complainant or from outside her clothes will not make any difference to the nature of offence. So, said variation can be easily ignored while appreciating the testimony of the complainant.
13. Nothing material has come in the detailed cross-examination done by Ld. Defence Counsel which could have created doubt in the case of prosecution. Although, the appellant in his statement u/s 313 Cr.P.C. before Ld. Trial Court raised a defence that he might have been falsely implicated as the complainant was not interested in paying the complete amount of services, however it is to be noted that no such thing was put to the complainant in her cross-examination. Not even a suggestion to the effect that she had falsely implicated the appellant due to this reason, was given to her. In these circumstances, merely because a vague defence was raised by the appellant for the first time in his statement u/s 313 Cr.P.C., he could not have been acquitted on that basis more so when there was nothing else on record to show that the defence raised was even probable in the given facts.
14. One of the grounds taken by the appellant for assailing the impugned judgment is that no independent person was joined in the investigation and that he was convicted on the basis of sole testimony of the complainant. Admittedly, complainant 'R' is the only material witness examined by the prosecution to prove its case. However, it is to be noted that there is no law mandating that an offence can be proved only by the testimony of an independent public witness. Section 134 Indian Evidence Act is material here, which provides as under:-
CA No.69/2019 Pankaj Gupta Vs. State Page 7 / 9 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.07.28 17:29:17 +0530 "134. Number of witnesses- No particular number of witnesses shall in any case be required for the proof of any fact."
15. So, it is clear from the above that it is the quality and not quantity of witnesses which is material for proving a case. The testimony of complainant has remained unshaken throughout her cross-examination. In these facts, absence of any independent public witness is of no consequence.
16. Another ground taken by defence is that Ld. Trial Court did not consider the testimony of PW-4 regarding previous good conduct of the appellant. PW-4 Mr. Prem Israni was the owner of Salon where the incident in question took place. He volunteered to say in his testimony dated 24.05.2017 that the appellant was a well behaved boy and that he had never received any complaint against him apart from the present matter. Section 53 of Indian Evidence Act, 1872 provides that in criminal proceedings, the fact that the accused is of a good character is relevant, however that does not mean that such an accused can be acquitted only on the basis of previous good character when there is clear evidence against him in the form of clinching testimony of the victim. So, the statement of PW-4 regarding good character of the appellant will not be of any help to him.
17. Lastly, it was argued that the appellant has been wrongly convicted for the offence u/s 354 IPC and that at the most, he could have been convicted for the offence u/s 354A(1)(i) IPC. Ld. Counsel did not elaborate upon further on this particular argument. In the given facts, the appellant has used criminal force as defined u/s 350 IPC to the complainant knowing it that he will outrage her modesty by doing that, so the offence u/s 354 IPC was clearly made out.
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18. Considering the above discussion, this Court is of the view that the prosecution has proved beyond reasonable doubt the ingredients of Section 354 IPC against appellant Pankaj Gupta. He has been rightly convicted for the said offence by Ld. Trial Court. The appeal stands dismissed as far as same pertains to his conviction.
19. Order on Sentence shall be passed after compliance as per the judgment of Hon'ble Delhi High Court in Karan Vs. State NCT of Delhi Crl. Appeal No. 352/2020. Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.07.28 17:29:59 +0530 Announced in the open (Sunil Gupta) Court on 28.07.2023 Additional Sessions Judge-06, South, Saket Courts, New Delhi CA No.69/2019 Pankaj Gupta Vs. State Page 9 / 9