Delhi District Court
Banti @ Toni vs State on 22 December, 2023
IN THE COURT OF SH. ABHISHEK GOYAL,
ADDITIONAL SESSIONS JUDGE-03, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLCT01-000610-2020
Criminal Appeal No. 23/2020
BANTI @ TONI,
S/o. Shri. Mangu Ram,
R/o. Quarter No. 106, Khyber Pass Mess,
Near Balmiki Mandir, Civil Lines,
Delhi. ... APPELLANT
Versus
STATE (GOVT. OF NCT OF DELHI) ... RESPONDENT
Date of Institution : 16.01.2020
Date when judgment was reserved : 16.12.2023
Date when judgment is pronounced : 22.12.2023
JUDGMENT
1. The appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter, referred to as 'Cr.P.C.') against the judgment dated 25.02.2019 (hereinafter referred to as 'impugned judgment'), convicting the appellant for the offences punishable under Sections 354/354A(1)
(i)/323/456 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC'), passed by the learned Metropolitan Magistrate/ Ld. MM (Mahila Court)-02 (Central), Tis Hazari Courts, Delhi ('Trial Court/MM Court' for short) in case bearing "State v. Banti @ Toni, Cr. Case No. 8412/2013", arising out of FIR No. 69/2013, PS. Civil Lines and the consequent order of sentence C.A. No. 23/2020 Banti @ Toni v. State Page 1 of 43 dated 16.12.2019 (hereinafter referred to as 'impugned order'), passed by the learned Trial Court, awarding the appellant; rigorous imprisonment for a period of one year along with fine of Rs. 6,000/- for the offence under Section 354 IPC; rigorous imprisonment for a period of one year along with fine of Rs. 2,000/- for the offence under Section 354A IPC; rigorous imprisonment for a period of six months and fine of Rs. 500/- for the offence under Section 323 IPC; and rigorous imprisonment for a period of one year and fine of Rs. 2,000/- for the offence under Section 456 IPC (hereinafter impugned judgment and impugned order are collectively referred to as the 'impugned judgment and order'). Pertinently, out of the aforesaid fine amount, the appellant was further directed to deposit a sum of Rs. 3,500/- as fine in the Court and the remaining fine amount of Rs. 7,000/-, was directed to be paid as compensation by the appellant to the victim, Smt. 'R' (identity withheld 1, hereinafter referred to as the 'victim/complainant/prosecutrix'), directly. Needless to mention, in default of payment of said amount, appellant was further directed to undergo simple imprisonment for a period of 10 days.
2. Pithily put, the case of the prosecution against the appellant is that on 18.03.2013 at around 11:30 p.m. to 12 midnight, the appellant entered the victim's/prosecutrix's premise bearing; House No. 104, Khayber Pass Mess, Near Balmiki Mandir, Civil Lines, Delhi (hereinafter also referred to as the 1 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 C.A. No. 23/2020 Banti @ Toni v. State Page 2 of 43 'spot/place of incident/incident spot'), after breaking the grill of the said house/premise and outraged the modesty of the complainant/victim/prosecutrix, Smt. 'R'. It is further alleged against the appellant that the appellant caught hold of the neck of the complainant/victim, shut her mouth, and also pushed her, thereby, committed the offences punishable under Sections 323/354/354A/455 IPC. Appositely, on the basis of the complaint of the victim/complainant, the instant FIR was got registered and upon the investigation that ensued, chargesheet was filed by the concerned investigating officer before the Ld. Trial Court for the said offences. Notably, consequent upon Ld. Trial Court's taking cognizance of the offence on 19.07.2013, charges under Sections 323/455/354/354A IPC were framed against the appellant on 21.11.2013 and the trial commenced. During the course of trial, prosecution examined eight witnesses. However, as per the appellant, some of the material witnesses could not be cross- examined before the Ld. Trial Court due to inadvertent omission(s)/unavoidable circumstances. Nevertheless, the appellant produced his mother as well as himself as defence witness (DW1 and DW2, respectively) and the arguments were addressed on behalf of the appellant as well as State before the Ld. Trial Court. Consequently, as aforementioned, the Ld. Trial Court vide impugned judgment and order, while holding the appellant guilty of the offences punishable under Sections 354/354A(1)(i)/323/456 IPC, sentenced him in the manner, as noted hereinabove.
C.A. No. 23/2020 Banti @ Toni v. State Page 3 of 433. Learned Legal Aid Counsel/ Ld. Counsel for the appellant outrightly 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 setting aside at the outset, as suffering with gross illegality. In this regard, Ld. Counsel further submitted that the impugned judgment and order were passed by the Ld. Trial Court on mere assumptions and that no sound and cogent reasons have been assigned under the impugned judgment and order. Ld. Counsel further submitted that while passing the impugned judgment and order, the Ld. Trial Court failed to appreciate that there are contradictions in the complaint of the complainant, i.e., the tehrir and her statement, recorded in terms of the provisions under Section 164 Cr.P.C., belying the case of the prosecution. Even otherwise, as per the Ld. Counsel, the factum of delay of lodging of FIR in the instant case, of around 13 (thirteen) hours, was not considered by the Ld. Trial Court while passing the impugned judgment. In this regard, Ld. Counsel further submitted that the incident in question allegedly occurred at around 12.00 at night, however, the complainant made no call at 100 number at that point in time and subsequently, got registered/lodged the FIR in question after a delay of around 13 (thirteen) hours. Without prejudice to the same, Ld. Counsel for the appellant further contended that the Ld. Trial Court, while passing the impugned judgment and order, failed to appreciate the defence of the appellant. In this regard, it was vehemently C.A. No. 23/2020 Banti @ Toni v. State Page 4 of 43 argued that the at the relevant point in time, the appellant was not present at his house and was, instead, present at his sister' house, which fact was duly proved by DW-1, mother of the appellant. However, despite the same, it was contended that the said facts were not considered by the Ld. Trial Court. Even otherwise, as per the Ld. Counsel, the Ld. Trial Court failed to appreciate that the appellant has been falsely implicated in the present case due to previous enmity between the complainant and the appellant's family, besides failed to consider that the prosecution has been unable to prove its case, 'beyond reasonable doubt' against the appellant. In support of the said contentions, reliance was placed by the Ld. Counsel for the appellant upon the decisions in Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 and Banamali Mohanta v. State of Orissa, 2017 SCC OnLine Ori 170.
4. Learned Counsel further submitted that the previously engaged counsel for the appellant/ Ld. Legal Aid Counsel representing the appellant before the Ld. Trial Court took the instant matter quite lightly/casually and due to the said reason, material prosecution witnesses, being; PW-1, PW-2, PW- 3, PW-4 and PW-6 could not be cross-examined and the decision/ judgment and order on sentence was rendered by the Ld. Trial Court, hastily, as well as to the gross prejudice of the appellant. In this regard, Ld. Counsel further submitted that the Ld. Trial Court, while passing the impugned judgment and order, failed to appreciate the settled law that a criminal case cannot/should not be decided against an accused in the absence of a counsel, as held C.A. No. 23/2020 Banti @ Toni v. State Page 5 of 43 in the decision in Mohd. Sukur Ali v. State of Assam, (2011) 4 SCC 729 and several other dictates. Further, as per the Ld. Counsel for the appellant, the Ld. Trial Court also ignored the guidelines of the Hon'ble Supreme Court in Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012) 2 SCC 584, while passing the impugned judgment and order, pertaining to the accused's inviolable right to cross-examine prosecution witnesses. Accordingly, Ld. Counsel submitted that not only did the Ld. Trial Court failed 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 the appellant guilty of the aforementioned offences. Consequently, the Ld. Counsel inter alia prayed that the present appeal be allowed, and the impugned judgment and order be set aside. In the alternate, Ld. Counsel for the appellant submitted that the appellant 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').
5. Per contra, Ld. Addl. PP for the State submitted that the impugned judgment and order was 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. Ld. Addl. PP for the State further submitted that the testimony of the prosecutrix has not only been consistent, rather, of sterling quality, lucidly pointing out towards the only inference of guilt of C.A. No. 23/2020 Banti @ Toni v. State Page 6 of 43 the appellant. Further, as per the Ld. Addl. PP for the State there has been no delay in lodging the instant FIR by/at the behest of the complainant/victim/prosecutrix and if at all, the same stands duly explained and corroborated with/by the testimony of the other witnesses/evidence, brought on record. It was further submitted by the Ld. Addl. PP for the State that the appellant has even failed to prove its defence before the Ld. Trial Court by adducing independent and uninterested witnesses. Concomitantly, it was submitted by the Ld. Addl. PP for the State that the contention of/on behalf of the appellant regarding the accused being prejudiced for not being afforded an opportunity to cross-examine the prosecution witnesses no longer holds ground, in view of the order dated 24.08.2023 of the Ld. Predecessor Judge, allowing the appellant's application under Section 391 Cr.P.C. Lastly, 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 appellant is made out by the appellant, besides considering the gravity of offence involved, the appellant is 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.
6. The arguments of learned Legal Aid Counsel/Ld. Counsel for the appellant as well as that of Ld. Addl. PP for the State have been heard and the record(s), including the Trial Court Record, thoroughly perused.
C.A. No. 23/2020 Banti @ Toni v. State Page 7 of 437. Before proceeding further with the determination on the merits of the present appeal, this Court deems it pertinent to outrightly consider the submission raised by the Ld. Counsel for the appellant pertaining to the alleged prejudice caused to the appellant for the want of cross-examination of PW1, PW2, PW3, PW4 and PW6, by/at the behest of the appellant before the Ld. Trial Court. In order to appreciate the said contention, it would be apposite to note at the outset that during the course of proceedings before the Ld. Trial Court, an application under Section 311 Cr.P.C. was moved by/on behalf of the appellant, seeking cross-examination of PW1, PW3, PW4, PW5 and PW6. Notably, the said application was disposed of the learned MM-02 vide order dated 24.11.2016 inter alia under the following observations;
"...An application u/s 311 Cr.PC for recalling PW1 Ms. [R], PW3 Subhash, PW4 Vineets, PW5 Ct. Mahavir and PW6 Dr. Najahat Praveen for cross examination filed on behalf of accused on 05.11.2016 is pending consideration. Copy supplied to the State. Heard. Perused. PW1 Smt [R] was examined in chief on 11.04.2014. However, on the next date, i.e., 19.07.2014, counsel for accused was not available and her cross examination was recorded as "Nil. Opportunity given." PW3 Sh. Subhash and PW4 Ct. Vineeta were examined in chief on 02.12.2014 and their cross examination was recorded as "Nil. Opportunity given" on the same day as counsel for accused was not available despite Passovers. PW Ct. Mahavir was examined in chief on 13.02.2015 and his cross examination was deferred till 17.04.2015 at request of the accused. He was discharged unexamined on 17.04.2015. Though legal aid counsel Sh. Deepak Kumar had filed his letter of appointment on 17.04.2015 itself, accused again sought adjournment for cross examination of PW5 on 17.08.2015 for want of his counsel. Vide order C.A. No. 23/2020 Banti @ Toni v. State Page 8 of 43 dated 17.08.2015 passed by Ld. Predecessor of this court, cross examination of PW5 was recorded as "Nil. Opportunity given". PW6 Dr Najahat Praveen was examined, cross examined and discharged on 05.02.2016. Though his cross examination has been recorded as "Nil. Opportunity given", perusal of order sheet dated 05.02.2016 reveals that the accused was represented by Legal aid counsel Sh. Deepak Kumar on the said day. In view of the aforesaid, no ground is made out for recalling PW5 Ct. Mahavir and PW6 Dr. Najahat Praveen as the accused was represented by Legal Aid Counsel. However, in the interest of justice, it is deemed appropriate to grant one more opportunity to accused cross examine PW1 Ms. [R], PW3 Sh. Subhash and PW4 Ct. Vineeta. It is impressed upon the accused that only one opportunity shall be given for cross examination of PW1, PW3 and PW4. Application is disposed off accordingly.
List for prosecution evidence on 21.02.2017.
PW1 Ms. [R] be recalled for cross examination for the next date of hearing..."
(Emphasis supplied)
8. Markedly, pursuant to the aforesaid order, PW1/complainant/victim, Smt. 'R' was recalled for her cross- examination before the Ld. Trial Court on 21.02.2017 and 02.05.2017, however, on both occasions, she could not be cross- examined by/on behalf of the appellant. Pertinent to further observe, in fact, on 02.05.2017, the reason for non-conducting of PW1's/complainant's/victim's cross examination was attributed to the reason of appellant's absence before the Ld. Trial Court on the said date as well as for the reason that the (then) Ld. Legal Aid Counsel for the appellant affirmed before the Ld. Trial Court that he was not, "in a position to cross examine the witness today as he has to attend a wedding ceremony in Hapur..."
C.A. No. 23/2020 Banti @ Toni v. State Page 9 of 43Accordingly, considering the reluctance expressed by the (then) Ld. Legal Aid Counsel for the appellant, PW1's cross- examination was again recorded as "Nil. (Opportunity Given)"
by the Ld. Trial Court on the said date. However, it is pertinent to observe that from a perusal of the Ld. Trial Court's record, it is explicitly noted that PW3 and PW 4 were cross-examined by/on behalf of the appellant on 04.08.2017 and 17.11.2017, respectively. Here, it is further apposite to note that the appellant had moved another application before the Ld. Trial Court for recalling the complainant/victim for cross-examination, which was dismissed/disposed of by the ld. Trial Court vide order dated 22.03.2018, inter alia, noting as under;
"... An application is filed on behalf of the accused under Section 311 Cr. PC. For recalling PW1 Smt R. on the ground that accused could not appear on the day when the matter was fixed for cross examination of the said witness and Ld. Legal Aid Counsel for accused had to attend a marriage at Hapur, U.P. Application perused. Submission heard. Perusal of record reveals that vide order dated 02.05.2017, Ld. Predecessor of this Court had observed that the application filed under Section 311 Cr. PC. was allowed vide order dated 24.11.2016, and only one opportunity was granted to cross examined PW1, however, further, LD. Predecessor of this court observed no ground was made out for adjournment or another opportunity and cross examination of PW1 Smt R. was recorded "Nil. (Opportunity given)". In view of the fact that several opportunities gave been given to the accused, no ground is made out for grant of any further opportunity for the purpose of cross examination of PW1 Ms. R. Application stands disposed off accordingly..."
(Emphasis supplied)
9. Clearly, it is perceived from the above, the alleged C.A. No. 23/2020 Banti @ Toni v. State Page 10 of 43 omission of cross examination of PW3 and PW4 stood rectified when the said witnesses were cross-examined by/on behalf of the appellant before the Ld. Trial Court on 04.08.2017 and 17.11.2017, respectively. Concomitantly, it is evidently observed from a perusal of the Ld. Trial Court's record that the opportunity to cross examine PW5 and PW 6 was consciously/willfully not availed of by the appellant and declined as "Nil. Opportunity given.", in the presence of the appellant as well as the (then) Ld. Legal Aid Counsel for the appellant before the Ld. Trial Court. Without prejudice to the same, the Ld. Counsel for the appellant moved an application under Section 391 Cr.P.C. before the Ld. Predecessor Judge, seeking permission to adduce additional evidence/recall witnesses for cross examination, which was allowed by the Ld. Predecessor Judge vide order dated 24.08.2023 inter alia noting as under;
"Ld. Counsel for the appellant confined his prayer to recalling of PW1 for cross examination. In exercise of powers under Section 391 Cr.P.C. in order to ensure fair trial and due opportunity to defend the case, PW1 be summoned for 31.08.2023..."
(Emphasis supplied)
10. Relevantly, it is observed from above, while on one hand, the Ld. Counsel for the appellant restricted his prayer before the Ld. Predecessor Judge only to the extent of seeking permission to cross-examine PW1, on the other hand, in furtherance to the liberty granted by the Ld. Predecessor Judge, PW1 Smt. 'R' was duly cross-examined by/on behalf of the appellant on 18.09.2023. Consequently, the objection of the Ld. C.A. No. 23/2020 Banti @ Toni v. State Page 11 of 43 Counsel for the appellant pertaining to the appellant being prejudiced for want of cross examination of PW1, PW2, PW3, PW4 and PW6, no longer holds ground, in light of the aforesaid observation and the same stands outrightly rejected by this Court. Needless to reiterate while PW3 and PW 4 were cross-examined by/on behalf of the appellant on 04.08.2017 and 17.11.2017, respectively, cross examination of PW5 and PW6 was consciously/willfully not availed of and declined as "Nil. Opportunity given.", in the presence of the appellant as well as the (then) Ld. Legal Aid Counsel for the appellant before the ld. Trial Court. Further, with the restriction of the Ld. Counsel for the appellant's prayer for further cross examination of PW1 alone before the Ld. Predecessor Judge, which was duly conceded to vide order dated 24.08.2023 and the said witness cross-examined on behalf of the appellant before this Court on 18.09.2023, there is no reason/justifiable ground with the appellant to plead prejudice on this ground/count anymore. Concurrently, in light of the foregoing facts and circumstances, the judgments relied upon by the Ld. Counsel for the appellant in this regard would not come to any aid or rescue of the appellant, in the manner as sought to be relied upon by the Ld. Counsel, further considering the defect/omission, if any, has been duly rectified at present.
11. Another ground of challenge of the impugned judgment and order by/on behalf of the appellant pertains to alleged contractions in the testimony of the victim/complainant in her complaint vis-à-vis her statement under Section 164 C.A. No. 23/2020 Banti @ Toni v. State Page 12 of 43 Cr.P.C., which fact has not been (allegedly) considered by the Ld. Trial Court. In this regard, it has been vehemently contented by the Ld. Counsel for the appellant that there are material contractions in the statements made by the victim complainant in her complaint and that in her testimony/statement under Section 164 Cr.P.C. In fact, as per the Ld. Counsel, the prosecutrix/complainant, in her complaint, before the police officials had specifically averred that on 18.03.2013 at around 11:30 p.m., the appellant entered the victim's premise after cutting the wire mesh (jaali) of the window of the said premise. Further, the appellant was standing close to the victim's cot and was attempting to lay over her and as the victim raised an alarm, the appellant tried to shut her mouth. Thereafter, when the victim escaped from the clutches of the appellant and rushed towards door to open the latch thereof, the appellant pushed and shoved her off the cot. Consequently, on hearing the victim/complainant, her neighbors gathered and knocked at her door, upon which the appellant escaped from the route of the window mesh (jaali), which he had broken to make an ingress into the victim's premise. However, Ld. Counsel contended that the victim, in her statement under Section 164 Cr.P.C. did not mention about the factum of appellant's attempt to lay over her on the cot, rather, merely deposed that the appellant held the victim's neck from behind and shut her mouth on the said date. Further, as per the Ld. Counsel there are contradictions pertaining to the identity of the person, who had made call to the police on the said date. In C.A. No. 23/2020 Banti @ Toni v. State Page 13 of 43 this regard, Ld. Counsel submitted that while the complainant/victim in her aforesaid complaint, specified that someone made a call to police on the said date, however, in her statement under Section 164 Cr.P.C, the complainant/victim asserted that such call was made by her in-laws (jeth-devar). Accordingly, Ld. Counsel contended that had the said factors been duly considered and appreciated by the Ld. Trial Court, appellant's conviction would not have ensued.
12. Significantly, in order to unerringly appreciate the aforesaid contentions raised by the Ld. Counsel for the appellant, it would be pertinent to iterate and 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 C.A. No. 23/2020 Banti @ Toni v. State Page 14 of 43 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. Cross-examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible."
(Emphasis supplied)
13. Similarly, in this regard, the Hon'ble Apex Court in Rammi v. State of M.P., (1999) 8 SCC 649, noted 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) C.A. No. 23/2020 Banti @ Toni v. State Page 15 of 43
14. Evidently, from the conspectus of the above, it may be clearly 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 law2, 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 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 2 Appabhai v. State of Gujarat, 1988 Supp SCC 241 C.A. No. 23/2020 Banti @ Toni v. State Page 16 of 43 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)
15. Ergo, to recapitulate, in order to disregard 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 to 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. Consequently, when the testimony of the victim/prosecutrix in the instant case is analyzed, mindful of aforenoted revered principles, this Court finds itself difficult to be convinced with the contention of the Ld. Counsel for the appellant that the complainant's/victim's testimony is unreliable and worthy of rejection. In fact, in this regard, this Court further unambiguously observes that the prosecutrix/victim/complainant in her deposition before the Ld. Trial Court reiterated the entire incident, as stated by her in her complaint, inter alia to the effect that on 18.03.2013 at around 11:30 pm, when the complainant was sleeping in her room, the appellant (who was correctly C.A. No. 23/2020 Banti @ Toni v. State Page 17 of 43 identified by the complainant/victim before the Ld. Trial Court), entered her room and he kept his hand on her mouth and tried to lay upon her. Further, the appellant was deposed to have misbehaved with the complainant/victim and caused injury on her neck. The complainant, thereafter, raised an alarm, upon which the appellant fled from the spot through the wire mesh (jaali), which was cut by him. In her said deposition, the complainant/victim further affirmed the factum of police reaching the spot of incident and the complainant/victim getting her statement recorded at the police station on the following morning, only upon her parents reaching her home.
16. Undoubtedly, there appear to be some omissions in the statement of the complainant in her complaint and deposition before the Ld. Trial Court on one hand and her statement under Section 164 Cr.P.C, on the other in so far as they relate to the complainant not mentioning the factum of appellant's attempt to lay over her or the identity of the person who made a call to the police authorities on the date of incident. However, the said variations cannot, by any stretch of imagination, be termed as material or gross, so as to discredit the otherwise cogent and consistent stand of the prosecutrix/victim/complainant in so far as it relates to the presence of the appellant at her home at around 11:30 p.m. on 18.03.2013, i.e., the date of incident; the appellant grabbing her neck and holding her mouth on the said date; the victim/complainant raising a hue and cry and gathering of her neighbors upon hearing the said voice/cry; police reaching the C.A. No. 23/2020 Banti @ Toni v. State Page 18 of 43 scene of incident, upon being informed of the incident; and the complainant/victim getting her complaint/statement recorded before the concerned police officials on the day, following the incident upon her parents reaching her home. In fact, the said material particulars have even withstood the test of cross examination, conducted by/at the behest of the appellant before this Court on 18.09.2023. Needless to mention, the victim/complainant was not even confronted in her said cross examination, regarding the 'so called omissions/contradictions' pertaining to her non-specification of the factum of appellant's attempt to lay over her in her statement under Section 164 Cr.P.C. Concomitantly, no suggestion concerning the same was even put to her in the said cross examination dated 18.09.2023, before this Court.
17. Without prejudice to the foregoing, in so far as emphasis of the Ld. Counsel for the appellant pertaining to the victim's/complaint's inability to recount to particular of the person who made a call to the police official on the date of incident (in order to belie her testimony) is concerned, this Court unswerving observes that the said omission is not material so as to erode the otherwise consistent case of the prosecution. The same is especially so for the reason that the courts have persistently avowed that a witness cannot be expected to possess a photographic memory and/or to recall even the minutest details of an incident. In fact, in this regard, the Hon'ble Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 C.A. No. 23/2020 Banti @ Toni v. State Page 19 of 43 SCC 217, while appreciating the patent reasons leading to minor discrepancy(ies) in the statement of witness(es) affirmed as under;
"5. ... We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned Counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious:
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not.
An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
C.A. No. 23/2020 Banti @ Toni v. State Page 20 of 43(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -- Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
(Emphasis supplied)
18. Convincingly, in light of the aforesaid and further being cognizant of the fact that the incident in question pertains inter alia to outraging the modesty of woman at around middle of the night, where the victim was subjected to criminal force, assault and hurt, it is quite logical that the victim/complainant may not remember the each and every particular of events and that too in chronology. Undeniably, the complainant cannot be expected to remember each and every minutest detail of the incident which had transpired on the fateful night. Correspondingly, the victim's omission to specify the factum of appellant's attempting to lay on her on the date of incident in her statement under Section 164 Cr.P.C. does not, in the opinion of this Court, sufficient to discredit her testimony for the reason, as aforenoted that the victim/prosecutrix has been consistent inter alia regarding the appellant's presence at her home on 18.03.2013 at around 11:30 p.m., i.e., on the date of incident; the appellant grabbing her neck and holding her mouth on the said date as well as the consequential infliction of hurt/injuries to the C.A. No. 23/2020 Banti @ Toni v. State Page 21 of 43 complainant. Needless to reiterate that the said fact finds mention in the complainant's complaint before the police authorities as well as the Ld. Trial Court. Here it is further apposite to note that even otherwise, in the absence of proof of appellant's attempt to lay over the complainant on the date of incident, the offences under Sections 354/354A IPC, nevertheless, stand established against the appellant herein. In this regard, it is pertinent to make reference to the decision of the Hon'ble High Court of Bombay in Parmeshwar v. State of Maharashtra, 2021 SCC OnLine Bom 6144, wherein the Hon'ble Court held that touching any part of the body of a woman without her consent that too in the dead hour of the night by a stranger, amounts to violation of modesty of a woman. In fact, in the said decision, the Hon'ble Court while upholding conviction of the accused therein for the offence under 451/354 IPC, inter alia, affirmed as under;
"10. When this test is applied to the facts of the instant case, it is clear that the act of the applicant was capable of shocking sense decency of any woman. In the case at hand, applicant was sitting at the feet of the victim and had touched her feet and was sitting on her cot. This behaviour smacks of sexual intent. Otherwise, there was no reason for the applicant to be in the house of the victim at such an odd hour of the night. When a query was put to the learned counsel Shri Bhosle as to why the applicant was present in the house of the informant/victim at dead hours of the night, he could not give any answer much less any satisfactory answer. Moreover, touching any part of the body of a woman without her consent that too in the dead hour of the night by a stranger amounts to violation of modesty of a woman. The applicant did not enter the house of the victim with any sublime motive. He had ensured in the evening C.A. No. 23/2020 Banti @ Toni v. State Page 22 of 43 from the victim that her husband would not be present in the house in the night. Therefore, the applicant ventured to enter the house. This clearly indicates that the applicant had gone there with sexual intent and violated the modesty of the informant. Therefore, learned Trial Court did not commit any error in holding that the applicant had molested the victim/informant."
(Emphasis supplied)
19. Evidently from above, the only conclusion which this Court can unreservedly reach in the instant case is that not only is the statement of the victim/complainant consistent in material particulars, rather, the same unambiguously points towards the guilt of the appellant herein. Needless to reiterate that the testimony of the prosecutrix has been unfailing on material particulars of the offences with which the appellant has been convicted with, right from the inception of the present proceeding, till its culmination before the Ld. Trial Court. It is not only natural and reliable, rather, devoid of any prevarication. Further, as aforenoted, the complainant/victim has withstood lengthy and strenuous cross-examination conducted by/at the behest of the appellant before this Court on 18.09.2023, bereft of any discrepancy or inconsistency as to the factum of the occurrence, the persons involved, as well as the sequence of it. Unmistakably3, under such circumstances, the testimony of the prosecutrix/complaint can intelligibly be termed as 'sterling' in its quality. Nonetheless, the version presented by the prosecutrix/victim also finds credence to some extent also from 3 Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, Naresh v. State of Haryana, (2023) 10 SCC 134 and Phool Singh v. State of M.P., (2022) 2 SCC 74 C.A. No. 23/2020 Banti @ Toni v. State Page 23 of 43 the testimony of PW3, Sh. Subhash and PW8 SI (Retd.) Ramesh Kumar, who in their respective testimonies before the Ld. Trial Court deposed regarding the prosecutrix informing them about the incident in question, in particular about the appellant entering her house at the dead of night on 18.03.2013 with bad intentions. Apposite to note here that, though, this Court is conscious of the fact that both the said witnesses are not primary/direct evidence to the incident in question (and are hearsay witnesses thereto), however, considering the proximity in time and consistency in the statements by them, their statements are relevant in terms of the provisions under Sections 6 and 8 of the Indian Evidence Act, 1872, as res gestae and conduct of the complainant/victim (any person an offence against whom is the subject of any proceeding), influenced by any fact in issue or relevant fact, respectively.
20. At this stage, this Court deems it incumbent to deal with the contention of the Ld. Counsel for the appellant inter alia to the effect that the testimony of the prosecutrix/compliant/victim cannot (and could not have) form(ed) the sole basis of conviction of the appellant. In this regard, it is imperative 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 inter alia to the following effect;
"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, C.A. No. 23/2020 Banti @ Toni v. State Page 24 of 43 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)
21. 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)
22. Palpably, it is observed from above that it is a settled law that conviction for an offence of sexual assault/rape can be based on the sole testimony of the prosecutrix. In fact, in the instances of sexual offences, courts have recurrently avowed4 that to seek corroboration to the testimony of the prosecutrix, before relying upon the same would amount to adding insult to injury sustained by such victim and have, consequently, deprecated the 4 State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and Munna v. State of M.P., (2014) 10 SCC 254 C.A. No. 23/2020 Banti @ Toni v. State Page 25 of 43 said practice. Unmistakably, the reasons for the same can be easily inferred from the decision of the Hon'ble Supreme Court 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 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) C.A. No. 23/2020 Banti @ Toni v. State Page 26 of 43
23. Concomitantly, this Court is cognizant of the fact that the instances of sexual offences usually occur in secrecy, out of public gaze and even in the instances where witnesses to such incidents exit, they may not be forthcoming in supporting the prosecution's case. Evidently, under such circumstances, to discard the sole testimony of a prosecutrix, consistent in material particulars and withstanding the rigors of cross-examination, would amount to causing gross prejudice and aggravating the plight of such victim/prosecutrix on one hand, while acting as impetus to 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. Unquestionably, 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 appellant pertaining to the lack of corroboration in the testimony of the victim/complainant in the instant case or that pertaining to the alleged contradictions in her statement, deserves to be indisputably rejected, in light of the foregoing discussion.
24. Apropos the foregoing discourse, it is pertinent here to deal with the contention of the Ld. Counsel for the appellant relating to the alleged delay in lodging the FIR by the C.A. No. 23/2020 Banti @ Toni v. State Page 27 of 43 complainant/victim in the instant case. As aforenoted, it is contended on behalf of the appellant that despite the present incident having taken place at around 11:30 p.m. on 18.03.2013 as per the prosecutrix, the FIR was got lodged by the complainant/victim only on the following morning/day, i.e., on 19.03.2013 at 12:20 p.m., after a delay of around 13 (thirteen) hours. In this regard, Ld. Counsel for the appellant further contended that admittedly the instant FIR was got registered/lodged by the complainant only when her parents had reached the complainant's house as well as the complainant was accompanied with her parents at the said point of time. Consequently, the Ld. Counsel for the appellant has tried to impress upon this Court that the instant case is an afterthought, concocted and registered solely to wrongfully rope in the appellant in the instant case, out of malice and previous grudges between the complainant and the appellant's family over the incident of throwing/dumping of garbage by the appellant outside complainant's house. However, the said contentions, when scrupulously evaluated in light of numerous judicial precedents governing the said field, in juxtaposition with the facts of the present case, the same deserve to be discarded outrightly in their entirety.
25. In regard the aforesaid, this Court outrightly discerns that in its opinion, though there is no delay in lodging the FIR in the instant case, considering the incident in question is stated to have occurred at the dead of the night and the FIR was got C.A. No. 23/2020 Banti @ Toni v. State Page 28 of 43 lodged/registered by the complainant, promptly, the following morning. However, even presuming that there was a delay, as alleged by the Ld. Counsel for the appellant, same would not be of much consequence in the instant case. Apposite to note in this regard that this Court is conscious of the fact that the superior courts have persistently cautioned that in the instances/incidents of sexual offences, delay in the lodging of the FIR can be due to variety of reasons, particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family, consequently, such delay(s) cannot be read against the prosecutrix of a case. In fact, in this regard, the Hon'ble Apex Court in Dildar Singh v. State of Punjab, (2006) 10 SCC 531, overtly explicated as under;
"6. ...A girl in a tradition-bound non-permissive society would be extremely reluctant even to admit that any incident, which is likely to reflect upon her chastity, had occurred, being conscious of the danger of being ostracised by the society or being looked down by the society. Her not informing anyone about the incident in the circumstances cannot detract from her reliability. In normal course of human conduct an unmarried girl would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate such incident. Overpowered, as she may be, by a feeling of shame her natural inclination would be to avoid talking to anyone, lest the family name and honour is brought into controversy. Thus, delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report. Delay has the effect of putting the court on guard to search C.A. No. 23/2020 Banti @ Toni v. State Page 29 of 43 if any explanation has been offered for the delay and, if offered, whether it is satisfactory"
(Emphasis supplied)
26. Similarly, the Hon'ble High Court of Bombay in Parmeshwar v. State of Maharashtra (Supra.), whist confronted with the situation of akin kind, shunned the objection pertaining to the alleged delay in lodging of FIR, inter alia, under the following findings;
"14. In the case at hand, victim has given the explanation for lodging the report late. It is pertinent to note that the incident took place at 11.00 pm. Only the victim and her grand mother in law were present in the house. Therefore, the conduct of the victim in waiting for the husband's arrival and then lodging the report cannot be faulted with. In this view of the matter, I do not find any infirmity in the appreciation made by the learned Trial Court and the learned Appellate Court. Revision is, therefore, devoid of any substance. Hence, it is dismissed. Criminal Application is also dismissed."
(Emphasis supplied)
27. Clearly, upshot of the foregoing discussion is that ordinarily the family of victim of sexual offences, tend to be hesitant in reporting the matter to the police, lest their life and family's reputation may be put to jeopardy. Ergo, under such circumstances, delay in lodging the first information report is quite a normal phenomenon and cannot be read against a prosecutrix. In fact, in this regard, the Hon'ble Supreme Court in Ramdas v. State of Maharashtra, (2007) 2 SCC 170, while also appreciating the factors leading to delay of lodging of FIR under such instances noted as under;
C.A. No. 23/2020 Banti @ Toni v. State Page 30 of 43"24. ... There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them. In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation. Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No straitjacket formula can be evolved in such matters, and each case must rest on its own facts..."
(Emphasis supplied) C.A. No. 23/2020 Banti @ Toni v. State Page 31 of 43
28. Categorically, mere lapse of time between the occurrence of an incident to that of reporting thereof by a prosecutrix to the concerned authorities cannot be the sole ground to outrightly discard her version of incident. On the contrary, courts are duty bounded to consider the facts leading upto such delay, in light of the factual scenario as well as the realities of the society. Even otherwise, this Court is conscious of the fact that no universal rule of conduct governs the behavior of the victims/witnesses of incidents. As a matter of fact, it is quite compressible that preceptors of a crime may react differently under such situations5; "some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately." Concomitantly, law does not prescribe a behavioral pattern to be attributed to a prosecutrix/victim of a sexual offence to give sanctity to her entreaty for justice. In fact, the Hon'ble Supreme Court in Mukesh v. State of Chhattisgarh, (2014) 10 SCC 327, in this regard, explicitly observed as under;
"14. Further, the accused has taken the defence that the prosecutrix did not call out for help, despite the fact that she had managed to free herself. However, we hold that, in the situation, where the prosecutrix was under the threat of being raped by the appellant/accused, we cannot expect her to be prudent and meticulous in her thought process. Hence, for her running away from the situation would have been the best possible thing to do at the time, therefore, not 5 Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417 C.A. No. 23/2020 Banti @ Toni v. State Page 32 of 43 calling out for help does not mean that the appellant/accused did not commit the offence. The state of mind of the prosecutrix cannot be precisely analysed on the basis of speculation because each person reacts differently to a particular stressful situation."
(Emphasis supplied)
29. Consequently, while applying the aforesaid principles to the facts of the present case (it is reiterated), this Court does not find itself convinced with the submission of the Ld. Counsel for the appellant pertaining to alleged delay in lodging of the FIR by the complainant/victim in the present case or that the same being designed out of ill will or malice. Apposite to further note in this regard that it has been/is a consistent case of the prosecution/prosecutrix that upon the complainant raising hue and cry at the time of incident, crowd gathered at the spot and someone from the crowd reported the police, who reached the spot of incident. Notably, the said version finds credence from the testimony of the prosecutrix, PW1 as well as that of PW8 SI (Retd.) Ramesh Kumar before the Ld. Trial Court. In fact, PW8 in his testimony before the Ld. Trial Court affirmed that on the date of incident, i.e., on 18/19.03.2012, at around 12:15 a.m. (midnight) when he was posted as ASI Civil Lines PP Majnu Ka Tilla, he received DD Entry No. 4PP (Ex. PW8/A) regarding one person, unlawfully entering in H. No. 104, Khebar Pass (spot/place of incident) and thereafter, PW8 reached the said spot, where the prosecutrix/complainant, PW1/Smt. 'R' is stated to be present. Further, PW8 in his said testimony explicitly deposed the complainant told him about the fact that a person C.A. No. 23/2020 Banti @ Toni v. State Page 33 of 43 namely, Banti (appellant herein), who was residing in neighborhood of the prosecutrix unlawfully entered in her house, after breaking the jaali. Additionally, as per PW8, the complainant was not ready to give her statement at that point in time as she was not comfortable in doing so and that she told him/PW8 that she/the complainant would reach police post Majnu ka Tilla in the morning and give her statement, which she eventually did. Wherefore, appreciating the consistent statement of PW1 and PW8 before the Ld. Trial Court, in the background of the aforesaid judicial precedents as well as the gravity of the incident which the prosecutrix is stated to have experience, the conduct of the victim in waiting for her parent's arrival and thereafter, lodging the FIR cannot be faulted with. Consequently, for the sake argument, presuming there was a delay in lodging of FIR in the instant case, same stands duly explained/elucidated in light of the foregoing. Further, it is pertinent to observe here that though, this Court holds highest regard for the decision(s) relied upon by the Ld. Counsel for the appellant in support of the preceding submissions, however, none of the said decision(s) would come to the aid of the appellant, as the facts and circumstances of the present case are clearly distinguishable.
30. Inasmuch as the contention of the Ld. Counsel for the appellant pertaining to the Ld. Trial Court, not appreciating the defence of the appellant is concerned, same too does not find favour with this Court. As a matter of fact, this Court is in concurrence with the finding of the Ld. Trial Court on this aspect, C.A. No. 23/2020 Banti @ Toni v. State Page 34 of 43 inter alia, to the effect that the appellant failed to produce/bring forth any evidence regarding the alleged previous (alleged) enmity between the complainant and the appellant's family or to place on record any document in this regard, including the complaint, if any, filed by the appellant against the complainant in this regard before any authorities. This Court is further in agreement with the observation of the Ld. Trial Court that DW1, Smt. Saroj, mother of the appellant, in her testimony of the Ld. Trial Court did not even disclose the particulars of/reasons leading to the alleged altercation between her/DW1 and the complainant. Needless to reiterate, though, it is the appellant's case that the complainant was a 'habitual complainant' and 'used to give false complaint against innocent persons' of the locality, however, no witness other that DW1 and the appellant/DW2 had been brought forth by the appellant in support of the said contention/defence. Further, without prejudice to the fact, though, both DW1 and the appellant/DW2 endeavored to dent the version of the prosecution by deposing that the appellant, at relevant point in time was at his sister's, namely, Jyoti's house, however, oddly the said sister/Jyoti was not produced as defence witness before the Ld. Trial Court. On the contrary, as aforenoted, the consistent statement of the prosecutrix, finding credence in limited aspect from the statement of PW3 and PW8 in the manner as noted herein, univocally points out towards the presence of the appellant at the spot and commission of offences with which he has been convicted by the C.A. No. 23/2020 Banti @ Toni v. State Page 35 of 43 Ld. Trial Court. Consequently, this Court too unambiguously reaches a deduction that the material placed on record, all directly point towards the guilt of the appellant herein. Needless to further iterate, this Court is further in concurrence with the finding of the Ld. Trial Court that the possibility of false implication of the appellant in the instant case is further ruled out, considering the prompt and immediate reporting of the present case by the prosecutrix before the concerned police authorities.
31. At this stage, it is germane to appreciate the ingredients of the offences with which the appellant has been convicted by the Ld. Trial Court, in light of facts and circumstances expounded herein. Outrightly, this Court deems it apt to consider the provisions under Sections 354 and 354A(1)(i) IPC, ingredients as well as satisfaction thereof in the present case. In order to appreciate the same, this Court deems it pertinent to refer to the decision of the Hon'ble Supreme Court 6 in Vidyadharan v. State of Kerala, (2004) 1 SCC 215, wherein while explicating the basic ingredients of Section 354 IPC, the Hon'ble Court 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 6 Premiya v. State of Rajasthan, (2008) 10 SCC 81 C.A. No. 23/2020 Banti @ Toni v. State Page 36 of 43 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)
32. Evidently, the ingredients of Section 354 IPC, as expounded by the Hon'ble Supreme Court in the aforesaid dictate relates to; (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'. Apposite to note at this stage in this regard that the Hon'ble Supreme Court in State of Punjab v. Major Singh, 1966 SCC OnLine SC 51, 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, inter alia, observed as hereinunder;
"15. I think that the essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, C.A. No. 23/2020 Banti @ Toni v. State Page 37 of 43 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)
33. As a matter of fact, in the aforesaid dictate, the Hon'ble Supreme Court overtly expounded 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 body7, neck and mouth by an accused (the appellant in the instant case), without the consent of the complainant/victim and that too at the dead hour of the night, would indubitably and plainly fall within the four corners of the provisions under Section 354 IPC. Needless to mention at this stage, the identity of the appellant; his presence at the scene of the incident; commission of the acts/incident involved, i.e., commission of criminal force and assault by the appellant herein by touching the neck and mouth of the victim at around the middle of the night and further subjecting the victim to unwelcome advances of 7 Present factual scenario is squarely covered by the decision of the Hon'ble Bombay High Court in Parmeshwar v. State of Maharashtra, 2021 SCC OnLine Bom 6144.
C.A. No. 23/2020 Banti @ Toni v. State Page 38 of 43sexual overtone in the instant case, in the opinion of this Court, are sufficient to bring home the charges under Section 354 IPC against the appellant in the present case. Further, considering the essential ingredients of the offence under Section 354A(1)(i) IPC, i.e., "physical contact and advances involving unwelcome and explicit sexual overtures", in light of the decision of the Hon'ble High Court of Delhi in T. Manikadan v. State (Govt. of NCT of Delhi), 2017 SCC OnLine Del 6440, the facts of the present case, plainly and unambiguously also/additionally point out towards the guilt of the appellant for the offence under Section 354A(1)(i) IPC.
34. Analogously, from a perusal of the MLC of the complainant, Ex. PW6/A, in light of the testimony of PW6 Dr Najahat Praveen and PW7 Dr. Sony Sohanee before the Ld. Trial Court, the ingredients of offence under Section 323 IPC further stand proved, 'beyond reasonable doubt' against the appellant herein. Relevantly, from a perusal of the victim's MLC bearing no. 570/2013 it is inter alia observed that the victim sustained, "(1) one abrasion on the forehead approx. 1.5 cm X 0.5 cm; (2) Three superficial abrasions on the left side of neck approx. one (01) cm each. horizontally placed; (3) Abrasion on the dorsum of right wrist approx. 1 cm X 0.5 cm", consequent to/during the said incident, injuries being opined to be 'simple' in nature. Needless to mention, the said fact stand proved by the consistent testimonies of PW6 Dr Najahat Praveen and PW7 Dr. Sony Sohanee, as aforenoted, duly proving the case against the C.A. No. 23/2020 Banti @ Toni v. State Page 39 of 43 appellant under Section 323 IPC.
35. As far as the appellant's conviction under Section 456 IPC is concerned, this Court is of the considered opinion and in concurrence with the finding of the Ld. Trial Court that, though, the ingredients of Section 455 IPC are not established in the instant case in the absence of any material or evidence or circumstances brought forth pertaining to the appellant having made preparation to cause hurt, assault or wrongful restraint to the victim/complainant herein, however, the charges/offence under Section 456 IPC stands duly proved against the appellant. Further, this Court finds itself duty bound to observe at this stage, considering the charges framed against the appellant by the Ld. Trial Court, wherein the ingredients of the offence with which the appellant is finally convicted (Section 456 IPC) are duly explicated, no prejudice in the opinion of this Court appears to have been caused to the appellant, despite the fact that the charges may not have been framed under Section 456 IPC against the appellant by the Ld. Trial Court (instead were framed under Section 455 IPC by the Ld. Trial Court). Clearly, from a perusal of the charges framed by the Ld. Trial Court it may be patently observed that the appellant was duly given notice of him being charged with the offence under Section 456 IPC, especially when the time and place of occurrence of the incident in question ("That on 18.03.2013 at about 12.00 night at H. No. 104, Khyber Pass Mess, Near Balmiki Mandir, Civil Lines, Delhi...you entered into the aforesaid house after breaking the grill of the C.A. No. 23/2020 Banti @ Toni v. State Page 40 of 43 house...") are duly specified under the charges dated 21.11.2013 framed by the Ld. Trial Court. Further, it is apposite to refer to the decision of the Hon'ble Supreme Court in Darbara Singh v. State of Punjab, (2012) 10 SCC 476, wherein the Hon'ble Court inter alia declared as under;
"20. The defect in framing of the charges must be so serious that it cannot be covered under Sections 464/465 CrPC, which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the court must have regard to whether an objection could have been raised at an earlier stage during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s)."
36. Plainly, from a perusal of the above, it is evident that in order to vitiate the trial for error/omission of framing of charges, the defect must be so serious as to fall outside the ambit of the provisions under Sections 464/465 CrPC, which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a C.A. No. 23/2020 Banti @ Toni v. State Page 41 of 43 consequence, a failure of justice. However, when the facts of the case and the records are thoroughly perused, mindful of aforesaid observations, no irregularity, omission or failure of justice can be discerned in the instant case.
37. Consequently, in conspectus of the above and inter alia keeping in view consistent and 'sterling' testimony of the complainant/victim/prosecutrix/PW1; the documents placed on record, including the complainant's MLC; and the statement(s)/ testimonies of the prosecution witnesses inter alia that PW3, PW6, PW7 and PW8, charges in question/case stand duly proved against the appellant herein. In fact, from the aforesaid, it is proved 'beyond reasonable doubt' that the appellant, on 18.03.2013 at about 11:30 p.m. to 12 midnight, intentionally committed lurking house trespass by night; outraged the modesty of the victim by use of criminal force on the victim intending to outrage or knowing it to be likely that he will thereby outrage her modesty; committed sexual harassment of the prosecutrix by physical contact and advances involving unwelcome and explicit sexual overtures; as well as voluntary caused hurt to the complainant/prosecutrix in the said process, thereby making himself liable for the offences punishable under Sections 456, 354, 354A(1)(i) and 323 of IPC, respectively.
38. Conclusively, in view of the above discussion, the present appeal deserves to be rejected/dismissed and is hereby dismissed. The judgment dated 25.02.2019 passed by the learned MM (Mahila Court)-02 (Central), Tis Hazari Courts, Delhi in C.A. No. 23/2020 Banti @ Toni v. State Page 42 of 43 case bearing "State v. Banti @ Toni, Cr. Case No. 8412/2013", arising out of FIR No. 69/2013, PS. Civil Lines convicting the appellant for the offences punishable under Section 354/354A(1)
(i)/323/456 IPC is hereby upheld. Consequently, the appellant/convict present before the court is taken into custody.
39. Order on Sentence shall be passed after compliance in terms of judgment of Hon'ble Delhi High Court titled as Karan Vs. State NCT of Delhi Crl. Appeal 352/2020 dated 27.11.2020.
Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2023.12.23 10:05:29 +0530 Announced in the open Court (Abhishek Goyal) on 22.12.2023. ASJ-03, Central District, Tis Hazari Courts, Delhi C.A. No. 23/2020 Banti @ Toni v. State Page 43 of 43