Delhi District Court
Raj Kumar vs State on 30 November, 2024
IN THE COURT OF SH. PURSHOTAM PATHAK, ASJ-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. APPEAL No. 470/18
CNR No. : DLST01-008191-2018
DATE OF INSTITUTION : 11.12.2018
Raj Kumar
S/O Sh. K. L. Boudh
R/O L-1st, 2650/62, Gali No. 1
Sangam Vihar, New Delhi-110062 ................ Appellant
Versus
The State Of NCT Of Delhi
Through Department Of Prosecution.............. Respondent
And
CRL. APPEAL No. 108/2019
CNR No. : DLST01-001857-2019
DATE OF INSTITUTION : 19.03.2019
'Ms. X',
................ Appellant
Vs.
1. Raj Kumar
S/o Sh. K. L. Boudh
R/o L-1st, 2650/62, Gali No. 1,
Sangam Vihar, New Delhi-110062
2. Govt. Of NCT of Delhi
Through
Station House Officer,
Police Station, Saket ................. Respondents
PURSHOTTAM
PATHAK
ARGUMENTS HEARD ON : 07.05.2024
Digitally signed
by
DATE OF JUDGMENT : 30.11.2024
PURSHOTTAM
PATHAK
Date: 2024.11.30
16:58:17 +0530
CA No. 470/2018 & CA No. 108/2019 Page no. 1 of 25
JUDGMENT
1. Vide this common judgment, I shall dispose of two appeals, one filed by accused and the another filed by complainant, thereby assailing the judgment dated 25.10.2018 and order on sentence dated 14.11.2018, passed by the Ld. Metropolitan Magistrate-02, (Mahila Court), South, Saket, in case bearing CR. Cases No.479/2/2014, 2035520/2016, titled as "State Vs. Raj Kumar". By the said judgment, the Ld. Trial court has convicted the accused for offences under section 354/509 IPC and acquitted him for charges u/s 354A 1(i) & (iv) of IPC. By order on sentence, accused has been sentenced to undergo, simple imprisonment for 30 days for offence U/s 509 IPC and simple imprisonment for a term of one year under Section 354 IPC and fine of Rs. 1000/-.
2. For the sake of convenience, I would be referring to the parties as per their nomenclature before the Ld. Trial Court. Therefore, the parties would be referred to as 'accused' and 'complainant'.
3. Succinctly stated, the case of prosecution is that the complainant and accused were working as independent typists outside the court of Sub Divisional Magistrate PURSHOTTAM (SDM) Saket and the accused had been harassing her for a PATHAK long time, regarding which she had filed a complaint Digitally signed by PURSHOTTAM PATHAK Date: 2024.11.30 against the accused to police station in the month of 16:58:22 +0530 CA No. 470/2018 & CA No. 108/2019 Page no. 2 of 25 August, 2014. Thereafter, on 04.09.2014, when the complainant was walking from her office towards mini Central market, Saket, the accused came from behind in a car and hit his hand on the hip of the complainant. He also caught hold of the hand of the complainant and started pulling her inside the car and said to her as to why she was walking by foot and that she should sit in the car. When the complainant told the accused that he could not get rid of his old habits, the accused caught hold of her hand, grabbed her collar (gireban) and started pulling her. The complainant cried for help on which the accused left the complainant and ran away in his car.
4. On these allegations, FIR was registered vide FIR no.
648/2014 under Section 354/354A/354B/354D IPC. After completion of investigation, chargesheet was filed against the accused for offences punishable under section 354/354A(1)(i)/354A(1)(iv)/509 IPC. On appearance of accused charge for offence u/s 354/354A(1)(i)/354A(1)
(iv)/509 of IPC was framed against the accused, to which he pleaded not guilty and claimed trial. However, in absence of ingredient the Ld. Trial Court discharged the appellant/ accused from the offence of Section 354 B IPC.
5. Prosecution to prove its case examined 06 witnesses PURSHOTTAM PATHAK before Ld. Trial Court i.e. PW-1 complainant, PW-2 Digitally signed by (witness to the seizure memo of the shirt), PW-3 ASI PURSHOTTAM PATHAK Date: 2024.11.30 16:58:25 +0530 CA No. 470/2018 & CA No. 108/2019 Page no. 3 of 25 Ishwar Singh Duty Officer, PW-4 Ct. Shailender, PW-5 Ct. Sumit and PW-6 IO/SI Jagdish Kumar.
6. PW1, the complainant deposed that accused and complainant both were working as typist at SDM office and when accused started misbehaving with her, she made a complaint to his father and a complaint was also made by her in the month of August 2014 at PS Neb Sarai. She deposed that on 04.09.2014, when she was going to J- Block Mini Market, at about 5:00 PM, the accused came in his car from the back side and hit his hand on her hip. She further deposed that the accused, who was sitting next to driver seat, said to her "jaaneman pedal kyu ja rhi ho chal mein chod deta hoon" and when she replied "Tu apni harkaton se baaj nhi aayega", accused caught her hand. The complainant rescued herself and a biker stopped to help her and on seeing him the driver of the said car ran away from the spot with the accused. She stated that while the accused was leaving, he caught hold of her shirt from collar and button of shirt was broken. She stated that she handed over the torn shirt to police on 26.11.2014.
7. On being cross examined by Ld. counsel, she denied the suggestion that she had not made any complaint to PS Neb Sarai prior to 04.09.2014. She further denied the suggestion that she had filed a false complaint against the accused on the behest of Devender Sejwal, Advocate. She Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK denied the suggestion that she had not written any PATHAK Date:
2024.11.30 16:58:30 +0530 CA No. 470/2018 & CA No. 108/2019 Page no. 4 of 25 complaint at the place of incident or gave any complaint to the police. She admitted that after arrival of police at the place of incident, she wrote the complaint and gave it to the police. She conceded that on the road there was heavy traffic and that in the shirt Ex. P-1 no button is broken.
8. PW-2 Ms. Neelam deposed that she was working as typist at DC (South) office at MB road and on 26.11.2014 accused Rajkumar misbehaved with complainant "chati pe hath mara jisse shirt ke kaaj phat gaye." In her cross examination she admitted that she do not know when and where the incident took place. She also admitted that on 04.09.2014, she was not present at the place of incident. She stated that on 26.11.2014, the date when seizure memo was prepared the complainant shown her shirt to her. She stated that the police official, who seized the shirt, has not written her statement on 26.11.2014.
9. PW-3 ASI Ishwar Singh deposed that on 04.09.2014, he was working as duty officer in PS Saket and on receiving Rukka from SI Jagdish through Ct. Sumit at around 6:40 PM, he registered the FIR Ex. PW-3A. He was cross examined by Ld. counsel for accused and discharged.
10. PW-4 Ct. Shailender deposed that on 04.09.2014, IO seized the shirt which was produced by complainant in front of SDM Court. He stated that colour of shirt was pink Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK and second button "kaaj" was torn when complainant PATHAK Date:
2024.11.30 16:58:33 +0530 produced the shirt. As this witness resiled from his earlier CA No. 470/2018 & CA No. 108/2019 Page no. 5 of 25 statement he was cross examined by the Ld. APP. Thereafter, he was cross-examined by defence counsel and discharged.
11. PW-5 Ct. Sumit deposed that on 04.09.2014, he alongwith SI Jagdish Kumar went at the place of incident, where they met the complainant, who gave a written complaint, on the basis of which Rukka was prepared and he got registered the FIR. In his cross examination, he stated that occurrence took place in front of SDM Court Saket. He stated that the complainant was standing at the place of incident and she gave a written complaint in her handwriting to the IO on the spot. He stated that complainant was wearing pink colour shirt on that day and one button of the shirt and the "kaaj" were broken. He stated that there were about 15 people at the spot and when IO tried to inquire from them, they refused to give statement and left the place.
12. PW-6 IO/SI Jagdish Kumar deposed that on 04.09.2014, he was posted as SI at PS Saket and on receiving DD entry no. 32A, he alongwith Ct. Sumit went to M. B. Road, opposite SDM office, Saket, New Delhi, whereby they met with the complainant. Complainant gave written complaint Ex. PW-1/A and on the basis of said PURSHOTTAM PATHAK complaint, he prepared Rukka, which was handed over to Digitally signed by Ct. Sumit for the registration of FIR. He deposed that he PURSHOTTAM PATHAK Date: 2024.11.30 16:58:37 +0530 prepared the site plan Ex. PW-1/B at the instance of CA No. 470/2018 & CA No. 108/2019 Page no. 6 of 25 complainant and also got the statement of complainant recorded u/s 164 Cr.P.C. before Ld. MM. He stated that he seized the clothes of the complainant vide seizer memo Ex.PW1/C.
13. In his cross examination he stated that at the spot the complainant had given a written complaint to him on a paper, which was given to her by him. He stated that the 'Kaaz" of the second button from the top of the shirt of the complainant was torn. He admitted that he did not seized the shirt on same day as complainant was wearing it and he seized it when she had given it to him on 26.11.2014.
14. After conclusion of prosecution evidence, statement of accused was recorded U/s 313 CrPC, wherein all the incriminating evidence was put to him. Accused denied the same as incorrect and claimed to be falsely implicated. As per accused, the allegations were made on the behest of Mr. Devinder Sejwal, who is having enmity against appellant/ accused.
15. Appellant did not lead any evidence in his defence.
16. Final arguments were heard by the Ld. Trial Court and vide impugned judgment dated 25.10.2018, the Trial Court convicted the appellant for offences u/s 354/509 IPC and acquitted him for offences u/s 354A(1)(i) & (iv) of IPC. PURSHOTTAM PATHAK
17. Aggrieved with the impugned judgment and order on Digitally signed by PURSHOTTAM sentence, accused has assailed the same vide appeal no.
PATHAK Date: 2024.11.3016:58:40 +0530 CA No. 470/2018 & CA No. 108/2019 Page no. 7 of 25 470/2018 on various grounds which can be summarized as under:-
i. that the Ld. Trial Court has failed to appreciate the fact that there are material contradictions in the statement of the complainant/ victim.
ii. that the Ld. Trial Court has passed the impugned judgment and order on sentence without going through the fact that the IO did not investigate the matter properly and implicated the applicant/ accused at the instance of the complainant, under the influence of other police officials, against whom a complaint has already been filed.
iii. that the Ld. Trial Court has not appreciated the fact that there is no public witness in the present case.
iv. that there are contradictions in the statement of police officials which the Trial Court failed to consider.
PURSHOTTAM PATHAK v. that the Ld. Trial court has failed to appreciate Digitally signed the material available on record as well as the by PURSHOTTAM PATHAK Date: 2024.11.30 documents relied upon by the applicant/ accused in 16:58:44 +0530 his statement u/s 313 Cr.P.C.
CA No. 470/2018 & CA No. 108/2019 Page no. 8 of 25 vi. that the present case has been registered at the instigation of Devender Sejwal, who was having enmity against the applicant / accused and his father.
18. On the other hand the complainant has assailed the impugned judgment vide appeal no. 108/2019, praying for conviction of appellant u/s 354A(1)(i) & 354 A(1) (iv) and sentencing him with maximum punishment on following grounds:
i. that the Ld. Trial Court has failed to appreciate the fact that in the statement recorded under Section 164 Cr.P.C., immediately, after the incident i.e. on 05.09.2014, the appellant had told the Ld. Magistrate that the respondent no. 1 had already been harassing her, by passing vulgar comments at her and making vulgar jokes, despite the complainant having objected to the same, which makes it clear that his act of making physical contact with the appellant on the date of incident was unwelcome and explicit sexual overtures towards the complainant, but the Ld. Trial Court failed to consider this fact and wrongly acquitted the accused/ respondent for the said offences.
PURSHOTTAM PATHAK ii. that the Ld. Trial Court has not appreciated the fact that the complainant has deposed that Digitally signed accused was harassing her for past many months and by PURSHOTTAM PATHAK Date: 2024.11.30 16:58:47 +0530 CA No. 470/2018 & CA No. 108/2019 Page no. 9 of 25 continued to harass her even after the registration of FIR.
iii. that the Ld. Trial Court failed to appreciate that the accused being an educated young man, the offence committed by him is not the offence of an ignorant person and as such the impugned judgment and order on sentence dated 14.11.2018 are liable to be modified.
iv. that the Ld. Trial Court has passed the impugned judgment and order on sentence in hasty manner without applying its judicious mind.
19. The Ld. counsel for accused has argued that the testimony of witnesses is full of lacunaes and contradiction and the whole prosecution case is unreliable. He submitted that the Ld. Trial Court failed to appreciate the points/ grounds raised by the counsel for accused during trial and has based its judgment on conjectures and surmises. He argued that the incident is alleged to have happened at a public place but no public witness has been examined. He further argued that the Ld. Trial court failed to appreciate that no such incident had taken place and the accused/ convict had been falsely implicated in this case. He submitted that the impugned judgment and order on sentence are liable to be set-aside and accused/ convict is Digitally signed by entitled to be acquitted in this case.
PURSHOTTAM
PURSHOTTAM PATHAK
PATHAK Date:
2024.11.30
16:58:52
+0530
CA No. 470/2018 & CA No. 108/2019 Page no. 10 of 25
20. Per contra, Ld. counsel for complainant argued that the Ld. Trial Court has not appreciated the provisions of law while passing the impugned judgment and order on sentence as the act of accused, do amounts to unwelcome and explicit sexual overtures, as such the impugned judgment and order on sentence are liable to be modified, thereby convicting the accused/ convict for offence u/s 354A1(i) and 354A 1(iv) IPC and sentencing him to maximum punishment prescribed under law.
21. Ld. APP for the State has argued that the judgment passed by the Ld. Trial Court is well reasoned and no ground for setting-aside the same is made out. Prosecution has examined six witnesses in support of its case and the said witnesses have duly proved the prosecution case. He submitted that the appeal filed by the accused is without merit and same is liable to be dismissed.
22. I have heard arguments advanced by Ld. counsels for both the parties and Ld. Addl. PP for State. I have also perused the Trial court record.
23. Appellant has been convicted and sentenced for offences punishable under Section 354/509 IPC and acquitted for offence u/s 354A(1)(i) & 354 A(1) (iv)
24. Section 354 IPC criminalises the assault or usage of PURSHOTTAM PATHAK criminal force on a women with an intention to outrage her modesty. In order to bring an act committed by a person Digitally signed by PURSHOTTAM PATHAK Date: 2024.11.30 16:58:55 CA No. 470/2018 & CA No. 108/2019 Page no. 11 of 25 +0530 within purview of section 509 of IPC, the act must have been committed with intention to insult the modesty of any women or to intrude upon the privacy of such women.
25. In a criminal trial, the onus remains on the prosecution to prove the guilt of the accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility, the benefit of doubt necessarily has to go to the accused. In order to sustain conviction, it has to be seen whether the prosecution has proved its case beyond reasonable doubt.
26. The essential ingredients of the Section 354 IPC are as follows-
1. That the assault must be on a woman.
2. That the accused must have assaulted or used criminal force on her.
3. That the criminal force must have been used on the woman with the intention to outrage her modesty.
27. PURSHOTTAM Criminal force has been defined in IPC at Section 350. PATHAK To summarize, it is when someone uses force to any Digitally signed by person without that persons consent, in order to the PURSHOTTAM PATHAK committing of any offence with the intention and Date: 2024.11.30 16:58:58 +0530 CA No. 470/2018 & CA No. 108/2019 Page no. 12 of 25 knowledge that the force would cause injury or fear or annoyance.
28. Section 351 IPC defines assault as follows--
"Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit as assault."
29. Before proceeding further however, it is important to analyze the meaning of the term 'modesty' which has not been defined in the Indian Penal Code.
30. In the case of Raju Pandurang Mahale v. State of Maharashtara and Anr., 2004 (2) SCR 287, it was held that what constitutes an outrage to female modesty is nowhere defined. It stated as follows--
"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."
31. The ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. Reliance is placed upon PURSHOTTAM PATHAK Tarkeshwar Anupendra v. State Sahu v. State of Bihar, Digitally signed by PURSHOTTAM (2006) 8 SCC 560 and State of Punjab V. Major Singh, PATHAK Date: 2024.11.30 16:59:05 +0530 AIR (1967) SC 63.
CA No. 470/2018 & CA No. 108/2019 Page no. 13 of 25
32. Further, as for the element of intention and knowledge in Vidyadharan Vs. State of Kerala, (2004) 1 SCC 215, the Hon'ble Supreme Court, observed as under--
"9. In order to constitute the offence under S 354 mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention having such outraged alone for its object. There is no abstract conception of modesty that can apply to all cases.
10. Intention is not the sole criteria of the offence punishable under S 354, I.P.C. 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."
33. Thus, the word 'modesty' is thus not to be interpreted with reference to the particular victim of the act, but as an attribute associated with female human beings as a class. The determination of whether the modesty of a woman has been outraged is thus not from perspective of the victim alone but also from the larger perception of the whole class.
34. Offence under section 509 IPC
35. An offence under Section 509 IPC also deals with the offence of insulting the modesty of a woman similar to Section 354 IPC. Section 509, IPC reads as under-
PURSHOTTAM "509. Word, gesture or act intended to insult the modesty of a PATHAK woman--Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, Digitally signed intending that such word or sound shall be heard, or that such by PURSHOTTAM PATHAK gesture or object shall be seen, by such woman, or intrudes upon the Date: 2024.11.30 16:59:10 +0530 CA No. 470/2018 & CA No. 108/2019 Page no. 14 of 25 privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both."
36. On a bare reading of this Section, it is clear that for an offence to fall with the purview of Section 509 IPC, it must have been committed with the intention to insult the basic modesty of any woman or to intrude upon the privacy of that woman. Intention is thus an essential ingredient.
37. In the instant case, complainant (PW-1) is the star witness of the prosecution and whole case depends upon her testimony. Perusal of her testimony reveals that she has gone whole hog with the prosecution version. In her testimony, she has categorically deposed about the entire incident in a consistent manner. Having deposed about the facts, she testified about the incident that had occurred at around 5.00 PM on 04.09.2014. She stated that when she was going to J-block, Mini Market, accused came from behind in a car and started misbehaving with her, saying "jaaneman pedal kyu ja rhi ho chal mein chod deta hoon" and when she replied "Tu apni harkaton se baaj nhi aayega", and he caught hold of her hand. He also started pulling her inside the car by grabbing the collar (gireban) of the complainant.
38. PW1 faced grueling cross-examination but defence Digitally could not elucidate anything to discredit her. During her signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.11.30 cross examination, PW-1 denied the suggestion that she 16:59:20 +0530 had filed a false case against accused on behest of CA No. 470/2018 & CA No. 108/2019 Page no. 15 of 25 Devender Sejwal. She also denied the suggestion that she had not written any complaint at the place of incident or gave any complaint to the police. Her testimony is absolutely trustworthy and unblemished. She has withstood rigors of cross-examination without being shaken and therefore her testimony was rightly relied upon by Ld. Trial Court. The statement under Section 164 Cr.P.C, further corroborates the stand of the complainant/victim.
39. The role of PW- 2 is formal in nature. She is the witness to the seizure memo Ex. PW-1/C vide which the shirt was seized by the police. Rest of the witnesses are formal witnesses having basic investigative role in the case.
40. The trial court found the evidence of PW-1 worthy of reliance. The Magistrate observed that the statement of PW-1 has remained un-rebutted and unshaken as no material has been brought to prove that the alleged incident had not happened and even otherwise the accused has not stepped into witness box to prove his case.
41. In the instant matter, the appellant has misbehaved with the complainant by passing remarks, hitting her on her hip, making gestures and pulling her. He has also commented at her saying "jaaneman pedal kyu ja rhi ho Digitally chal mein chod deta hoon"and told her to sit in car. The signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
actions of the accused are such that would shock the sense 2024.11.30 16:59:27 +0530 CA No. 470/2018 & CA No. 108/2019 Page no. 16 of 25 of decency of a woman. The act of accused also clearly amounts to intentional insult to the modesty of the complainant.
42. The accused has therefore been rightly convicted for offence under section 354/509 IPC.
43. The counsel for the accused has argued that the Ld. Trial court failed to appreciate that there was an existing dispute between the complainant and the accused and the present case was registered at the instigation of Devender Sejwal, who was having enmity with the accused and his father. In my considered view, the above submissions are not founded on any concrete material and, therefore, cannot be given any serious consideration. Even if one were to believe that there was some dispute between the complainant and accused, it would not mean that she is to be disbelieved, whenever she makes any allegation of crime having been committed against her.
44. Ld. Counsel for the accused has contended that despite the place of incident being a public place, no public witness was examined. However, I do not find any force in such contention as non-investigation with regard to public witnesses cannot go to the root of the matter and benefit of defect in investigation cannot be given to the accused. It is common to find that public persons do not wish to drag Digitally signed by into any controversy. There is general reluctance to be PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.11.30 16:59:30 cited as witness and people do not wish to be summoned +0530 CA No. 470/2018 & CA No. 108/2019 Page no. 17 of 25 by court and to render their testimony before a court of law. Owing to the fear of courts and a misconception that the witnesses would be subjected to harassment, people do not wish to come forward to narrate their version even though they may have witnessed the incident. Merely because the said persons do not come forward does not imply that version of the victim should be ignored or deprived of due credit. In the case of Appa Bhai Vs. State of Gujrat AIR 1988 SC 696, it has been held as under:-
"It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil disputes are between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore that this handicapped with which the investigating agencies have to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
45. The counsel for the accused has argued that there are material contradictions/inconsistencies which go to the root of the case and, on which account, the benefit of doubt should have been extended to the accused. So far as minor discrepancy in the version of testimonies of PW1 is concerned, none of the contradictions as pointed out by the Ld. Counsel for appellant during the course of arguments, Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
is of such nature so as to go into the root of the matter. The 2024.11.30 16:59:34 +0530 CA No. 470/2018 & CA No. 108/2019 Page no. 18 of 25 said minor contradictions does not corrode the credibility of the victim, therefore, the same cannot be dubbed as contradictions so as to brush aside the case of prosecution unworthy of credence. The Trial court has rightly observed that the contradictions pointed out by the Ld counsel for the accused can neither be called improvements or contradictions in said statements of the complainant but are merely a change in form of allegation. Small contradictions by themselves are no reason to throw the case out. It has been held time and again that discrepancies do not necessarily demolish the testimony. Proof of guilt can be sustained despite little infirmities. [Narotam Singh Vs. State 1978 Cr. L. J. 1612 (SC)]. No undue importance can be attached to such discrepancies if they do not go to the root of the matter and do not shake the basic version of witnesses. [Lallan Vs. State1990 Cr. L. J. 463]. It was ruled in Ramni Vs. State, [Judgment Today 1999(6) SC 247] that all discrepancies are not capable of affecting the credibility of witnesses. Similarly, all inconsistent statements are not sufficient to impair the credit of a witness. Hon'ble Apex Court in State of Rajasthan Vs. Smt. Kalki and Anr. (1981) 2 SCC 752 (FB) observed as under:-
"In the deposition of witnesses there are always normal PURSHOTTAM discrepancies, however honest and truthful they may be. Those PATHAK discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental deposition such Digitally signed by PURSHOTTAM as shock and horror at the time of occurrence and the like. Material PATHAK Date: 2024.11.30 16:59:37 +0530 CA No. 470/2018 & CA No. 108/2019 Page no. 19 of 25 discrepancies are those which are not normal and not expected from a normal person. "
46. Ld. Counsel for the accused has failed to point out any material contradiction in the testimony of witness so as to render the same unreliable. In the present case the testimony of the complainant is cogent and convincing. Ld. Counsel for the accused has failed to point out any material contradiction in the prosecution version.
47. On careful appraisal of the evidence led on the record of the Trial court, I am of the considered view that the guilt of the accused has been duly brought home beyond all manner of doubts. The prosecution evidence in general, and the testimony of PW1 in particular, inspire confidence. Perusal of impugned judgment further shows that Ld. Trial court has dealt with essential ingredients of offences punishable under section 354 IPC and 509 IPC. The Trial court has analyzed and appreciated the testimony of witnesses and observed that PW-1 has supported the case of prosecution.
48. Keeping in view the facts and circumstance proved by the prosecution during trial, I am of the considered view that accused/ convict is liable to be convicted for the offence punishable under Section 354/509 IPC and he has PURSHOTTAM PATHAK been rightly convicted by Ld. Trial Court under these provisions of law.
Digitally signed by PURSHOTTAM PATHAK Date: 2024.11.30 16:59:41 +0530CA No. 470/2018 & CA No. 108/2019 Page no. 20 of 25
49. The reasoning given by Ld. Trial Court while convicting the accused for said offences is just and proper and I find no reason for setting aside the same.
50. Hence, conviction of appellant for offence punishable under Section 354/509 IPC is hereby upheld and the appeal bearing CA No. 470/2018 stand dismissed.
51. Now coming to the Appeal no.108/2019 preferred by the complainant, challenging the judgment dated 25.10.2018. Before moving to the merits of the present appeal, at the outset, it is pertinent to mention that the appeal has been preferred by the complainant, after the expiry of limitation period. Complainant has filed a separate application explaining the reasons for delay in filing of present appeal. It is stated, in the application that complainant being only earning member of the family was not able to keep a regular follow up of the trial and was not aware of impugned judgment dated 25.10.2018 and order on sentence dated 14.11.2018, passed by Ld. Trial Court. It is further submitted that the complainant came to know about the same in the month of February, 2019 and thereafter, she instructed her counsel to file the present appeal. Hence, the appeal was filed with delay of 114 days. She further submits that the delay in filing the appeal was Digitally signed neither intentional nor deliberate but the same was only by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
due to the said facts and circumstances and was bonafide 2024.11.30 16:59:45 +0530 CA No. 470/2018 & CA No. 108/2019 Page no. 21 of 25 one. I do not find any deliberate attempt on part of the appellant. The condonation application is allowed and delay stands condoned.
52. The complainant had challenged the said judgment to the extent of acquittal of accused for offences under section 354A (1)(i) & (iv) of IPC.
53. Section 354A IPC relates to sexual harassment, sub-
section (1) thereof provides that a man committing any of the following acts:-
i. physical contact and advances involving unwelcome and explicit sexual overtures; or ii. demand or request for sexual favours; or iii. showing pornography against the will of a woman;
or iv. making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
54. Ld. counsel for the complainant has contended that there is improper appreciation and there is clinching evidence against the accused for commission of offence under section 354A1(i) & (iv) of IPC. He has argued that the accused has already been harassing the complainant and has been passing vulgar comments at her, which makes it clear that the physical contact with the Digitally signed by complainant on the date of incident was unwelcome and PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.11.30 explicit sexual overture toward complainant. 16:59:50 +0530 CA No. 470/2018 & CA No. 108/2019 Page no. 22 of 25
55. Section 354A(1)(i) talks about physical contact and advances both. The use of word 'and' in Section 354 A requires that there should be physical contact with sexual advances/overtures. Therefore, this provision is applicable in a situation where the accused does not stop after committing a single isolated act of criminal force but rather goes on to commit several other similar acts, which ends up converting his actions into advances of a sexual overtures.
56. Complainant claims that on 04.09.2014, accused came from behind in a car and started misbehaving with her saying "jaaneman pedal kyu ja rhi ho chal mein chod deta hoon" and when she replied "Tu apni harkaton se baaj nhi aayega", accused caught her hand. He also tried to pull her inside the car by grabbing her collar (girebaan).
The Trail court, however, did not believe the claim of complainant and has observed that section 354A1(i) & (iv) of IPC is unlikely to be attracted in this case as it cannot be conclusively stated from all the facts and circumstances of the case that the accused made physical contact and advances, involving 'unwelcome and explicit sexual overtures' and had passed 'sexually coloured remarks' to her, amounting to sexual harassment.
57. The remarks allegedly made by accused, as stated by PURSHOTTAM the complainant, neither involves physical advances nor a PATHAK demand/request for sexual favours nor a sexually coloured Digitally signed by PURSHOTTAM PATHAK Date: 2024.11.30 16:59:53 +0530 CA No. 470/2018 & CA No. 108/2019 Page no. 23 of 25 remarks. In the present case, none of the allegations as enumerated in Section 354 A of IPC is attributed to the accused. Section 354A 1(i) & (iv) of IPC are unlikely to be attracted as it cannot be conclusively stated from all the facts and circumstances of the case that accused made physical contact and advances involving unwelcome and explicit sexual overtures and had passed sexually coloured remarks at complainant, amounting to sexual harassment.
58. I have not been able to deduce any illegality in the approach adopted by the Ld Trial court. Aforesaid reasoning of the Ld. Trial court is clearly justified on the available material.
59. With these observations, appeal (CA No.108/2019) filed by complainant stands dismissed.
60. Order on sentence shall be passed after compliance in terms of judgment of Hon'ble High Court of Delhi titled as "Karan Vs. State of NCT of Delhi" Crl. Appeal 352/2020.
61. The matter be adjourned for arguments on sentence.
62. A copy of this judgment be supplied to Ld. counsels forthwith.
PURSHOTTAM
63. Since the matter pertains to offences of sexual PATHAK harassment, the name of victim has not been provided in Digitally signed by PURSHOTTAM the present judgment and since the victim is the PATHAK Date: 2024.11.30 16:59:57 +0530 CA No. 470/2018 & CA No. 108/2019 Page no. 24 of 25 complainant herein her name has also not been provided in the title of the judgment.
64. The Ahlmad and the computer branch shall take necessary steps to mask the name of victim on the CIS.
65. One copy of judgment under signature of undersigned be placed in CA No. 470/2018 and digitally signed copies be placed in the another appeal.
66. A copy of this judgment be sent to the Ld. Trial Court.
67. The appeal bearing CA No. 108/2019 be consigned to the Record Room after due compliance.
Digitally signed by
PURSHOTTAM PURSHOTTAM PATHAK
PATHAK Date: 2024.11.30
17:00:03 +0530
ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK) TODAY ON THIS ASJ-05(SOUTH) th 30 DAY OF NOVEMBER, 2024 SAKET COURTS: N.D (This judgment contains total 25 signed pages) CA No. 470/2018 & CA No. 108/2019 Page no. 25 of 25