Delhi District Court
Sh. Anand Goel vs The State (Nct Of Delhi) on 19 January, 2023
IN THE COURT OF SHRI SUNIL GUPTA,
ADDITIONAL SESSIONS JUDGE-06, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
REVISION PETITION NO. 129/2021 (RBT 14/2022)
IN THE MATTER OF:
Sh. Anand Goel
S/o Late Sh. B.D. Goel
R/o Flat No. C-111, Golf View Apartments,
Saket, New Delhi.
........ Revisionist
Versus
The State (Nct of Delhi)
........ Respondent
Instituted on : 20.04.2021
Reserved on : 09.01.2023
Pronounced on : 19.01.2023
JUDGMENT
1. Vide this order, I shall dispose of revision petition U/s 397 Cr.P.C 1973 preferred by Mr. Anand Goel against order dated 03.03.2021 passed by Ld. MM-02 (Mahila Court), South District in FIR bearing no. 344/2017, PS Saket whereby charge has been ordered to be framed against him for the offences U/s 354/341/509 IPC.
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Digitally
signed by
SUNIL
SUNIL GUPTA
GUPTA Date:
2023.01.19
16:01:06
+0530
2. Briefly stated, the facts as per the record are as under:-
On 17.07.2017, an information vide DD No. 59A was received by police regarding misbehavior with one lady at C-75,DDA Flat, Saket, Delhi. On it, ASI Praveen Kumar went to the spot where father of complainant Sh. S.K. Bagai met him and stated that they will not give any complaint in this regard at that time. He stated that they will give the complaint later, on this, the call was kept pending. Ms. Charu Bagai (hereinafter referred to as respondent) gave a written complaint dated 17.07.2017 in the PS Saket on 18.07.2017, on the basis of which FIR No. 344/2017 U/s 354A/354D/509 IPC was registered against the revisionist herein. After completion of investigation, the final report for the offences U/s 354/354A/354D/509 IPC was filed by police against him. Cognizance was taken by Ld. Magistrate for the offences u/s 354/354A/341/509 IPC on 09.04.2018 and revisionist was summoned for next date of hearing i.e., 08.06.2018. After hearing the arguments from both the sides, charge for the offences U/s 354/341/509 IPC was ordered to be framed against him. The revisionist is challenging the same in these proceedings.
3. Record reveals that an application u/s 5 of the Limitation Act, 1963 for condonation of delay of two days in filing the present revision petition has been annexed with the appeal. It appears that no arguments were adduced on the said application. However, taking into consideration the order dated 27.04.2021 of Hon'ble Apex Court titled as Suo Motu Writ Petition (Civil) No.3 of 2020, delay stands condoned. Application in this regard stands disposed of.
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4. On merits, Ld. Counsel for the revisionist has assailed the impugned order on following grounds:-
(i) Ld. Trial Court has framed the charge for the offences U/s 341/354/509 IPC against the revisionist in a mechanical manner without there being any material.
(ii) The charge-sheet after investigation against the revisionist was not filed for the offence U/s 341 IPC but Ld. Trial Court framed the charge for that offence also without giving any reason.
(iii) There are material contradictions/improvements in the initial complaint dated 17.07.2017 of respondent and her statement U/s 164 Cr.P.C before Ld. Magistrate because her initial complaint did not disclose any sexual offence.
(iv) The statement of father of complainant U/s 161 Cr.P.C also does not disclose any sexual offence.
(v) The alleged video recording of the incident is fabricated and is not supported by proper certificate U/s 65B of the Evidence Act. Even otherwise, the said recording does not support the case of complainant/respondent in any manner whatsoever.
(vi) The FIR in question was falsely registered against the revisionist herein as he was voicing his concern against the action of respondent in feeding and sheltering the stray dogs which were constant source of menace and trouble for all the residents including the revisionist and his family.
(vii) There is unexplained delay in lodging the FIR.Crl Rev. No. 129/2021 Anand Goel Vs. State Page No. 3 / 16
Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
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5. Ld. Counsel has submitted that due to the grounds as mentioned above, the entire story of the prosecution becomes highly doubtful and benefit thereof should have been given to the revisionist by discharging him. He has prayed that the order dated 03.03.2021 of Ld. Trial Court be set aside. He has relied upon following judgments:-
(i) X Vs. State and Anr. CRL REV 308/2017.
(ii) State of Bihar Vs. Ramesh Singh (1977) 4 SCC 39.
(iii) Almohan Das and Ors. Vs. State of West Bengal 1970 CrilJ
860.
(iv) Mathura Das and Ors. Vs. State 104 2003 DLT 147.
(v) P. Vijayan Vs. State of Kerala AIR 2010 SC 663.
(vi) Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao 2012 (9) SCC 512.
(vii) B.R. Prasad@ Bangalore Ram Prasad Vs. State of Jharkhand 2007 CrilJ 3980, 2007 (3) JCR 378 Jhr.
(viii) K Ranakrishna and Ors. Vs. State of Bihar and Anr. The Hon'ble Supreme Court, Appeal Crl. 89/1999.
(ix) Shanta Kumar Vs. FIR No. 519/2015
(x) State Vs. Banwari Lal Council for Scientific and Industrial Research, 2017 SCC Online Del 11388.
(xi) Varinder Kaur Vs. The State Crl. Mc. 3931/207.
(xii) Santosh Prasad @ Santosh Kumar Vs. The State of Bihar, dated 10.02.2020 Crl. Appl. No. 264/2020.
(xiii) Krishna Kumar Malik Vs. State of Haryana (2011) 7 SCC
130.
(xiv) Bindu Vs. State Crl. Rev 406/2017.
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(xv) Laishram Premila Devi & Ors. Vs. State Delhi High Court dated 23.02.2021.
(xvi) State Vs. Harsh Dua FIR 223 PS Rajouri Garden.
6. On the other hand, Ld. Addl. PP for the State has argued that there is no illegality in the impugned order. It has been submitted that the material on record was sufficient for framing the charge against the revisionist for the offences u/s 354/341/509 IPC. He has prayed that present revision petition be dismissed.
7. Record reveals that respondent Ms. Charu Bagai was duly served and had put appearance through her counsel on 03.09.2021. Time was sought by her counsel on that day for filing reply to the revision. Same request was made on three subsequent dates i.e. 30.10.2021, 19.01.2022 and 26.03.2022, but no such reply was filed. There has been no appearance on her behalf after that. No arguments have been adduced from her side.
8. I have considered the submissions from both the sides. I have also gone through the case file and the judgments cited.
As mentioned earlier also, charge has been ordered to be framed against the revisionist for the offences U/s 354/341/509 IPC. He has been discharged for the offence u/s 354A IPC by Ld. Magistrate and same has not been challenged by the State or respondent/ complainant, so that has attained finality. Section 341 IPC provides as under:-
341. Punishment for wrongful restraint.--Whoever wrongfully Crl Rev. No. 129/2021 Anand Goel Vs. State Page No. 5 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.19 16:02:39 +0530 restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
Section 341 IPC provides punishment for the offence of wrongful restraint which has been defined under Section 339 IPC as under:-
339. Wrongful restraint.--Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
Exception.--The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.
Illustration A obstructs a path along which Z has a right to pass, A not believing in good faith that he has a right to stop the path. Z is thereby prevented from passing. A wrongfully restrains Z.
9. Admittedly, charge-sheet was not filed against the revisionist for the offence under Section 341 IPC. Ld. Magistrate has deemed it appropriate to order framing of charge for the said offence against him vide impugned order holding that when the respondent started recording his activities, he prevented her from proceeding in a particular direction.
10. As per the complaint dated 17.07.2017 of the complainant/ Crl Rev. No. 129/2021 Anand Goel Vs. State Page No. 6 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.19 16:02:52 +0530 respondent, while she was recording the movement of revisionist towards her side, he threw the danda on the back side and rushed to grab her. She started running back but he still kept his movements advanced. Her statement u/s 164 Cr.P.C. is also to the same effect on this particular aspect. From these allegations, it appears that there was no wrongful restraint of the respondent. It is not the case of prosecution that the way/ passage of the respondent was obstructed in any manner. Moreover, it appears that there was no such intention to wrongfully restrain the respondent from proceeding in any particular direction. In these circumstances, this Court is of the view that no prima facie case is made out against the revisionist for the offence u/s 341 IPC. He is accordingly, discharged for the same.
11. Vide impugned order dated 03.03.2021 of Ld. Magistrate, revisionist herein has been charged with offences u/s 354/341/509 IPC, however, formal charge is yet to be framed. Relevant portion of said order is reproduced below for ready reference:-
"Perusal of the charge-sheet and the accompanying documents reveals that it is the allegation of the complainant that on 16.07.2017 at around 11:00 pm, the accused, on seeing the complainant while she was feeding the stray dogs near the garage of her flat, after stalking her for some time kept one danda with a plan to hit her. In her self defence she started recording his movements towards her side. As soon as the accused noticed that she is recording her activities, he threw the long stick which was in his hands and started moving towards her to stop the recording. She started running back but he kept his movements Crl Rev. No. 129/2021 Anand Goel Vs. State Page No. 7 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.19 16:03:04 +0530 advanced and touched lower portion of her neck. He riffed her shoulders, touched and pressed her breasts. It is further alleged that the accused is a perpetual stalker and his bad eyes are towards her. He has been passing lewd remarks and staring her for the past 12 years. It is also the allegation of the complainant that he passed comments upon her. He has been doing this since last 10-12 years and he will say all kinds of Hindi abusive language. There are no specific allegations against the accsued attracting ingredients of Section 354A IPC. Accordingly, the accused is discharged of the said offence.
At this stage, there is no reason for this court to discard the version of the prosecution, at the time of framing of charge. From the allegations of the complainant prima facie it appears that when she started recording the activities of the accused he prevented the complainant from proceeding in a particular direction. He has passed comments, followed her for past 10-12 years and has also tried to outrage her modesty.
Hence, in view of the incident dated 16.07.2017 and on the basis of material on record, this court is of the view that there is a prima facie case made out against the accused as there are specific allegations attracting ingredients of Section 354/341/509 IPC."
12. One of the arguments of Ld. Counsel for revisionist for assailing the said order is that the respondent herein is habitual of making false complaints of such a nature against the residents of Golf View Apartments and several such complaints were made by her in past. Main reason for all those complaints as well as present complaint is Crl Rev. No. 129/2021 Anand Goel Vs. State Page No. 8 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.19 16:03:17 +0530 that she is fond of feeding stray dogs in the society. These dogs remain loyal to her for that reason, however, they become aggressive towards other residents which causes inconvenience to them. She has been told several times to change her behavior in this regard and on the fateful day also, same issue led to an altercation after which this case was registered on her false complaint. The IO has taken on record copy of correspondence in this regard and same is part of charge-sheet.
13. It is to be noted that merely because earlier also, such complaints of sexual assault were made on behalf of respondent herein cannot be a ground to disbelieve her present complaint and discharge the accused. Whether the allegations leveled by her are true or false, can be ascertained at the stage of trial only when the prosecution would be obligated to prove its case beyond reasonable doubt. It is settled law that at the stage of framing of charge, the Court has to see as to whether a prima facie case is made out against the accused on the basis of material on record or not. Trial Court is not expected to minutely scrutinize the material on record at that stage to see if it is sufficient for conviction or not. Reliance is placed on the judgment of Hon'ble Apex Court titled as Onkar Nath Mishra and Ors. Vs. State ( NCT of Delhi) and Anr. (2008) 2 SCC 561 in which it was held as under:-
"11. It is trite that at the stage of framing of charge the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the Court Crl Rev. No. 129/2021 Anand Goel Vs. State Page No. 9 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.19 16:03:46 +0530 is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At this stage, even strong suspicion founded on material which leads the Court to form a presumptive opinion as to existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
Similar observations were made by Hon'ble Supreme Court in State of Maharashtra & Ors. Vs. Som Nath Thapa and Ors. 1996 Cri.LJ 2448 in following words:-
"If on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."
14. Another ground taken by Ld. Counsel for revisionist is that the alleged video footage of the incident is not admissible as same has been taken on record and made a part of chargesheet by the police without following the law/ rules applicable therein. It was also argued that even otherwise, the footage supports his version of events and not the case of respondent/prosecution.
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Digitally
signed by
SUNIL
SUNIL GUPTA
GUPTA Date:
2023.01.19
16:04:18
+0530
15. Record reveals that the phone which was used to record the alleged incident was not seized by the police. The footage was handed over to them by Mr. S.K. Bagai, father of respondent alongwith a certificate u/s 65B of Indian Evidence Act. Whether same is admissible in evidence or not, can be appreciated at the stage of trial only. Even otherwise, it is settled law that an offence can be proved by oral testimony a single reliable witness also. There is no such legal proposition that there has to be a video recording of an incident to prove it.
16. Another ground taken by Ld. Counsel is that there is marked improvement in statement of respondent under Section 164 Cr.P.C. recorded by Ld. Magistrate from her initial statement to police. In her initial complaint to police, she had only mentioned that the revisionist had touched lower portion of her neck whereas in her statement before Ld. Magistrate, she alleged that he riffed her shoulders and touched her breasts. She also alleged that he pressed her breast and took hold of him. It was argued by Ld. Counsel that subsequent improvement in her statement under Section 164 Cr.P.C. in itself is sufficient to show the falsity of her case.
17. It is true that there is improvement in her statement under Section 164 Cr.P.C. as some of the facts pertaining to alleged incident have been mentioned therein for the first time. Having said that, this fact alone would not entitle the revisionist for discharge. He can take this defence during trial and it will be for Ld. Trial Court to see the Crl Rev. No. 129/2021 Anand Goel Vs. State Page No. 11 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.19 16:05:01 +0530 effect thereof, if any, on the final outcome of case. Reliance is placed on the recent judgment of Hon'ble Supreme Court titled as Hazrat Deen Vs. The State of Uttar Pradesh & Anr. SLP (Crl.) No.9552/2021. In the said case, while appreciating similar arguments regarding improvements by the prosecutrix in her statement under Section 164 Cr.P.C., it was held by Hon'ble Court as under:-
"Discrepancies between the FIR and any subsequent statement under Section 164 of the CrPC may be a defence. However, the discrepancies cannot be a ground for discharge without initiation of trial."
18. Reliance placed by revisionist on judgment of Hon'ble Delhi High Court titled as "Bindu & Anr. Vs. State of NCT of Delhi, Crl. Revision Petition 406/2017" is of no help to his case as in that case, an independent witness had contradicted the case of complainant which is not the case here. It was held by Hon'ble High Court in that case as under:-
"26. in the present case the independent eye witness does give his version of the incident, which, contradicts the version of the complainant. Not supporting the version of the complainant is distinct and different from contradicting the version of the complainant. If an independent eye witness claims not to have witnessed the incident and does not state anything about the incident and does not support the version of the complainant, his statement can be disregarded, however, where an independent eye witness admits to being a witness and makes a statement about the incident but contradicts the version of the Crl Rev. No. 129/2021 Anand Goel Vs. State Page No. 12 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.19 16:05:24 +0530 complainant, credence would have to be given to his version, more so, when the complainant herself has stated that the said eye witness was present throughout the incident."
19. Reliance placed by the revisionist on judgment of Hon'ble Delhi High Court titled as X Vs. State & Anr. Crl. Revision No. 308/2017 is also misplaced due to distinguishable facts which is clear from relevant portion therefrom reproduced below:-
"20. There is no medical or forensic evidence available against respondent no.2, no TIP has been conducted and there is no identification of respondent no.2 nor is he named in any statement made by the prosecutrix. There is nothing to show that respondent- Narender Mohan is the individual who is named as Man Mohan by the prosecutrix in her supplementary statement. Even otherwise the allegations against respondent no.2 are completely vague and unsubstantiated. The version given by the prosecutrix is ex-facie unreliable and does not give rise to suspicion leave alone grave suspicion against respondent no.2."
Similarly, the judgment of Delhi High Court in Varinder Kaur Vs. The State Crl. MC 3931/2017, relied upon by revisionist is distinguishable on facts.
Accordingly, this ground also is of no help to the case of revisionist.
20. Another ground taken by Ld. Counsel for revisionist is delay in lodging the FIR. It was argued that the alleged incident took place on Crl Rev. No. 129/2021 Anand Goel Vs. State Page No. 13 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.19 16:06:07 +0530 16.07.2017 and complaint thereof was given to police on 18.07.2017 whereupon FIR No. 344/2017 was registered on 21.07.2017.
21. It is settled law that mere delay in lodging the FIR is not sufficient to doubt the case of prosecution. Reliance is placed on the judgment of Hon'ble Apex Court in Ravinder Kumar & Anr. Vs. State of Punjab (2001) 7 SCC 690 in which it was held as under:-
"The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and intimidate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus point for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein. When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay."
22. Another ground taken by Ld. Counsel is that Mr. S.K. Bagai, Crl Rev. No. 129/2021 Anand Goel Vs. State Page No. 14 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.19 16:06:22 +0530 father of respondent who was also a witness to the alleged incident, has not stated anything qua the allegations leveled by his daughter in his statement u/s 161 Cr.P.C. which is sufficient to make the entire case of prosecution doubtful.
23. Perusal of written complaint of the respondent dated 17.07.2017 and her statement u/s 164 Cr.P.C. to Ld. Magistrate reveals that in both set of allegations, the respondent has stated about entry of her father by the time the revisionist has committed the alleged offence, so he could not have deposed about it in his statement under Section 161 Cr.P.C. It is not the case of revisionist that Mr. Bagai denied or contradicted the case of respondent altogether. So, the effect of his statement on the case of prosecution can be appreciated during trial only.
Hence, this ground is also of no help to the case of revisionist.
24. Lastly, Ld. Counsel for revisionist has argued that ingredients of section 509 IPC are not made out. Section 509 IPC provides as under:-
509. Word, gesture or act intended to insult the modesty of a woman. Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
25. Record reveals that the respondent in her statement u/s 164 Crl Rev. No. 129/2021 Anand Goel Vs. State Page No. 15 / 16 Digitally signed by SUNIL SUNIL GUPTA GUPTA Date:
2023.01.19 16:06:36 +0530 Cr.P.C. before Ld. Magistrate stated that on the fateful day, on seeing her, the revisionist passed following comments:-
"Thain lag rahi hai, tu mil, tujhe batata hoon."
In view of this Court, these words are sufficient to make out a prima facie case against the revisionist for offence u/s 509 IPC as these are clearly sexual in nature.
26. Considering the above discussion, the impugned order dated 03.03.2021 qua the revisionist Anand Goel is hereby set aside to the extent charge has been ordered to be framed against him for the offence u/s 341 IPC. Let charge for remaining offences u/s 354/509 IPC be framed against him and matter be proceeded further as per law.
Revision petition is disposed of in above terms.
Digitally signedSUNIL by SUNIL GUPTA GUPTA Date:
2023.01.19 16:06:52 +0530 Announced in the open (Sunil Gupta) Court on 19th January,2023 Additional Sessions Judge-06, South, Saket Courts, New Delhi Crl Rev. No. 129/2021 Anand Goel Vs. State Page No. 16 / 16