Delhi District Court
Harminder Pal Singh Shah vs State Of Nct Of Delhi on 1 October, 2022
IN THE COURT OF SH. MANISH KHURANA: ASJ04
WEST DISTRICT, TIS HAZARI COURTS : DELHI
CNR No.DLWT010075672019
Crl. Rev. No. 313/19
Harminder Pal Singh Shah
S/o Sh. Harpal Singh,
R/o H. No. A9/D, Block12,
DDA Flats, Tilak Nagar, Delhi
............. Revisionist
Vs.
State of NCT of Delhi
Through its Standing Counsel
............ Respondent
Date of Institution of case : 18.09.2019
Date of decision : 01.10.2022.
Decision : Revision Petition partly allowed.
JUDGMENT
1. This is the revision petition u/s 397 and 399 Cr.P.C filed by the revisionist/petitioner against the impugned order dated 01.08.2019 of Ld MM (Mahila Court2)/West/Tis Hazari Courts, Delhi vide which charges u/s 323/341/354/356 IPC have been ordered to be framed against the accused/revisionist.
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2. I have already heard arguments on the present revision petition and perused the record.
3. Brief facts of the present petition are that on 19.08.2014, a case FIR No. 881/14 was registered at PS Hari Nagar u/s 323/341/354/356 & 379 IPC on the basis of complaint filed by complainant Ms. Jagdeep Kaur wherein the complainant alleged that on 19.08.2014 at around 11.30 am, she and her mother Smt. Harjeet Kaur were riding on her scooty bearing no. DL10SG3733 around Jheel Wala Park, LBlock, Hari Nagar, when she accidentally touched a car bearing no. DL9CAC9399. Complainant further alleged that subsequent thereto the driver of the car parked his car in such a way so as to block the complainant's way and he got out of the car angrily and then he abused and beaten up the complainant and her mother. It is further alleged that when the complainant objected to his conduct, he allegedly put his hand upon her chest and pushed her and snatched her purse containing Rs. 5000/. It is further alleged that when her mother objected to this, he also touched her mother's chest and pushed her away and snatched the mobile phone make Nokia of her mother. In her complaint, the complainant prayed for her medical examination and stated that she could recognize the driver of the car upon seeing him. After the registration of the FIR, the investigation was conducted by the police and the chargesheet was filed before Ld MM (Mahila Court02), West, THC u/s 323/341/354/356/379 IPC and the petitioner herein was named as an accused in the aforesaid chargesheet.
4. Subsequent to the registration of FIR, the complainant and her mother were taken to DDU Hospital for their medical examination and as per Crl. Rev. No. 313/19 Harminder Pal Singh Shah Vs. State Page no. 2 of 11 MLC No. 11430/14 dated 19.08.2014 complainant Jagdeep Kaur had superficial abrasion on her right knee and bluish bruise over her left knee and as per MLC No. 11431/14 dated 19.08.2014 her mother Harjeet Kaur had bluish bruise on left forearm flex armpit and reddish bruise on right thumb. AS per the chargesheet, police went with the complainant and her mother to the spot and prepared the site plan and after obtaining the ownership details of car bearing no. DL9CAC9399 police went to the accused/petitioner's house where wife of the accused was found and thereafter the petitioner/accused came to the police station where the complainant allegedly recognized him as the accused who committed the alleged offence. Thereafter, the police seized the aforesaid car and arrested the accused/revisionist on 19.08.2014 itself and nothing was recovered from accused/revisionist and thereafter, the accused allegedly led the police to the spot. Thereafter, complainant's statement u/s 164 Cr.PC was recorded before the Magistrate on 20.08.2014. The accused allegedly made the disclosure statement before the police that he had thrown the mobile phone and purse in the area close to the spot, however, despite search police could not find any article or any proof thereof. Thereafter, the seized car was released to the accused's wife on superdari.
5. It is alleged in the instant revision petition that there are contradictions in the statement of the complainant recorded u/s 164 Cr.PC before the Magistrate on 20.08.2014 and in her complaint dated 19.08.2014 filed by the complainant before the police, however, Ld MM (Mahila Court
02) West, THC did not appreciate the aforesaid fact and ordered framing of charge u/s 323/341/354/356 IPC against the Crl. Rev. No. 313/19 Harminder Pal Singh Shah Vs. State Page no. 3 of 11 accused/petitioner vide impugned order dated 01.08.2019.
6. It is alleged on behalf of the petitioner that the impugned order passed by the Court of Ld MM is in violation of established principles of criminal law and that Ld MM failed to appreciate that there was no material on record to justify the framing of charges u/s 323/341/354/356 IPC against the accused/petitioner herein. It is further alleged that Ld MM failed to appreciate that the allegations made in the FIR have not been corroborated during the investigation or even by the complainant's own statement u/s 164 Cr.PC. It is further alleged that the police did not record the statement of any other witness apart from the complainant and no public witness was made to join the investigation despite availability as the alleged spot of incident was a public road. It is also alleged that there is no material on record to frame charge u/s 354 IPC because even as per the statement of the complainant either u/s 161 Cr.PC or 164 Cr.PC, there is no evidence to show that there was an intent of the accused to outrage the modesty of the complainant or her mother. It is further alleged that Ld MM dropped the charge u/s 379 IPC and therefore, there was no ground to frame the charge u/s 356 IPC. It is further alleged that so far as charge u/s 323/341 IPC are concerned, no sufficient material existed to frame the aforesaid charges against the accused/revisionist.
7. Ld counsel for the petitioner argued that the IO did not collect the best evidence in the form of location of the accused at the time of commission of alleged offence which could have been obtained by the IO by tracing the location of the accused from the google website from the mobile phone of the accused. Ld counsel argued that even the TIP of Crl. Rev. No. 313/19 Harminder Pal Singh Shah Vs. State Page no. 4 of 11 the accused was not conducted and in view of the judgment of Ramanathan Vs. State of Tamilnadu (1978) 3 SCC 86, the TIP of the accused should have been conducted prior to chargesheeting him in the present case.
8. Ld counsel for the petitioner also relied upon the judgment of Sajjan Kumar Vs. CBI (2010) 9 SCC 368 and he argued that the Court is not expected to act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probability of the case, the total effect of the evidence and the documents produced before the Court including any basic infirmities etc.
9. Per contra, Ld Addl. PP for the State argued that though there are contradictions in the statement of the complainant which culminated into FIR dated 19.08.2014 and her statement recorded before the Magistrate on 20.08.2014 u/s 164 Cr.PC as observed by Ld MM (Mahila Court02)/West/THC in the impugned order, however, the aforesaid contradictions do not entitle the accused/petitioner to be outrightly discharged from the present case. Ld Addl. PP for the State submitted that so far as the offence u/s 323/341 IPC are concerned, the statements of the complainant clearly reveals that the accused/petitioner wrongly restrained the complainant and her mother and caused simple hurt to the complainant as well as to her mother.
10.Ld Addl. PP for the State however conceded that so far as the charge u/s 354 IPC is concerned, the essential ingredient of the intent of the accused to outrage the modesty of a female so as to constitute the offence u/s 354 IPC is missing and that the incident took place in a spur of moment due to vehicular accident.
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11.Ld Addl. PP for the State submitted that Ld Trial Court has discharged the accused for the offence u/s 379 IPC, however, as per the allegations levelled by the complainant in her initial complaint before the police and in her statement u/s 164 Cr.PC recorded before the Magistrate, there are allegations of theft against the accused/revisionist.
12.I have heard Ld counsel for the revisionist/accused as well as Ld Addl. PP for the State and perused the record.
13.In the present revision petition, it is alleged by the revisionist/accused that he is liable to be discharged for the offences u/s 323/341/354/356 IPC and that Ld Trial Court has wrongly framed the charge for the aforesaid offences vide impugned order dated 01.08.2019.
14.I have perused the material available in the Trial Court Record. As per the initial complaint dated 19.08.2014 given by the complainant upon which the FIR bearing No. 881/2014, PS Hari Nagar was registered, the complainant alleged that she and her mother were riding on a scooty around Jheel Wala Park, LBlock, Hari Nagar on 19.08.2014 and at about 11.30 am accidentally her scooty got touched with the car of the accused bearing no. DL9CAC9399 and subsequent thereto the accused/driver of the aforesaid car parked his car in such a way so as to block her way and he angrily came out of his car and abused and beat up the complainant and her mother. In the aforesaid complaint, the complainant also stated that when she objected to the conduct of the said driver/accused, he pushed her by her chest and snatched her purse containing Rs. 5,000/. The complainant further stated that when her mother objected to his conduct then the accused also pushed her from her chest and snatched her mobile phone.
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15.In her statement u/s 164 Cr.PC recorded before the Magistrate, the complainant made certain improvements and she stated that the driver of the car i.e. the accused wrongfully restrained her by stopping his car in front of her scooty and caused hurt to her as well as to her mother. The complainant further stated that the driver of the said car snatched the mobile phone and purse of her mother. The complainant did not state in her statement u/s 164 Cr.PC that the accused touched on her chest or that the accused snatched her purse containing Rs. 5,000/ as stated by her in her initial complaint given to the police.
16.Perusal of the Trial Court Record and the statements of the complainant primafacie reveals the alleged commission of offences u/s 323/341 IPC by the accused and hence, the accused cannot be ordered to be discharged for the aforesaid offences as claimed by him vide instant revision petition.
17.So far as the offence u/s 354 IPC is concerned, the complainant has levelled allegations in her initial complaint given to the police which culminated in registration of FIR dated 19.08.2014 that the accused touched her chest by his hand and pushed her and that the accused did the same act with her mother as well, however, in her statement u/s 164 Cr.PC dated 20.08.2014 complainant nowhere stated any such allegation of pushing or touching her chest or the chest of her mother.
18.In the judgment of Raju Pandurang Mahale Vs. State of Maharashtra & Anr (2004) 4 SCC 731, Hon'ble Supreme Court observed that the essential ingredients of the offence u/s 354 IPC are (a) that the assault must be on a woman, (b) that the accused must have used criminal force on her, (c) that the criminal force must have been used on a woman Crl. Rev. No. 313/19 Harminder Pal Singh Shah Vs. State Page no. 7 of 11 intending thereby to outrage her modesty. It was further observed that 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. (para 11 & 12).
19.In the present case, the scuffle allegedly took place at the spot of incident as per the FIR due to a vehicular accident between the vehicle of the accused and that of the complainant and perusal of the statements of the complainant do not reveal any culpable intention of the accused to outrage the modesty of the complainant or her mother which is an essential ingredient to constitute the offence punishable u/s 354 IPC. Further, Ld Addl. PP for the State has also fairly conceded that as per complaint of the complainant essential ingredients of the offence punishable u/s 354 IPC are missing.
20.In view of the facts and circumstances and the material available on record, I am of the opinion that the accused/revisionist is liable to be discharged for the offence u/s 354 IPC.
21.So far as the offence of theft punishable u/s 379 IPC is concerned, Ld Trial Court did not frame the charge for the aforesaid offence and instead framed the charge u/s 356 IPC while mentioning in the impugned order as well as in the formal charge dated 01.08.2019 that the accused assaulted the complainant and snatched her purse containing Rs.5,000/ and thus, he committed the offence punishable u/s 356 IPC.
22.Section 378 IPC defines the offence of theft as whoever intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to Crl. Rev. No. 313/19 Harminder Pal Singh Shah Vs. State Page no. 8 of 11 such taking, is said to commit theft. The punishment for the offence of theft is provided u/s 379 IPC.
23.In view of section 378 IPC, the offence of theft is committed when a person intending to take movable property out of the possession of any person without that person's consent, moves that property. In the present case, the accused has been charged only for the offence u/s 356 IPC for the alleged snatching of purse of the complainant containing Rs. 5,000/, however, the aforesaid purse or the alleged amount was not recovered by the IO during the investigation.
24.The complainant's statement was also recorded u/s 164 Cr.PC on 20.08.2014 i.e. the next day of the incident before Ld MM wherein complainant did not state anything regarding the commission of offence of theft with her or the alleged snatching of purse containing Rs. 5,000/ as stated by her in her complaint given to the police on 19.08.2022 which culminated into registration of FIR. However, the complainant in her statement u/s 164 Cr.PC stated that the accused snatched the purse and mobile phone of her mother so that they may not lodge complaint against him.
25.In her statement u/s 164 Cr.PC, the complainant has not alleged that the accused 'dishonestly' moved the movable property i.e. purse or mobile phone with an intention to commit theft and as per the statement the alleged snatching was to restrain the complainant from lodging the complaint against the accused.
26.It is pertinent to mention that the alleged allegations of theft as levelled by the complainant in her statement u/s 164 Cr.PC are qua the alleged snatching and theft committed with her mother Harjeet Kaur, however, Crl. Rev. No. 313/19 Harminder Pal Singh Shah Vs. State Page no. 9 of 11 during the investigation even the statement of Harjeet Kaur was not recorded by the IO. It is important to mention here that the IO Retd. ASI Hari Kishan was summoned before this Court and he gave the statement on 20.09.2022 that he did not record the statement of PW Harjeet Kaur during investigation and her name is inadvertently mentioned at serial no. 2 in the list of witnesses in the chargesheet filed before Ld Trial Court and that even as per the case diary, no statement of PW Harjeet Kaur was recorded during investigation.
27.Ld Trial Court has not framed the charge u/s 379 IPC against the accused/revisionist. However, Ld Trial Court has framed the charge u/s 356 IPC for assault in attempt to commit theft of purse of the complainant Jagdeep Kaur whereas the complainant Jagdeep Kaur has not levelled any allegations of snatching of her purse by the accused in her statement u/s 164 Cr.PC and rather she levelled allegations of snatching of purse and mobile phone of her mother Harjeet Kaur whose statement was not recorded by the IO during investigation. As per the statement of the complainant, the alleged snatching of purse of the mother of the complainant was done only to desist the complainant from making the complaint against the accused and it is not alleged by the complainant that the aforesaid snatching was done with dishonest intention to commit theft.
28.In view of the abovesaid facts and circumstances and the material available on record, I am of the opinion that there is no sufficient material on record to frame the charge u/s 356 IPC against the accused and that the accused is liable to be discharged for the said offence.
29.In view of the abovesaid discussion, the accused is liable to be charged Crl. Rev. No. 313/19 Harminder Pal Singh Shah Vs. State Page no. 10 of 11 for the offences u/s 323/341 IPC whereas he is liable to be discharged for the offence u/s 354/356 IPC.
30.Accordingly, the impugned order dated 01.08.2019 passed by Ld MM (Mahila Court02)/West/THC is set aside to the extent of framing of charges u/s 354/356 IPC against the accused/revisionist herein.
31.The revision petition filed by the revisionist Harminder Pal Singh is hereby disposed of.
32. File of revision petition be consigned to Record Room after completing necessary formalities.
33. Trial Court Record be sent back.
34.Copy of order be sent to Ld MM (Mahila Court02)/West/THC.
ANNOUNCED IN THE OPEN COURT ON THIS 01st DAY OF OCTOBER 2022.
(Manish Khurana) Additional Sessions Judge04 West/Tis Hazari Courts Delhi/01.10.2022 Crl. Rev. No. 313/19 Harminder Pal Singh Shah Vs. State Page no. 11 of 11